What is happening?
The government is seeking to change the law to prohibit the issue of an arrest warrant by a magistrate on application by a private citizen against a person suspected of one of a list of international crimes – torture, war crimes, piracy and hijacking – unless the Director of Public Prosecutions gives his consent. The relevant provision is clause 151 of the Police Reform and Social Responsibility Bill, which is shortly due to be considered by a Public Bill Committee of the House of Commons.
Why does the government want to change the law?
Good question. The previous Labour government also wished to make this change and issued a consultation paper on the topic before the last general election. The paper cited two reasons: first, that it is anomalous and unsatisfactory that the Attorney General is required to consent before a private prosecution can be brought for these crimes but there is no such bar on the issue or execution of an arrest warrant sought by way of private prosecution (and further, that a much lower standard of evidence is required for the arrest warrant than to prosecute the suspect), and secondly, that the situation risks harm to Britain’s foreign relations. This second reason hints at the political background: William Hague reportedly faced an awkward situation during a diplomatic visit to Israel because of the dismay of the government there that the UK had failed to address the perceived problem of such warrants being available.((‘Israel sparks legal row during William Hague visit’, Guardian, 3 November 2010)) This followed the issuing of warrants against former Israeli Foreign Minister Tzipi Livni in 2009 and Major General Doron Almog in 2005.
Why does JUSTICE oppose a change in the law?
Two important issues of principle are at stake here: firstly, the right of the citizen to seek a private prosecution and secondly, the UK’s international obligations to investigate and prosecute international crimes such as war crimes, torture and crimes against humanity.
The right of a citizen to bring a private prosecution for a criminal offence is one of the oldest rights known to the common law.(( Gouriet v Union of Post Office Workers  AC 435 at 439-440 per Lord Wilberforce: ‘Enforcement of the law means that any person who commits the relevant offence is prosecuted. The individual … who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right … goes right back to the earliest days of our legal system…’ [emphasis added]. See also at 497 per Lord Diplock: ‘In English public law every citizen still has the right, as he once had a duty (though of imperfect obligation), to invoke the aid of courts of criminal jurisdiction for the enforcement of the criminal law by this procedure’.)) As Lord Wilberforce noted in 1978, even though most prosecutions are nowadays undertaken by the Crown, the right remains ‘a valuable constitutional safeguard against inertia or partiality on the part of authority’.((Ibid at 440.)) Further, private prosecutions are a useful supplement to the work of public prosecutors: in the Court of Appeal in 2009, Lord Justice Leveson noted that private prosecutions were often commenced by organisations with specialist knowledge of the particular area of the criminal law concerned, such as the RSPCA in animal cruelty cases and FACT (the Federation Against Copyright Theft) in copyright infringement cases, because of the difficulty in pursuing such cases through the police and the CPS:
These cases are complex, specialist knowledge will inevitably be required to pursue them, and each case is likely to be difficult, time consuming and expensive …. In a time when allegations of terrorism and other extremely serious crime take up more and more time and involve ever increasing resources, it is inevitable (and appropriate) that the CPS will have to be selective.((Ibid, para 51.))
International criminal cases are similarly ‘difficult, time consuming and expensive’ – evidence and witnesses are usually located outside the UK and British investigators and prosecutors would have difficulty obtaining access to them; and depending on the circumstances the relevant state may not cooperate with UK police and prosecutors.
In relation to our international obligations, the 1949 Geneva Conventions require that universal jurisdiction be exercised for war crimes committed in international conflicts; and measures necessary for the suppression of all crimes committed in internal conflicts are taken. ((The latter by virtue of common Article 49/50/129/146. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has held that customary international law does impose criminal liability for violations of common Article 3 of the Geneva Conventions: Prosecutor v Tadic, Case No IT-94-1-T 7/5/97, 2 October 1995, 35 ILM (1996) 32, para 137. ))The United Nations Convention Against Torture and Cruel, Inhuman or Degrading Treatment and Punishment obligates the UK to ‘take such measures as may be necessary to establish its jurisdiction over [torture offences] in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him’. ((Article 5 ))Universal jurisdiction, whereby a state can try a person present on its territory for an international crime without having any other specific link to the relevant offence, is an important method of ensuring that there are no ‘safe havens’ for international criminals and acts as a deterrent against participation in offences.
How would this legal change affect the exercise of universal jurisdiction?
We believe that the change proposed in clause 151 of the Police Reform and Social Responsibility Bill would make it more difficult to apprehend suspects and for prosecutions to proceed. In giving consent to an arrest warrant, the Director of Public Prosecutions is likely to apply the test applied when considering whether to prosecute a suspect for any offence according to the Code for Crown Prosecutors – namely, is there sufficient evidence to provide a realistic prospect of conviction, and is the prosecution in the public interest. This test is more exacting than that applied by the experienced District Judges at the City of Westminster Magistrates’ Court who currently deal with these cases. In R v West London Justices ex parte Kahn, Lord Widgery CJ held that, when considering whether to issue a summons or warrant, magistrates should ‘at the very least ascertain’:
(1) whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present; (2) that the offence alleged is not ‘out of time’; (3) that the court has jurisdiction; (4) whether the informant has the necessary authority to prosecute. In addition to these specific matters it is clear that he may and indeed should consider whether the allegation is vexatious …. Since the matter is properly within the magistrate’s discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be given. Plainly he should consider the whole of the relevant circumstances.(( 2 All ER 221 at 223. Emphasis added. See also eg R (Green) v City of Westminster Magistrates Court  EWHC 2785 at para 35 per Hughes LJ: ‘The decision whether or not to issue a summons is a judicial one; it calls for the exercise of judgment’.))
The Lord Chief Justice also made clear that the magistrate ‘must satisfy himself that it is a proper case in which to issue a summons’, and ‘must be able to inform himself of all relevant facts’ including hearing from a proposed defendant if he feels it necessary to do so. ((Ibid)) Although the magistrate should not pre-empt any subsequent proceedings by holding a preliminary hearing on the evidence,((Ibid: ‘There can be no question, however, of conducting a preliminary hearing. Until a summons has been issued there is no allegation to meet; no charge has been made. A proposed defendant has no locus standi and no right at this stage to be heard’.)) nonetheless the magistrate must ‘decide whether or not on the material before him he is justified in issuing a summons’. ((Ibid, citing Lord Goddard CJ in R v Wilson ex parte Battersea Borough Council 1 KB 43 at 46-47.))
There is often very little notice that a suspect is due to arrive in the United Kingdom and could therefore be arrested on a warrant: while non-governmental organisations may have prepared evidence against suspects and be in a position to apply for a warrant at short notice, it is unlikely that the DPP will be in a similar position. Unless the DPP is to review evidence against hundreds of suspects in advance on the chance that they might arrive in the jurisdiction, he will have to consider evidence at very short notice. Any delay in issuing a warrant can allow a suspect to flee the jurisdiction or for their visit simply to be complete. Further, it is unclear how the DPP will apply the ‘public interest’ element of the test – is he to take into account that the suspect is a national or official of a state with whom the UK enjoys friendly (or indeed frosty) relations? And if so, how?
It is too easy for debates about arrest warrants for international crimes to descend into partisan arguments about the Middle Eastern conflict; in fact, the issue concerns the UK’s position in the fight against international crimes wherever they occur. International criminal cases have come before the UK courts concerning jurisdictions such as China, Afghanistan and Rwanda. It is vital for the UK to be active in the investigation and prosecution of the perpetrators of what are some of the most heinous offences on the statute book, and for the government to unequivocally condemn these offences and support the justice system in preventing and punishing them.