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5.16 pm

Mr. Eric Joyce (Falkirk) (Lab): I will not detain the House, but I think there is an opportunity to raise an issue within the terms of the debate. It relates to a different part of the world: the eastern region of the Democratic Republic of the Congo. A number of people from that country are members of the FDLR, which is a rebel organisation. They live in Europe, having left Rwanda or the DRC. Some of them live in Germany and others live in the UK. Under the existing legislation, and under the proposed Government amendments discussed by my hon. Friends, they could still be apprehended.

The question is a technical one. There is probably sufficient information to arrest some individuals who are resident in the UK, and the UN group of experts investigating the issue has been somewhat hampered by the failure of the UK and French Governments to give it certain information such as telephone numbers, which it could pass on so that those people can be arrested. I understand that that constraint has come about because of privacy laws in the UK.

This is not something on which my hon. and learned Friend the Minister will able to respond immediately, but she may be able to pass it on to the relevant Minister. I recently had a meeting about the issue in general with the Minister for Africa and the UN, Baroness Kinnock, in the other place, and she said she would look into it in due course. However, it should continue be raised in debates such as this, because it is not right just to debate it when it comes to matters African. These things have a way of disappearing from the agenda.

The Government have introduced amendments to cover people in the UK accused of war crimes and genocide. Because the legislation is going to be amended, facilitating the arrest of these people- [ Interruption. ] My hon. Friend the Member for Walsall, North (Mr. Winnick) is referring to something different. The legislation to which I am referring will enable those people to be arrested in the UK and, I suspect, in the meantime, they can flee overseas. They may stay in other parts of Europe, which takes us back to the need for co-operation between European Governments and for providing things such as telephone numbers to allow
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the UN group of experts to conduct investigations and provide information to the Governments, notably in Germany and the UK, so that those people can be arrested. I simply wanted to raise that matter: perhaps my hon. and learned Friend can pass it on to the relevant Ministers.

5.18 pm

The Solicitor-General (Vera Baird): I congratulate my hon. Friend the Member for Walsall, North (Mr. Winnick) on obtaining this debate on an issue that has attracted significant attention in recent weeks, and has done so, too, today. I am grateful-and I am sure that he is-for the contributions of my hon. Friends the Members for Brent, North (Barry Gardiner) and for Islington, North (Jeremy Corbyn) on this topic. I admire the way in which my hon. Friend the Member for Falkirk (Mr. Joyce) has taken the opportunity to raise an issue that is close to his heart. If he is not going straight to Falkirk after the debate, and can tell me a little more about the issue, I am happy to do what I can to help him.

My hon. Friends the Members for Falkirk and for Walsall, North were speaking at cross-purposes a moment ago. My hon. Friend the Member for Walsall, North does not want any change in the law, but the change in the law that my hon. Friend the Member for Falkirk was talking about was one, I think, of which my hon. Friend the Member for Walsall, North would approve. We have broadened-I say this in very general terms, not wishing to be specific at all-our ability to prosecute people who appear to be guilty of war crimes and genocide and who are living in this country. That, I think, is where my two hon. Friends got off on the wrong foot with each other.

The criminal law in England and Wales is primarily territorial. That is to say, it applies to acts committed by people of any nationality who are in England and Wales, not ordinarily extending to offences committed outside its borders, even when committed by British citizens. There are exceptions, which are drawn case by case by Parliament. Some such offences cover British nationals outside England and Wales-for instance, in the case of murder. Some such offences extend to UK residents outside the UK-for example, some sex offences, and war crimes, genocide and crimes against humanity in the International Criminal Court Act 2001.

Exceptionally, some offences go further and apply to persons whatever their nationality and wherever the act was committed-for example, grave breaches of the Geneva Conventions Act 1957, torture, and the taking of hostages. As a general principle, that exceptional jurisdiction is the result of international treaty obligations. This is universal jurisdiction. It is a vital part of our law, to which we are 100 per cent. committed.

It is an unusual, though not unique, feature of the criminal law of England and Wales that a private individual may initiate criminal proceedings. That can be done by applying to a magistrate for a summons, which summonses the person to come to court, or by an arrest warrant, which issues forth to arrest and imprison, at least momentarily, the individual in question. The evidence required before a judge is required to issue such process-a summons or an arrest warrant-is very, very limited. The evidence required before a judge is required at law
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to issue such process is little more than some prima facie evidence that an offence known to the law has been committed by the person named-not a prima facie case, some prima facie evidence.

Moving on into this process, there is a possible anomaly at present. A warrant for arrest, which is obviously a more draconian process than a summons, can be issued solely on the basis of that level of evidence. As a generality in the case of very serious offences, including war crimes-those that attract universal jurisdiction-the Attorney- General's consent to a prosecution is required. That is as a generality. Without the consent of the Attorney-General, nobody can be required to answer such an allegation. Without the Attorney-General's consent, a summons cannot be issued on the application of a private individual. However, in the case of a request for an arrest warrant, perhaps oddly, but because of a provision in the Prosecution of Offences Act 1985, there is no requirement for the Attorney-General's consent to be given until later in the process.

Let me be clear. The Attorney-General's consent is required to prosecute a war crime, torture or any other similar grave breach, and no prosecution can proceed far without her consent. But whereas consent is a prerequisite for the issue of a summons, it is not a prerequisite for the issue of an arrest warrant. That consent can come after the issue of an arrest warrant.

The net result is that a private individual in the UK can secure the arrest of a non-resident foreign visitor to this country-or of a British person, for that matter, but that is not the topic of this debate-on the basis of prima facie evidence only, which may subsequently prove insufficient to gain the Attorney-General's consent, insufficient for any prosecution to go forward, and insufficient to be taken any further at all by an investigation by the police or the prosecution authorities, let alone insufficient to bring a conviction.

Although I admire immensely the power with which my hon. Friend the Member for Islington, North argues his case, I am aware of no situation in the UK whereby the Attorney-General decides on the issue of proceedings. As I have set out, she can consent to an application and the Director of Public Prosecutions usually brings an application, but its release-the judicial part of it-is always done by a judge. That could not be changed; the separation of the powers is quite clear.

Whatever happens in the issue of process stage, the Attorney-General's consent is needed immediately afterwards. The private prosecution jurisdiction that my hon. Friend is troubled by has nothing to do with the Pinochet case, which was not a private prosecution. The process was issued over here from the Spanish court, and it then became complicated, as my hon. Friend has described, but if the right to a private prosecution were totally taken away, and no one suggests that it should be, the Pinochet event would still happen. The private prosecution is not the foundation of the law upon which we all rely and intend to cleave-namely the law of universal jurisdiction-either. Although some elements arose, the law has moved on extremely strongly to protect more people and to give more universal jurisdiction in the intervening years.

Jeremy Corbyn: Will my hon. and learned Friend confirm that in the Pinochet case, the then Home Secretary granted an extradition warrant, and that Pinochet was
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therefore detained and, subsequently, there was a legal process? However, the then Attorney-General declined to mount a UK prosecution against Pinochet, and he relied solely on the Spanish and, indeed, Belgian applications for extradition. Thus, the then Attorney-General made a political decision not to prosecute Pinochet within the UK's jurisdiction. There was a reliance on the Spanish prosecution.

The Solicitor-General: Truly, I do not know. I cannot remember whether that is right or wrong, but it is a dangerous mistake to call a decision taken by the Attorney-General a "political decision", because the Attorney-General is obliged to look after the interests of the public and, indeed, the rule of law. When taking procedural decisions in connection with proceedings, they are not acting in any way as a politician; they are obliged to separate all those interests. Having said that-firmly, strongly and clearly, I hope-I do not remember whether the then Attorney-General decided that there should not be a prosecution, whether the matter never arose or whether there was a conflict of jurisdiction and there could not be any prosecution. I could not tell my hon. Friend.

Section 6(2) of the 1985 Act permits the Director of Public Prosecutions to take over any case that has been commenced by a private prosecution. There are conditions, set out on the Crown Prosecution Service website, under which the DPP will take over such a private prosecution, and the DPP may then pursue the case. However, if the full code test within the CPS code cannot be made out, because either the evidence to suggest a 51 per cent. chance of conviction does not exist, or there is insufficient public interest in it, although I imagine that the second would be a rare occurrence in such a case, the DPP may discontinue a case. Thus the power to issue a warrant on prima facie evidence may not necessarily result in the matter being taken very far.

However, the DPP may equally take over and take forward a prosecution, and that would involve a police investigation. The police would investigate and, in due course, seize what opportunity they had to make an arrest, if an arrest became appropriate. A prosecution could therefore follow-again, assuming that the test in the code for Crown prosecutors were made out.

In terms of the processes that I have described, it may become plainer and plainer that if a UK citizen has evidence of war crimes or of another crime that commands universal jurisdiction, the right course to pursue is to take this information to the police so that they can investigate it under the supervision of, or in partnership with, the CPS. There is a specialist unit in the Metropolitan police to deal with those cases. It may become reasonably clear that very little will be lost in doing that instead of seeking to exercise a right to obtain a summons or an arrest warrant, which could have a very short-lived effect and could cause difficulties of another kind to which I shall turn in a moment. Of course, the difference between reporting a matter to the police and leaving it to them to investigate and take further and issuing private process is the private arrest. It may be that some separate purpose is served by that in itself.

The UK has a duty under the Geneva conventions-the torture conventions and other conventions-to do as my hon. Friend the Member for Islington, North said: to seek out in order to extradite or to prosecute within
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our own jurisdiction people who are suspected of the grave crimes in question under those conventions. It is very important to make it totally clear that we as a Government are determined to do our duty in fulfilling our obligations under that law, as we did, for instance, in the case of the Afghan warlord, Zardad, who was successfully prosecuted for torture offences here in the UK in 2005. We are absolutely committed to upholding these conventions and to upholding the principles of universal jurisdiction. There can be no impunity for these most grievous of crimes.

There can be a potential impact on our international relations if attempts are made by a private person to arrest one of a foreign state's senior politicians during a visit to the UK. There has been discussion about a particular case. We need to be engaged in the middle east, as in other conflicts and post-conflict situations, if we are to carry out our international role as a member of the UN Security Council and negotiate in the interests of our own security. There are inevitably two sides to a conflict, and we need to engage with those who have been, and are, involved in a conflict if we are to be able to try to bring such a conflict to an end or to ease it. It would not be helpful if the use of such a power of application by a private citizen for a warrant for arrest made a person reluctant to visit the UK, notwithstanding that they may have a leadership role within their country and that we need to talk to them about such a matter.

Before I finish, I want to make two other points. First, I emphasise that nothing that has been said here is at all to undermine the independence of the judiciary, who will consider each and every case of every kind and of every nature, whether privately or publicly brought, on its merits. Secondly, although the issue that brought on this debate concerned an Israeli citizen, the position and the tensions can be equally present with other countries' nationals.

Mr. Winnick: I hope that my hon. and learned Friend recognises that I emphasised more than once that the Attorney-General must be involved in the prosecution. I made that clear, and she has confirmed it. However, she just said that the same situation may apply with regard to other countries. Clearly, this is not about Israel as such; no one could accuse me of having some sort of anti-Israeli vendetta, however much I disagree with many aspects of Israeli policy, needless to say. Is it not the case that if there is to be any change, primary legislation will be required? I would be grateful if she could confirm that. It goes without saying that I would be opposed to changes of the sort that she has described.

The Solicitor-General: I think that I am right in confirming that primary legislation would be required.

My point was not a suggestion that my hon. Friend had a particular view about the middle east situation, but that the position of an Israeli citizen brought about the debate in this Chamber. None the less, it is important to say that the position that that situation puts us in, and its accompanying tensions, can exist in relation to other country's nationals, and it stands separate from the position of the UK on any particular political issue.

I am glad that we have had the opportunity to discuss the matter and that I have had the chance to set out the current position in the law.

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Jeremy Corbyn: Can the Solicitor-General confirm a point? As I understand it, there has to be primary legislation. Does she intend to introduce such legislation?

The Solicitor-General: All I can say is that I do not believe any change could be brought about if it were the Government's will to make a change without primary legislation.

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I am glad to have had the opportunity to set out the current position, and the issues to which it gives rise, and I congratulate my hon. Friend the Member for Walsall, North on obtaining this highly contemporary debate.

Question put and agreed to.

5.36 pm

House adjourned.

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