Police Reform and Social Responsibility Bill

Memorandum submitted by Labour Friends of Palestine & the Middle East (PR 118)

Representations on Clause 151

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1. Labour Friends of Palestine & the Middle East is a lobbying group committed to a two-state solution leading to peaceful, sustainable, viable and secure Palestinian and Israeli states. We are supported by 72 Labour Members of Parliament.

2. The Israeli government has been lobbying for a change in our laws on universal jurisdiction and this has resulted in clause 151 of the Police Reform & Social Responsibility Bill.

3. In our view, it is wrong that British law is being changed as a result of pressure from another country in a way that will undermine the rule of law and the separation of powers and provide effective impunity for people who may have committed war crimes. This is not an overly litigious subject area. There have been only 10 applications for arrest warrants in 10 years, only two of which have been granted. There are already significant protections to prevent vexatious litigation, as the DPP currently has an option to take over private prosecutions. The court also retains the power to stop any proceedings as an ‘abuse of process’ which could apply to any malicious prosecutions.

4. We believe that peace between Israel and Palestine, and indeed peace in the other conflicts in the region, cannot be achieved as long as successive Israeli governments are allowed to commit frequent and continuous breaches of international law – by building settlements and by building the separation barrier on occupied land, by annexing East Jerusalem, by blockading Gaza. Israel has also been judged by United Nations inquiries to be guilty of war crimes and crimes against humanity. Significant atrocities in recent years include Operation Cast Lead (1,417 Palestinians killed); use of white phosphorus; extra judicial killing using British passports; and the killing of humanitarian workers on board the SS Mavi Marmara.

5. The timing of any such a clause at the behest of the Israeli government is extremely damaging to the UK following on from successive notable human rights incidents. It would give the impression that the UK are aiding and abetting Israel to commit war crimes against Palestinians. This is particularly the case given that Israelis visiting the UK on government business are protected by diplomatic immunity.

6. The present amended wording of the clause reads ‘Where a person who is not a public prosecutor lays an information before a justice of the peace in respect of an offence to which this subsection applies, no warrant shall be issued under this section without the consent of the Director of Public Prosecutions’. In other words, the DPP has a veto.

7. It is argued that the change from AG to DPP is sufficient. However, the DPP is appointed and superintended by the AG who in turn is appointed by the Prime Minister and is a government minister so both are subject to political power. No one would doubt the integrity and independence of the present DPP, Keir Starmer QC, but the law must be robust enough to apply to all possible future DPPs and AGs.

8. The former Labour AG Lord Morris described in evidence to the Joint Committee on the Draft Constitutional Renewal Bill how Attorney Generals exercise their influence on DPPs: "What happens is this: you have regular meetings with the DPP maybe once a week; he or she will come along with a whole list of very serious cases and seek your advice. He or she will go away and take the decision. It is their decision, having heard your advice."

9. The former Conservative AG Lord Mayhew agreed with him: "It is very important that ….. the ultimately responsible person … is accountable to Parliament. How can that happen if the director is entitled to say ‘Well, I am sorry, but it is my decision’, and you happen to disagree with it? You have to stand up in the House of Commons and you have to say, ‘This is a decision with which I disagree’. That is not going to do much for public confidence in the criminal justice system."

10. The present DPP has confirmed that he would consult the AG before taking a decision on an arrest warrant application. It would take a bold DPP to agree to an arrest warrant application if he or she already knew that the AG would veto a prosecution on public interest grounds. It would not only make the legal system look foolish but would cause diplomatic ructions if the visiting ex-minister of an ally were arrested with the DPP’s consent only to be released a few weeks later because the AG withheld consent for a prosecution. Whether someone has committed a crime or not is not a political issue, but a judicial one. It turns a matter that can only be described as judicial, into a political issue.

11. It is incorrect to suggest that local magistrates make such decisions. Instead applications for arrest warrants for crimes of universal jurisdiction go before specialist District Judges based at the City of Westminster Magistrates’ Courts. The experienced District Judges are fully aware of the sensitivities involved when they are dealing with applications for arrest warrants for suspected war criminals and they will only be granted provided that the legal conditions as outlined in R v West London Magistrates’ ex parte Klahn are met. Namely, that the offence is recognised in law and that the ingredients of the offence are prima facie present; that the alleged offence is not time barred; that the court has the relevant jurisdiction and that the informant has the necessary authority to prosecute.

12. The issuing of a summons and similarly an arrest warrant is a judicial act with there being no requirement for the applicant seeking an arrest warrant in a private prosecution to have notified the police in advance.

13. It is incorrect to suggest that such decisions can be made on flimsy evidence. The test applied by the Senior District Judge is that the evidence must be such that could lead, if uncontradicted, to a prosecution.

14. What is essential, however, in universal jurisdiction cases, is timeliness. A war crimes suspect is often a visitor who is likely to be within the jurisdiction of the court for only a few hours or days and a timely decision by the court can be of the essence in effecting an arrest and securing justice for the victims. That is the rationale for the difference between arrest and prosecution in universal jurisdiction cases. The DPP has stated that it is likely to take him ‘hours’ to be able to review evidence on an individual case. In contrast, a private individual might be quicker to act. Given that at any stage, the DPP can, in any event, stop the prosecution, it is a small protection that ensures that the UK is not complicit in war crimes.

15. However, it is right to say that if - contrary to our arguments - a clause is thought necessary, the clause could be amended to place a duty on the court to put the DPP on notice of the application. This would allow the DPP to argue against the arrest if he or she so wished at the court before its execution; and reduce the risk that a war criminal would leave the jurisdiction.

16. An amendment might read:

‘Where a person who is not a public prosecutor lays an information before a justice of the peace in respect of an offence to which this subsection applies, and save in circumstances where time is crucial to prevent the absconding of the accused, the Director of Public Prosecutions must be put on notice prior to the warrant being issued.’

17. Despite the proposed amendment above we urge Parliament not to allow her policies to be manipulated as a result of the lobbying of a foreign country acting in their own interests.

FEBRUARY 2011