Police Reform and Social Responsibility Bill

Memorandum submitted by Hickman and Rose Solicitors (PR 128)

These submissions concern Part 4, clause 151, of the Police Reform and Social Responsibility Bill ("the Bill") and the proposed restriction on the issue of arrest warrants in private prosecutions.

We are a firm of solicitors [1] who regularly acts for victims of war crimes, torture, crimes against humanity and genocide. From time to time we are instructed to invite the Metropolitan Police Service (MPS) and/or the Crown Prosecution Service (CPS) to take action to investigate and/or prosecute suspects of these grave crimes who are in our jurisdiction or imminently expected here.

We are restricted in what we can say in these submissions due to issues of client confidentiality. Some cases of this firm relating to Palestine and Israel are in the public domain, but (as the CPS and police know very well) we have been instructed in cases arising from several different jurisdictions. We are therefore able to address you on the basis of experiences drawn from cases from a variety of jurisdictions and which have gone through various phases and involved different degrees of urgency.

We do not set out here the very compelling reasons why no change in the law on universal jurisdiction is required – in that respect we fully adopt the submissions that you have already received from JUSTICE.

We make the following short relevant points from our experience as practitioners in this field that we hope will be helpful, in particular in the light of evidence you received in Committee from the Director of Public Prosecutions (DPP) on 20 January 2011.

1. In our experience the MPS does not have the resources (and/or the will) to investigate universal jurisdiction cases. When he addressed you on 20 January 2011, the DPP indicated that he would usually expect the arrest and interview of a suspect to throw some evidence up which cannot be the case when a suspect is arrested on a private arrest warrant (as the suspect cannot then be interviewed by the police). In all our experience to date, all of our clients would entirely agree with this and all of them prefer that the police use their ordinary arrest powers to arrest and detain and question a suspect, on being provided with strong evidence of a suspect’s liability for a serious crime for which this country has universal jurisdiction. However, in every case we have found the MPS AND the CPS unwilling and/or unable to act. In the Doron Almog case for example, the MPS were given the evidence files on 26 August 2005 and they were still unable to make a decision within 14 days as to whether to make an arrest on the suspect’s anticipated arrival in the UK on 11 September. It was only when time ran out that our client was forced to make an application for an arrest warrant to the senior district judge on 9/10 September 2005. We have other examples of the reluctance of the MPS to act, not limited to Israel/Palestine, from 2005 to recent times, but we are unable to set out further details from those examples here – but they are all similar to the Almog case.

2. The DPP asserted in his evidence that cases need to be referred to the MPS to be properly investigated. However, that fails to illuminate a very significant problem in current practice. In our experience since 2005, the MPS view, confirmed on several occasions and in several forums, is that they will not make decisive progress to investigate cases where they believe they will not be granted access (via formal requests) to the country where the alleged crimes were committed. The MPS seems to consider that such access is a vital and indispensible part of the investigation of each and every case. This serves to highlight the vital need of private prosecutions, because local investigators can and do fill this gap in such cases. This means that it is crucial to the victims to retain and indeed nurture privately investigated prosecutions, without which our treaty and moral obligations to prosecute the gravest crimes for which we have universal jurisdiction would be a dead letter. Only a small minority of victims are likely to be in the exceptional position of coming from former conflict zones where, for example, we now have a military presence enabling police access to scenes of crime and to meet witnesses in their own country (i.e. the only universal jurisdiction torture prosecution to have been conducted in England to date is from Afghanistan), but where the local legal system is unable or unwilling to mount prosecutions.

3. The DPP also told you that his much preferred route if anyone wants to pursue a crime of universal jurisdiction is for the complainant to commence discussions with the CPS very early in the process. However, this is completely at odds with our experience to date. We tried to enter into such a dialogue with the CPS on behalf of clients from Palestine after the Doron Almog arrest warrant in 2005, precisely so as to avoid last minute decision making in relation to suspects who (at least at that time) were known to travel outside Israel, but the CPS returned our evidence files and asked us not to send them and more files "as we have no role in the matter and will be unable to do anything with it." (We enclose with this note a copy of that letter, dated 22 November 2005.) It is precisely due to the inaction of the MPS and/or CPS that on a number of occasions we have reluctantly advised our clients to make an application for an arrest warrant when the arrival of a suspect has been imminent.

4. In all our cases, our clients have only made an application for an arrest warrant after (a) asking the MPS and/or CPS to take action, and (b) getting a negative response or no response at all to such requests. In our experience the MPS and CPS have persistently failed to make swift decisions in the time available (i.e. whether to start an investigation or make an arrest). This is a chronic problem and the evidence session from the DPP does not convince us that it has been or will be adequately addressed to make the proposed changes workable in practice. It would not surprise us to learn that the coalition Government is cynically aware of this and has communicated as much to the Israeli Government.

5. As made clear above, the MPS had prior notification of the Almog arrest warrant application and the hearing of that application, and (as a matter of routine) they consulted with the CPS. Either or both could have attended the hearing or engaged with us in the process but they chose not to do so in that case. Indeed, we have never assisted a client to make an application for an arrest warrant without sending the evidence first to the prosecuting authorities and trying to enter into a dialogue with the MPS and/or CPS. Only when such dialogue has failed or been rejected have we then given notice of the date and time of the court hearing so that the police/CPS have the option to attend.

6. In the Almog case, the Senior District Judge granted the arrest warrant after a hearing lasting over an hour and a half and after an adjournment overnight in which he looked carefully at the witness evidence presented to him before ruling in a further hearing the next day that there was "evidence which could be received by a court in the United Kingdom which could, if uncontradicted, establish the elements of the offence alleged". In our experience it has never been the case that the senior judge that hears the applications in these serious cases has only a cursory look at the evidence, as the DPP suggests, before exercising his or her discretion whether to issue the warrant. A prima facie case must be made on the basis of admissible evidence.

7. The DPP acknowledged that the arrest warrant is a device which the magistrate will only deploy if he or she is satisfied that you cannot otherwise get the person before the court. This was precisely the case in Almog where Senior District Judge Workman ruled: "I am satisfied that if I do not issue the warrant there is a substantial risk that the proposed defendant would leave the country". In cases of this gravity, where there is a prima facie admissible case that the suspect has committed a grave crime and there is a private prosecutor willing to prosecute the case in the teeth of inaction by the CPS and/or the MPS, there is nothing wrong with the current process where the suspect faces the inconvenience of remaining in the jurisdiction while the criminal process gets under way. In the Doron Almog case, if the MPS had carried out the arrest, he would have been granted bail (under stringent conditions to prevent his flight from the UK).

8. The DPP suggested that his decisions on prosecution would be susceptible to judicial review. However, as lawyers will be aware, it is very difficult to persuade the courts to exercise their discretion to quash a decision involving the use of discretion by the DPP. Further, in cases where time is very tight, any potential review remedy is likely to be academic as the suspect will have been able to leave the territory unhindered. The proposed change in the law will shift the balance from the rights of victims to access to criminal justice, to impunity.

9. The DPP suggests that he will apply the full Code for Crown Prosecutors in most situations as the test for his consent for an arrest warrant to be requested by a private prosecutor. This is unprecedented in our legal system. Indeed, it is a major constitutional shift away from the DPP giving advice on (or making) charging decisions to being directly involved in arrest decisions. It is unfamiliar territory for the CPS or DPP and so it is unsurprising that the DPP only seems to be able to fall back on the Code Test for bringing charges, which can never be and should never be the basis for making arrest decisions, even in cases where the fact of the arrest warrant will limit what can be done by way of questioning the suspect.

10. Of great significance is the DPP’s evidence that it is inevitable that he would consult the Attorney-General if he is given this new power via clause 151. of course, the Attorney-General (acting no doubt as a responsible Law Officer) may well decide that it would be appropriate to invite the views of other Government ministers, in order to acquaint themselves with all the relevant considerations, so as to enable them to assess whether it was contrary to the public interest for a prosecution to proceed (i.e. conduct the practice familiarly known as a "Shawcross exercise", since it is based on a statement made by Sir Hartley Shawcross QC, then the Attorney-General, in the House of Commons on 29 January 1951. The effect of the statement was that when deciding whether or not it is in the public interest to prosecute in a case where there is sufficient evidence to do so the Attorney General may, if he chooses, sound opinion among his ministerial colleagues, but that the ultimate decision rests with him alone and he is not to be put under pressure in the matter by his colleagues). [2] It would not be surprising if this happened before the Attorney General made a decision on what to say to the DPP when asked for a view as to whether the DPP should permit a private individual to apply to a judge for an arrest warrant, pursuant to clause 151 if enacted. Our clients are obviously deeply concerned that the consultation process will constrain the DPP’s decision by in reality making it political and that (short term) political expediency will in practice prove decisive rather than the strength of the evidence in any particular case or the long term interests of this country in upholding the rule of law. In any event, based on our experience, these steps will inevitably build further delay into the process which is already dysfunctional, and deprive time-sensitive cases from any prospect of a criminal process (e.g. one quite possible outcome under clause 151 would be a failure by the DPP to make a decision in time, based on an incomplete consultation with the Attorney General, which even if challenged by judicial review would not necessarily lead to a decision without the suspect being tipped off or simply having enough time to come and go before any final DPP decision is made on whether to permit the complainant to apply for the warrant).

11. As we have always given the MPS and/or and CPS notice of an arrest warrant application, we are aware that, as a matter of course, the CPS gives early advice to the MPS on questions of jurisdiction and immunity. In all of our cases, the CPS and/or MPS could have attended and addressed arrest warrant hearings. Our clients would not have objected to this and indeed would welcome it. Our clients have always been represented on warrant applications by Queen’s Counsel who are experienced prosecutors, and the evidence files have been accompanied by senior Counsel’s positive advice on the admissibility and sufficiency of evidence for prosecution. There is thus no question of the evidence being flimsy in cases where arrest warrants are granted.

12. We have always been instructed by individual victims, not "politically motivated organisations that are trying to score a cheap point" (Michael Ellis, 20 Jan 2011). This comment appears to be a calculated (politically motivated) attempt to divert attention away from the victims of serious international crimes and bereaved relatives of such crimes. It is an insult to such people to suggest that they want to score cheap points or are being manipulated by others to that end. In any event, it is entirely wrong for our clients to be denied access to justice because someone somewhere may decide to make political capital from their attempt to apply the rule of law in their cases.

13. There are clear safeguards available to magistrates to reject applications from those who are engaged in attempted or actual press stunts, such as requiring a prima facie case from admissible evidence. We understand that there have only been 10 applications for arrest warrants over the last 10 years and only two warrants issued, and as far as this firm is aware, none on the basis of flimsy evidence. However, genuine victims making genuine applications would have no complaint if frivolous or vexatious applicants were made the subject of wasted costs orders, were that thought to be necessary to deter abusive applications.

14. The DPP suggested to you that the Attorney General has to consent to the prosecution before the defendant enters a plea, and that the window between arrest and requiring the Attorney General’s consent is short. However, this is likely to be after an assessment of several weeks and taking into account the stance taken by the defendant.

February 2011