Police Reform and Social Responsibility Bill

Memorandum submitted by the Council for Arab British Understanding (PR 91)

1. About the Council for Arab British Understanding

The Council for Arab British Understanding (Caabu) aims to promote an enlightened and positive approach to Arab-British relations.  Founded in 1967, we are a cross-party group, the oldest and largest organisation of our kind in Europe. Caabu has over 90 British Parliamentary members and provides Secretariat services for the Britain Palestine All Party Group, as well as the Jordan and Qatar APPGs. We have organised over forty parliamentary delegations to the Middle East since 1997. For more information please visit www.caabu.org.

2. Summary

Caabu have reservations in relation to Clause 151 of the Police Reform and Social Responsibility Bill, namely the plans to change the law on the issuing of arrest warrants in relation to the application of universal jurisdiction. The clause will require that the Director of Public Prosecutions (DPP) signs off on any arrest warrant brought through a private prosecution.

In relation to Clause 151, Caabu believe:

· The law does not need to be changed. There is no evidence to suggest that the current system is being abused. Since 2000 only two arrest warrants have been issued in the UK under universal jurisdiction laws, out of ten applications submitted to a senior Westminster magistrate. Of the warrants signed no evidence has ever been presented to suggest they were issued erroneously or due to political motivation.

· The change will create a two tier legal system. Under English Common Law the DPP is not required to sign off on any other type arrest warrant. Why should this be any different?

· Under the proposed changes too much power is vested in the DPP. As the DPP meets on a weekly basis with the AG, a government Minister, to discuss cases, this potentially opens the process up to political interference. Whilst the independence of the current DPP is not in any doubt, it is not hard imagine a scenario where a more pliant person could come under pressure from the Attorney General over whether or not to approve a warrant. There is a real danger therefore that the issuing of warrants could become politicised. This was why the original proposal to have the AG consenting to the issue of an arrest warrant was dropped.

· If the government must change the law, an alternative approach could be found. In Canada, for example, the Attorney-General (AG) has the right to attend the court and argue for or against the issuing of a warrant, but does not have the right to veto.

We believe that a change to the law is unnecessary and would be gravely counterproductive to the global development of international law and justice. It would potentially allow those suspected of the most serious of crimes to travel freely to and from the United Kingdom .

3. Why the law does not need to be changed

The move to change the law on arrest warrants began under the previous government and has continued with the Conservative-led administration. Proponents of a change argue that warrants have been issued frivolously following weak and politically motivated private prosecutions.

It is also common to hear that at present a relatively junior "magistrate" can issue a warrant, therefore opening the system up to abuse and increasing the prospect of foreign leaders facing arrest when they have no charges to answer.

Neither motivation is correct. At present only a small of number of very senior magistrates, all based in Westminster, have the authority to sign an arrest warrant under universal jurisdiction legislation. These magistrates are highly competent and are certainly qualified to judge such cases. In order for them to issue a warrant they must believe that there is more than a fifty per cent chance that a conviction would follow. The system is robust and is not vulnerable to abuse. .

This is supported by the number of warrants approved by the courts. Since 2000 only two arrest warrants have been issued in the UK under universal jurisdiction, out of a total of ten applications submitted. [1] Both warrants were approved by judge Tim Workman, who is highly respected within the legal community and whose integrity simply cannot be questioned. Mr Workman has also rejected a number a similar applications.

Additionally, the Fourth Geneva Convention obliges all signatories, such as the UK, to actively hunt out persons responsible for grave breaches of the Conventions, and bring them to justice. Article 146 states the UK is:

"under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts."

In making it harder to obtain a warrant the application of Clause 151 could potentially run counter to this obligation.

4. Safeguards already exist

Proponents of a change often argue that in order for the UK to play an active role in foreign affairs, leaders and politicians must be able to visit the country free from the threat of prosecution. Safeguards already exist to ensure this however. Serving ministers for example enjoy diplomatic immunity, whilst non-ministers wishing to visit to UK to attend the likes of peace talks and negotiations, such as the 2009 conference on Afghanistan, can be granted temporary immunity under UN guidelines. (Can John confirm what this procedure is called?)

5. The case of Tzipi Livni

Much of the debate surrounding the application of universal jurisdiction arose in the wake of a warrant being prepared for former Israeli Foreign Minister, Tzipi Livni, in December 2009. A private prosecution was brought against Ms Livni following Israel ’s invasion of Gaza , known as Operation Cast Lead, and her role during the 22-day conflict as a member of the Israeli war cabinet.

The UN Fact Finding Mission into the invasion, known commonly as the Goldstone Report, found that during the conflict:

·         Israel had employed a policy that involved "the direct targeting and arbitrary killing of Palestinian civilians"

·         The Israeli military carried out a "deliberate and sustained" attack upon civilian targets such as private homes, food installations and water treatment works, in order to make life more difficult for the population of the territory

·         Israel had used weapons proscribed by international law, and deployed weapons that were unsuitable to the stipulated military aim of various operations

·         Grave breaches of international law had occurred, and that the contracting parties of the Geneva Conventions were obliged to pursue those responsible through domestic courts under universal jurisdiction

·         The continued blockade of the Gaza Strip constitutes the "collective punishment" of the territory's population, and constitutes a possible war crime

·         During Operation Cast Lead Israeli soldiers serving in the West Bank operated in an environment free from checks and balances

To our knowledge no government Minister has ever publically stated that they believe the issuing of an arrest warrant for Tzipi Livni was erroneous, nor has any Minister explicitly denied that she would have a case to answer for war crimes or crimes against humanity. The fact remains that the only qualified person to have viewed the evidence was a distinguished judge who believed enough evidence existed to justify the issuance of an arrest warrant.

Caabu believe that universal jurisdiction is precisely that – universal. It is only available for the most serious international crimes, which the UK recognises. The current system allows for the application of the law by the courts, irrespective of one’s nationality and based solely upon the evidence that is presented. A change to the law could potentially bring in a system it is apparently designed to prevent i.e. the politicisation of arrest warrants.

6. Objections with Clause 151

Clause 151 centres on the role of the DPP. As the law stands the DPP must give approval for a prosecution to proceed, but his decision is made only after an arrest has been made. The Bill will bring forward the involvement of the DPP, requiring that they permit the judge to sign off any warrant before it can be issued.

Caabu have a number of concerns regarding this.

· The role of private prosecutions as a right of English Common Law – It is a central tenant of English Common Law that an ordinary citizen can apply for arrest warrant, thus safe guarding against abuse by the Executive. To involve the DPP in the issuing of the warrant would be unique to universal jurisdiction cases, as this consent is not required in any other branch of English law. It should also be noted that to bring a case for war crimes or crimes against humanity is a deeply costly process, for which the government has little budget nor apparent appetite. The role of private citizens in bringing such cases is therefore essential to the application of international justice and should not be deterred.

· Threshold of evidence – At present a judge must be satisfied that there exists more than a fifty per cent chance a case would result in prosecution should it go to trial. Clause 151 is ambiguous over what threshold of evidence the DPP should apply and whether or not public interest in the prosecution should be taken into account. The government needs to clarify how the procedure will work under Clause 151.

· Timeframe – When dealing with foreign visitors to the UK it is essential that a warrant can be issued swiftly and efficiently. If the consent of the DPP is required there are genuine concerns that this could slow the process down, allowing suspects to leave the country before a warrant was issued. Assurances must be given that the DPP will consider cases immediately and reject or approve warrants in the quickest timeframe possible.

· Role of the Attorney General – Clause 151 clearly places a large amount of power into the hands of the Director of Public Prosecutions. As the DPP meets on a weekly basis with the AG, a government Minister, to discuss cases, this potentially opens the process up to political interference. In addition the current DPP openly admits to consulting with the AG over cases. Whilst the independence of the current DPP is not in any doubt, it is not hard imagine a scenario where a more pliant person could come under pressure from the Attorney General over whether or not to approve a warrant. There is a real danger therefore that the issuing of warrants could become politicised.

7. The Canadian model - A possible alternative

Whilst we do not believe that the law requires changing, a more appropriate model than is currently offered by Clause 151 could perhaps be found. In Canada for example the current system ensures that the Attorney-General must be notified before a warrant is issued and allows the AG the right to attend the court hearing and argue any objections, should they so wish. However, they do not have the right to veto a warrant that a judge believes is appropriate. Whilst we reiterate our belief that the current system should not be changed at all, the Canadian model could provide a potential compromise solution for the UK, and the DPP could be permitted to make representations to the court.