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Lord Bassam of Brighton: My Lords, the noble Viscount asks some interesting questions that require deeper consideration than we can give to them this afternoon. The question of how one addresses human rights abuses committed by heads of state in other jurisdictions who subsequently visit this country is an interesting one. Obviously, it is a matter to which we shall have to give further and clearer thought. I am sure that we would have to consider individual cases on a case-by-case basis and consider whether or not the individuals concerned have immunity. Those are important considerations. As regards the establishment of general rules in these matters, we shall have to give further thought to that. I have already made it clear that the Home Secretary will undertake a review of the Extradiction Act. That may have some bearing on these matters.
Lord Avebury: My Lords, is the Minister aware that the decision--correct though it may have been in the end--will be a great disappointment to all those victims of the regime of General Pinochet, particularly those victims in this country who have suffered, such as Dr Sheila Cassidy, a victim of torture under Pinochet, and the relatives of Fr Michael Woodward, who died as a result of being tortured on board a naval vessel in Valparaiso harbour after Pinochet came into office? Those relatives have recently supplied the Home Secretary with important new testimony regarding that case which was under consideration at the time the decision was made. Is not the assurance to those people that in future no one will be immune from prosecution for such crimes the best way to assuage their grief?
In answer to the point made by the noble Viscount, Lord Cranborne, will the Minister confirm that since we enacted Section 132 of the Criminal Justice Act 1988 a person who commits an act of torture in a foreign country, whether against a British citizen or against a citizen of any other country, is liable to the jurisdiction of our courts and will be dealt with in the future under a provision which has been made by the Home Secretary establishing a special unit in the Metropolitan Police to examine evidence which may be presented in cases of torture and which may result in prosecutions in our own courts as a result of decisions made by the CPS?
Lord Bassam of Brighton: My Lords, I am grateful for the noble Lord's questions. The noble Lord's summary of the situation is correct vis-a-vis our jurisdiction and abuses of UK nationals. The noble Lord mentioned a special unit to deal with this matter. We must take those issues carefully into consideration. I believe I have made plain that we have universal jurisdiction as regards torture. I refer to the important issue of the disappointment that some people will feel at the decision that has been announced. I fully understand and sympathise with the disappointment that many will experience as a consequence of my right honourable friend the Home Secretary's decision. However, important long-term gains have resulted from the way in which this case has unfolded and from the stand that my right honourable friend has taken. I believe that most people will welcome that in the future.
Baroness Hooper: My Lords, I too express my relief that Senator Pinochet has at last been returned to Chile. It is--and always has been, in my view--for the people of Chile to decide what should be done with him. However, looking to the future, and in view of the excellent relations we have always enjoyed with Chile, what have the Government in mind in terms of building bridges after this unfortunate incident, particularly as a new government are about to take office in Chile?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for making that point. We have always tried to ensure that we have the best possible relations with the Chilean Government. That has been the case in the past and no doubt it will continue to be the case in the future. With the change in the political administration of that country we shall no doubt renew our efforts to continue those good relations, particularly in business, trade and commerce. I believe that it is important to do so. As the noble Baroness wisely said, some relief will be felt at the return of Senator Pinochet to Chile, but there will also be divided opinions, which we must recognise.
Baroness Blatch: My Lords, should it turn out eventually that human rights abuses have occurred in Chechnya, would that mean that the president or prime minister of Russia would not be welcome in this country or, if they arrived in this country, would be subject to arrest?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for her question. The answer to her last point probably is that it would depend on whether they have immunity. As to whether they would face prosecution, that would be, of course, a matter for the police to consider, acting on information.
Baroness Blatch: My Lords, in repeating the Statement the Minister said that sovereign heads of state do not have immunity.
Lord Bassam of Brighton: My Lords, that is not my understanding of the Statement.
Senator Pinochet: CPS Role
4.30 p.m.
Lord Williams of Mostyn: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable and learned friend the Solicitor-General on the role of the Crown Prosecution Service in respect of Senator Pinochet.
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"The Crown Prosecution Service, as prosecuting authority for England and Wales, has today advised the Metropolitan Police Service that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would not be admissible in a criminal prosecution in England and Wales and could not be put into admissible form without a full police investigation. On the material presently available to the CPS therefore, there is no realistic prospect in this jurisdiction of convicting Senator Pinochet of any criminal offence.
"The CPS has also advised the Metropolitan Police Service that, in view of the independent medical report on Senator Pinochet commissioned by the Home Secretary, and taking into account representations made to the Home Secretary concerning the report, no court in England and Wales would allow a trial of Senator Pinochet to take place, whatever the evidence.
"Following that advice the Metropolitan Police Service has decided that no purpose would be served in seeking to effect the arrest of Senator Pinochet.
"These decisions are necessary because of Article 7 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that if a state does not extradite, it must consider whether to prosecute the person itself.
"Accordingly, following the Home Secretary's decision today not to extradite Senator Pinochet to Spain, the Spanish extradition papers were submitted formally to the CPS as the independent prosecuting authority for England and Wales.
"The CPS in turn formally referred the papers to the Metropolitan Police Service, which is responsible for investigating offences and deciding whether to arrest or charge people.
"In fact, the papers had previously been supplied to the CPS and the police and had been carefully studied by them, and so both the CPS and the police are in a position today to announce their decisions. But before I say more, let me set out the CPS's involvement in this case.
"First, there has been its role as agent for the Kingdom of Spain. That arose following Senator Pinochet's arrest on 16th October 1998 pursuant to a warrant issued by the fifth central magistrates court in Madrid. So, on 18th October 1998, the Crown Prosecution Service commenced acting as agent on behalf of the Kingdom of Spain in the extradition proceedings. It has continued to act for the Kingdom of Spain throughout the extradition process.
"In its role as agent for the Kingdom of Spain, the CPS has acted in accordance with the instructions of the requesting state. This is in accordance with long-standing reciprocal arrangements common between this jurisdiction and other countries. In doing so, it has been quite independent of the United Kingdom Government.
"In performing its role as agent for the Kingdom of Spain, the CPS has given confidential legal advice on the extradition proceedings and received instructions.
"I turn now to the separate, and distinct, function of the CPS in this matter, which is the main focus in this Statement--that is, as the independent prosecuting authority for England and Wales. Its involvement in this regard has arisen in two ways.
"First, in October 1998, two firms of solicitors, acting for a number of individuals, applied to the then Attorney-General for Law Officer consent to prosecute Senator Pinochet in this jurisdiction. This was for offences of torture contrary to Section 134 of the Criminal Justice Act 1988, and for offences of hostage taking contrary to the Taking of Hostages Act 1982. The papers in one of those applications was also copied by the solicitors to the Metropolitan Police Service, which in turn sought the advice of the CPS as prosecuting authority. In these circumstances, the then Attorney-General deemed it appropriate to liaise with the CPS before reaching a final conclusion on the applications for Law Officer consent to prosecute. The Attorney-General also received advice from senior Treasury counsel. Subsequently, the Attorney-General advised the solicitors: that decisions on whether or not to grant Law Officer consent to prosecute are made by applying the tests set out in the code for Crown prosecutors; that the legislation criminalising torture and hostage-taking is not retrospective--a point later confirmed by a decision of the Appellate Committee of the House of Lords; and that the material submitted in support of the applications contained insufficient admissible evidence against Senator Pinochet to justify the granting of Law Officer consent to prosecute for either offence.
"Consent to prosecute was, accordingly, refused.
"I should add here that a third firm of solicitors, acting for a number of Chileans, applied last week for my consent to prosecute Senator Pinochet for offences of torture. That application has been carefully considered and the advice of counsel obtained. Again, the code for Crown prosecutors was applied to the decision-making process. The first requirement of the code is that there should be sufficient admissible evidence for there to be a realistic prospect of conviction before a prosecution may follow. The application contained no evidence of a kind admissible in this jurisdiction and I accordingly declined to grant my consent.
"The second function of the Crown Prosecution Service, as prosecuting authority, has been to consider the case for a prosecution of Senator Pinochet in this jurisdiction under Article 7 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. I have already outlined that provision.
"The CPS and police recognised that Article 7 might come into operation in respect of the Spanish extradition papers. Therefore, in March and April 1999, to prepare for that contingency, the CPS obtained copies of all the relevant Spanish extradition papers. That was in its capacity as the prosecuting authority for England and Wales. The Metropolitan Police Service, as investigating authority, was also supplied with a copy of those papers. All this was done with the agreement of the Kingdom of Spain and the Home Office.
"The Spanish extradition papers were allocated to separate lawyers in the CPS from those acting for the Kingdom of Spain. The CPS's provisional conclusion was that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would not be admissible in a criminal prosecution in England and Wales; and that the material could not be made admissible without a full police investigation. The CPS advised the police along these lines. Whether or not the Metropolitan Police Service institutes a full investigation in this or any other case is a matter for it to decide.
"It may help the House to understand the CPS's provisional conclusion if I explain that in European extradition proceedings it is not necessary to bring evidence before a court to show that a person has committed the offences of which he or she is accused. All that is necessary is that the court here must be satisfied that the allegations amount to an extradition crime and that the formal request complies with the requirements of the Extradition Act 1989 and the European Convention on Extradition 1959. This explains why the CPS has come to its provisional conclusion that, in the absence of a full investigation by the police, there is no admissible evidence for the purpose of a prosecution here.
"In addition to this evidential consideration, the CPS, again in its role as independent prosecuting authority, received a copy of the medical report
- prepared by the independent experts commissioned by the Home Secretary. This was in January this year and with the consent of Senator Pinochet. The CPS has also seen the representations made to the Home Secretary concerning that report. The report and subsequent advice makes it clear that Senator Pinochet's ill health is now such that he would not be able to defend himself properly in any criminal prosecution brought in this country. The CPS's provisional conclusion in the light of this material was that no court in England and Wales would allow a trial of Senator Pinochet to take place because of his ill health, whatever the evidence. Again, the CPS advised the police of this.
"In reaching its provisional conclusions, the CPS consulted me. I agreed with them, after myself taking the best independent legal advice available.
"I should add here that my noble and learned friend the Attorney-General has not involved himself as Law Officer in this case. He and I agreed that his previous patronage of Redress, from which he resigned on taking ministerial office in May 1997, meant that it would be more appropriate if I handled the case. The solicitors acting for Senator Pinochet were advised of this in September last year.
"Following today's formal submission of the Spanish extradition papers to the CPS under Article 7(1), the CPS has confirmed its provisional conclusions: first, the material in the possession of the CPS would not be admissible in any criminal prosecution in England and Wales and it could not provide a realistic prospect of conviction; secondly, an investigation, for which the police are responsible, would be required to gather evidence admissible in this jurisdiction; and, thirdly, whatever evidence might be available, no court in England and Wales would allow a trial of Senator Pinochet to take place in view of his ill health. I agree with these conclusions.
"Accordingly the CPS has not applied for Law Officer consent to prosecute Senator Pinochet for torture in respect of the Spanish extradition material. The Metropolitan Police Service and Senator Pinochet's lawyers have been advised of the CPS's conclusions. The Metropolitan Police Service, which has taken its own legal advice, has decided not to arrest Senator Pinochet.
"The House will also be aware that on 11th and 13th November and 15th December 1998, my right honourable friend the Home Secretary received requests for the extradition of Senator Pinochet from the Confederation of Switzerland, the Republic of France and the Kingdom of Belgium. Further requests were received from the Republic of France on 4th February 1999 and from the Kingdom of Belgium on 12th October 1999.
"On 9th December 1998 the Home Secretary decided not to issue an authority to proceed with regard to the requests from France and Switzerland. On 27th January 1999 the Home Secretary decided not to issue an authority to proceed with regard to the request from the Kingdom of Belgium. On
- 22nd February 1999 and 19th November 1999 respectively the Home Secretary decided not to issue an authority to proceed in respect of the second French and second Belgian requests.
"Following the Home Secretary's decisions, the extradition papers were submitted to the Crown Prosecution Service as the prosecuting authority for England and Wales in accordance with Article 7(1) of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The CPS in turn referred the papers to the Metropolitan Police Service to enable the investigating authorities to consider them. The CPS also advised the police that the allegations contained in the Swiss, both French and both Belgian requests did not disclose offences which could be tried here since the conduct alleged in each of the requests occurred before the relevant legislation came into force.
"Accordingly the CPS will not apply for Law Officer consent to prosecute Senator Pinochet for torture in respect of the Swiss, French and Belgium extradition material.
"In performing its role under Article 7 of the convention in respect of the Swiss, French and Belgian material, the CPS has also taken into account the medical report commissioned by the Home Secretary and the representations made to the Home Secretary concerning Senator Pinochet's medical condition. The CPS has concluded that no court in England and Wales would permit a trial of Senator Pinochet to take place in these circumstances, whatever the evidence. The CPS has consulted me about these matters and I agree with the CPS conclusions".
4.43 p.m.
Lord Cope of Berkeley: My Lords, I warmly thank the noble and learned Lord the Attorney-General for repeating the Statement and for being willing to take questions on it, particularly in view of the fact that he had debarred himself, as it were, from the consideration for reasons which we understand entirely and accept.
I am a layman in legal matters, although I am not without helpful advice. I think that advice from A P Herbert would have been valuable in this case. As I understand from the Statement, at no time have the Crown Prosecution Service, the Metropolitan Police or the Solicitor-General considered that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would be admissible in a criminal prosecution in England and Wales, and that the material stood no prospect of convicting Senator Pinochet of any crime in the English courts. It would be helpful to know from the noble and learned Lord--because it was not revealed in the Statement--when the CPS first reached the view that no prosecution could succeed and why these proceedings could not have been brought to a conclusion at that point. On the assessment by the CPS of the evidence and the other
material available, if the action was bound to fail then it should have been brought to a conclusion at that stage.I realise that the CPS was acting as agent for the Kingdom of Spain in large part. After all, a lawyer owes it to his client not to proceed if, in his judgment, his case cannot succeed. He should not accept instructions to persist in something that is bound to fail.
I understand that no evidence is required to succeed in extradition proceedings alone--only allegations and the fact that the charges are covered by the relevant legislation. I should like to ask how it could ever be possible in an extradition case, where no evidence of that kind is produced, to prosecute within the United Kingdom.
I should like to ask about the legal costs of the whole affair. As I understand it, the costs total several million pounds. I am not clear how much of that will fall on the British taxpayer. Has the CPS been paid, or will it be paid, by the Kingdom of Spain for the work that it did in the role of agent?
This whole matter, from the legal point of view as well as in terms of the political and other considerations, will clearly be the subject of much further study by many people. Do the Government intend to publish in some form a full account of the affair? The Government have given quite a lot of information today. It would be helpful if a full, authorised account from the point of view of the Government could be set out, if only as a preliminary to the consideration of extradition law which is to take place. I would welcome such an account in the light of all the complexities of this particular case.
4.49 p.m.
Lord Thomas of Gresford: My Lords, I thank the noble and learned Lord the Attorney-General for repeating the Statement. I express my own relief that the Crown Prosecution Service has clearly acted professionally and properly in this matter and kept separate its functions as agent of Spain, on the one hand, and in its own capacity on the other.
While welcoming the Statement, there are certain lessons to be learnt. I am glad that there is to be a fresh look at extradition law. I wish to make three points. First, in cases of universal jurisdiction such as conspiracy to torture, as this one was, surely, until there is the establishment of the international criminal court, the United Kingdom should either accept the responsibility itself of prosecuting people who have committed these crimes--as I suggested to the House in July 1999 when last we debated this matter--or, alternatively, should refuse requests for extradition to jurisdictions with no greater claim than our own. I found it unedifying that countries should queue up to make extradition requests in this way.
Secondly, the Statement says that there was no admissible evidence for prosecution in this country. What exactly does that mean? The allegations were not bare allegations. They could not have succeeded, as they did succeed before the metropolitan magistrate,
unless there was a statement of facts that demonstrated that an extradition crime had been committed. Those facts could readily have been turned into admissible evidence for the courts of this country with not a great deal of investigation by the Metropolitan Police. Was it the fact that the allegations were simply hearsay--simply second-hand evidence--or were there not, as I am sure there must have been, witnesses to these facts who were identified and who could have given first-hand evidence in the courts if an investigation had been carried out to turn their evidence into a form which is acceptable in every court in this country? Could that evidence have been obtained easily? Did the Crown Prosecution Service ever ask the police to investigate along those lines?My third point relates to the medical issues. If this case demonstrates anything, it demonstrates that there should be transparency on medical issues. Senator Pinochet is certainly not unfit to travel, having regard to the way in which he left this jurisdiction within a matter of minutes of the decision being announced. If there was an approach by his advisers in October last year, as the noble Lord, Lord Bassam of Brighton, said, why was an undertaking ever given by the Home Secretary that the results of that medical examination, which the senator requested, would not be published? That would not happen in the ordinary courts of this country because, where there is an issue of fitness to plead that is in any way controversial, it is not decided by a Minister; it is decided by a jury which is sworn to try the particular issue as to whether a person is fit to plead. The medical evidence can be examined, looked at and published for all to understand it. It is only in circumstances where there is clearly a medical problem--I recall only one such case where a person was about to die--that the Attorney-General can issue a nolle prosequi, which puts an end to the proceedings. Surely the lesson of this is transparency on medical issues.
4.52 p.m.
Lord Williams of Mostyn: My Lords, perhaps I may explain some of the apparent confusions which have arisen. There are a number of distinct areas which need to be considered separately. The first is the matter with which Mr Straw, as Home Secretary, had to deal; and that is in the context of the Extradition Act 1989, which was brought in by the previous government. As the noble Lord, Lord Cope, rightly observed, what is required for the purposes of court proceedings in this country is relatively limited; that is to say, there has to be the assertion of the fact that a relevant offence has been committed together with an adherence to the appropriate formal procedures. That having been done, the magistrate himself has very little discretion, if any, in the context of the Extradition Act 1989.
There has been a good deal of misapprehension, partly arising out of the long, drawn-out proceedings which were carried out on an entirely different basis altogether; namely, the issues ultimately decided by the Appellate Committee of your Lordships' House as to whether or not state immunity or any similar legal
concept could apply to Senator Pinochet in the circumstances of the present case. It is well known to your Lordships that the Appellate Committee on the second occasion came to the conclusion that Senator Pinochet indeed had no continuing immunity in certain circumstances. That is one set of legal circumstances with which the Home Secretary has to deal. That has nothing at all to do with whether there is admissible evidence under the rules of evidence and the rules of justice in this country as to whether Senator Pinochet might be tried here.The important matter is this. By virtue of Article 7(1) of the convention, if the requested state--the United Kingdom in this instance--does not extradite, there is an automatic obligation on the national authorities to consider the prosecution internally within this jurisdiction. So it is not a question of "Does the CPS want to pay any attention?" or "Do the Metropolitan Police want to inquire?" There is an obligation on the United Kingdom, by virtue of Article 7(1) of the convention, to consider these matters. That is exactly the point of the letter that was sent from my office to Senator Pinochet's solicitors on 1st September last year, pointing out that I would disqualify myself from any consideration relating to this matter because I had previously been patron of Redress, an organisation which tries to help people who have been tortured by state engines of oppression. I decided to disqualify myself. But in that letter we pointed out to Senator Pinochet's solicitors--I think rightly and I hope your Lordships will think fairly--that if there were to be a non-extradition, the Article 7(1) obligations would still apply. My office took the view--I have no doubt rightly--that it would not be fair to anyone for there to be a decision against extradition and then for the Article 7 position, perhaps if his lawyers had not considered it--I did not know whether they had or they had not--to be sprung upon them.
No admissible evidence in the context of our country's jurisdiction is required for the extradition proceedings. Your Lordships may have views as to whether that is right or wrong. I repeat: the provision was brought in by the previous government. As the Home Secretary said in the Statement read out by my noble friend Lord Bassam, it is 10 years ago now and it needs to be looked at for all kinds of reasons. The Home Secretary is setting up that review.
As I said when repeating the Statement made by my honourable and learned friend the Solicitor-General, the Metropolitan Police Service makes its own decision about whether to investigate. It does not go on the basis of any instruction from the CPS. The facts were these. Of the material available, from whatever source, there was nothing that was available and admissible in this jurisdiction which could lead to the sensible prospect of a successful prosecution. The code for Crown prosecutors has a two-fold test. First, is there a realistic prospect of conviction? Secondly, are there public interest considerations which militate against a prosecution? There was no admissible evidence which could have formed the basis of a realistic prospect of conviction in this jurisdiction.
The public interest matter did not therefore arise. But since the CPS knew the conclusion of the medical team, which was referred to in some detail by noble friend Lord Bassam, it rightly came to the view that no court in England and Wales would allow a trial to continue.There are a number of circumstances in which a prosecution can be halted. I have the right to enter a nolle if I want to. A jury can be empanelled, as the noble Lord, Lord Thomas of Gresford, said. Frequently these days, as your Lordships will know, applications are made to judges to stop cases on the basis of abuse of process because of the nature of the defendant's ill health. So it is not simply a jury decision. The judge can decide; I can decide; or a jury can decide.
Questions were raised about the CPS and whether or not a lawyer has a duty not to follow instructions which, to the lawyer in his professional, ethical capacity, appear inappropriate. That is not the situation. The CPS acted, as the CPS always does and has done for a number of years, as the agent for a foreign government; in this case, the Kingdom of Spain. The lawyers who dealt with the other issues were completely separate and distinct. They were not acting for any client; they were discharging their public duty as part of a statutory body set up within this jurisdiction.
I was asked whether a full account could be given. An extremely full Written Answer--I appreciate that your Lordships may not have had the opportunity to see it--has been lodged. It bears some study. A good deal of the chronology is well known. All I can say is this. We must all ask ourselves, if we have anything to do with the administration of justice: did we discharge our duties properly? I have no doubt at all that my colleague the Solicitor-General and the Director of Public Prosecutions in charge of the Crown Prosecution Service behaved immaculately and discharged their legal duties without fear or favour.
The noble Lord, Lord Cope, asked about costs. I am not in a position to give the final figure. Not all the bills have been received. The best information I had earlier was that £600,000 had been run up. I do not pretend for a moment that that is a definitive figure. If one wants a goal as valuable as the rule of law applied internationally, it is sometimes necessary to pay.
5 p.m.
Lord Waddington: My Lords, does the noble and learned Lord agree that, after this unfortunate history--which, to put it at its lowest, has not exactly improved relations between this country and Chile--it is important to see whether we can learn some practical lessons? If, in the future, it comes to the knowledge of the Government, through diplomatic channels, for instance, or as a result of a request for VIP treatment, that a politician from a country where human rights abuses are known to have occurred, such as China or Russia, is about to enter this country, will the Government first inquire of the CPS and others whether an arrest warrant is a serious risk? If there is
such a risk, will they advise the person not to come? Or will the Government welcome the person into the country and then have him arrested? It is an important question.
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