Vera Baird DBE KC

Writer, Lecturer, Parliamentary Consultant and Co-Director of Astraea: Gender Justice

Save the citizens’ right!

The Tory-led government, under pressure from Israel, intends to end the citizen right to initiate a prosecution for war crime. Clause 151 of the Police and Social Responsibility Bill will require the DPP’s consent before a warrant for arrest can be issued, however strong the evidence. This citizen right, as many senior judges have said, is a vital safeguard against inertia or partiality by the authorities. It is all the more important with international war crimes when Government may not want to prosecute the most serious criminal if it upsets a country, like Israel, with which they have diplomatic links.
Though much of our criminal law covers only acts done in England and Wales or committed by British people, there is “universal jurisdiction” over war crimes such as grave breaches of the Geneva Conventions Act 1957 or torture. We have, in common with many other countries, the  duty of seeking out the culprits and prosecuting them here, if they can’t be extradited. In 2005, the UK successfully prosecuted an Afghan warlord, Zardad for torture offences committed in his own country. Universal jurisdiction exists to ensure that there is no hiding place anywhere in the signatory countries for perpetrators of grave crime.
In England and Wales, anyone, not just police, can apply to a magistrate for a warrant to bring a suspect to court for any crime. However, he can only apply. The magistrate will decide whether to issue a warrant and will do so if, and only if, there is “prima facie” evidence of the offence being committed by the person named. Many serious offences can’t go beyond this stage without the Attorney-General’s consent but in recognition that arrest sometimes have to be made in a hurry, a warrant for arrest can be issued before the Attorney General is asked. A war crime suspect flying into the UK at short notice, has to be arrested while he is here.
So an individual with a complaint of war crime can make an application but will only succeed in getting a warrant for arrest if he has sufficient evidence to convince a magistrate of the crime and there is too much need for haste to get the Attorney-General’s sanction first.
The Tories argue that some applications are political stunts and the embarrassment is deterring important foreign government figures from attending diplomatic talks in the UK. But this is wrong. First of all, members of all foreign Governments have diplomatic immunity from any prosecution, as long as they are in office and so can’t be subject to this process. Secondly, any groundless application would be speedily rejected by a magistrate and would probably get less publicity than the average banner demonstration. It is the fact that twice in the last five years magistrates have been sufficiently satisfied by evidence to issue warrants for the arrest of high- ranking Israelis that has generated publicity and embarrassment. But how right it is that it should be so and how wrong it is that the government should give way to pressure to scrap this citizens’ rights precisely because it is capable of working well,
 There have been about a dozen applications in the past decade.  Peter Tatchell applied for a warrant against Henry Kissinger in 2002, but failed for want of evidence. Lawyers for Palestinians were granted a warrant for Major General Doron Almog in 2005. He was the former head of Israeli forces in the Gaza Strip. Apparently having been tipped off, he didn’t get off his plane at Heathrow and flew straight home. In 2009, the Chief Metropolitan Magistrate issued a warrant to victims of Operation Cast Lead for Tzipy Livny, a key Minister at the time of the Gaza bombardment but by then in Opposition. She did not come to the UK and the warrant was withdrawn. Applications against Mugabe and Mofaz, the then Israeli Defence Minister were refused in 2004 because they had diplomatic immunity.
The successful applicants would all say that they had taken their allegations to the police for investigation but with no result. Each had material with which to approach a Magistrate and each needed to act quickly when the alleged culprit came to the UK. And so they would make the further key point for keeping the right that the police don’t take on these expensive overseas investigations and have to be galvanised by the initiative of the victims or the victims’ supporters. It is an important point that war crimes investigations are no longer allocated to a specialist police division but are in the hands of the Counter Terrorist Division of the Met Police where they are clearly not able to take priority over preventive counter terrorism.
Clearly, if only the state can make a decision on whether a warrant can be issued, foreign policy interests are likely to be uppermost.
The structure of the clause allows a private citizen to apply but prohibits the issue of a warrant without the DPP’s consent. The  Code for Crown Prosecutors requires the Crown Prosecution Service when considering any prosecution firstly to decide whether there is enough evidence for a  51% chance of success and secondly if it is in the public interest to prosecute. Joshua Rosenberg recently wondered, in a Guardian piece, if it might be against the public interest to prosecute someone, despite the evidence of war crime, if it would offend an ally. Lord Pannick may have been agreeing, in a recent Lords debate when he said that a private citizen’s application can “undermine the relationship between this country and an ally” The DPP who will have to decide whether to give consent, is totally independent but he will not be able to avoid  material of this kind being brought to him by the government and becoming a part of his consideration of the public interest.
In truth, the abolition of the right to issue a summons amounts to a rejection of the principle of universal jurisdiction and of our international obligations. If the UK only prosecutes war criminals from countries which are our enemies and never from any with whom we have diplomatic links, where is the universality? Far from ensuring that there is no hiding place, the UK will become one for selected international villains.
This right happens to have been used against Israelis sometimes in the past few years, but it is a British right for all the people in the United Kingdom against any criminal wrongdoer who the police won’t pursue. It is, as Lord Diplock said in a case in 1978:-
“a constitutional safeguard against capricious, corrupt or biased failure by those in authority to prosecute offenders against the criminal law”
The Labour government was put under similar pressure to remove it and for a while gave way, but Gerald Kauffman MP related in his speech on the Second Reading of this Bill that he persuaded the last Prime Minister to reverse his position. Its abolition would have no bearing on the Middle East peace process and Israeli pressure to the contrary must be taken with a large pinch of salt.
The proposed legislation presents problems of its own. Clause 151 will leave the right of private prosecution intact in the relatively unlikely event that the war crime is alleged to have taken place in the UK whilst requiring the DPP’s consent, not for the application by the individual but for the issue of a warrant by the magistrate, for crimes committed overseas.  Thus somebody who suffered torture in Rwanda and now has asylum in the UK will not be able to obtain a warrant, on his own, even if his torturer lives next door. (A number of Rwandan war criminals are believed to live in North London.)
Ken Clarke, in announcing these proposals, said that he had an “unwavering “commitment to universal jurisdiction but that prosecutions should be based on “solid evidence likely to lead to a successful prosecution” and not on “the basis of evidence that would be insufficient to sustain a prosecution”. The first point to make is that the evidence required for the issue of a warrant is the same whether it is for an international war crime or for any other crime. The second point is that the requirement is rightly lower than that for a prosecution. Many arrests are made on the basis of evidence sufficient to show a prima facie case but far from sufficient to get the defendant to court. People are arrested so that they can be put onto identification parades, or so that they can be interviewed, or so that DNA can be taken from them, precisely with a view to assembling evidence not available on arrest to satisfy the” full code” test for the CPS. It is probably the minority of cases which have a 51% likelihood of conviction at the time of arrest and none will have been assessed as to whether the prosecution is in the public interest.
Contrary to Ken Clarke’s implication, clause 151 does not change the standard of evidence required for a magistrate to issue a war crime warrant. It will remain the same as that for the issue of any other warrant and much lower than the test for a prosecution. So, what can the DPP do? How does he decide whether to consent or not? And who is actually issuing the warrant? The magistrate’s test will be met in most cases where a warrant is sought while the full code test will not. Is it really acceptable that the DPP should be able to tell a magistrate that notwithstanding that the standard of evidence he is required to look for is met, he may not do his duty and issue a warrant? I do not think that any DPP will feel comfortable with that.
 That is if any DPP has the time to analyse the position and to take a stance. As section 25 of the Prosecution of Offenders Act makes clear there is sometimes a need for an urgent arrest in a case which normally needs the Attorney General’s consent for prosecution. That section empowers such an arrest without that consent where there isn’t time to get papers to the Attorney. The same must follow in a clause 151 case. It will not be practical in the typical circumstance of a suspected war criminal arriving unexpectedly into the UK to get sufficient information in place to permit the DPP to make his decision and in the absence of positive consent no warrant can be issued, even if the magistrate is convinced that the evidential standard is met. This probably means that no privately initiated arrest will ever take place in such a case.
As Kate Allen of Amnesty puts it
“Unless a way of guaranteeing a means of preventing suspects fleeing can be built into the proposals, then the UK will have undermined the fight for international justice and handed war criminals a free ticket to escape the law”
So is there any reason, beyond a triumph of political expediency over principle to justify the erosion of this right?  There should be no concern that applications are frivolous. On the evidence they have not been and it is the issue of a warrant that matters. However, any fear of abuse of the process could be removed if the Bill required that an application could only be made by someone who has an interest in the case, an interest akin to that required before a party can apply for a judicial review. That would ensure the exclusion of empty political stunts without eroding the true rights of somebody who has been genuinely injured or wronged by the recipient of the warrant.
As a last resort it would be possible to distinguish war crimes cases from all other private prosecutions by lifting the standard of evidence required before a warrant can be issued to something nearer to the full code test though still short of it. However the evidential standard is less the issue here than the public interest and any such increase in standard would be a sledgehammer to crack a nut granted that the requirement before a prosecution can follow the arrest are increasingly stringent anyway.
What one hopes is that the public authorities, not well-resourced to prosecute war crimes, can be motivated through the determination of a victim who has evidence sufficient to convince a magistrate of a prima facie case. All the known applicants in the last decade have tried, in their turn, going to the police and asking for the investigation of a foreign statesman, submitting some evidence in support. All have failed to galvanise action and the right of a private prosecution has, in two cases at least, helped them to validate what they say through the sanction of a warrant from a magistrate. The District Judges/Magistrates who hear such cases are highly qualified and will not be misled. How much harder it will be for the police, CPS and Attorney General to decline to sanction a prosecution thereafter if such a person has been convinced to issue process.
The public interest is all too easily defined through the prism of political expediency. We must preserve the right of ordinary people to make the point that it has other dimensions.