Campaign groups lost no time in condemning government plans intended to protect foreign visitors from being arrested on charges that will never come to court. Their concerns are fundamentally misguided.
Clause 151 of the Police Reform and Social Responsibility Bill would prevent a private prosecutor from obtaining an arrest warrant without the consent of the Director of Public Prosecutions in respect of certain serious offences committed outside the United Kingdom.
The offences include war crimes and other grave breaches of the Geneva conventions.
Explanatory notes issued by the government say the clause "gives effect to a commitment of the Justice Secretary announced in a written ministerial statement on 22 July 2010 that the government intended to bring forward a legislative amendment to require the consent of the Director of Public Prosecutions (DPP) before an arrest warrant can be issued on the application of a private prosecutor in respect of offences over which the United Kingdom has asserted universal jurisdiction".
Offences of universal jurisdiction may be tried in England and Wales even though the alleged crime took place outside the United Kingdom and regardless of the nationality or residence of the offender.
I explained what I understood to be the effect of the government's proposals in July.
We are none the wiser about the circumstances in which the DPP would permit a private prosecutor to obtain an arrest warrant. It looks to me as if the government is leaving it to DPP to decide how to exercise his discretion.
But I speculated in July that consent would be refused only if the DPP believed that the defendant would not stand trial - either because sufficient evidence would never become available or because the attorney general would not grant the consent required for a prosecution based on universal jurisdiction.
Some readers took issue with me but I stand by what I wrote.
The respected human rights group Justice said today that:
- There is no indication that arrest warrants for war crimes have been issued improperly or on the basis of insufficient evidence. The government's proposals overlook the fact that arrest warrants for such crimes are issued exclusively by experienced specialist magistrates sitting in the City of Westminster Magistrates' Court.
- Arrests and prosecutions are currently dealt with by the counter-terrorism divisions of the Metropolitan Police and CPS, both of which are facing severe budgetary cuts and both of which have much higher priorities than arresting suspected war criminals entering the UK at short notice.
- Without the right of private prosecutors to seek arrest warrants, it is therefore highly likely that no action will be taken against suspected war criminals entering the UK at short notice for short periods of time.
These objections completely miss the point. Less evidence is needed for an arrest than a prosecution. Arrest warrants have therefore been properly issued without the evidence that would be needed for a conviction.
Of course, evidence may be obtained after an arrest. If the DPP thought that such evidence might be forthcoming in a case based on universal jurisdiction, he would no doubt authorise an arrest - unless he thought that the Attorney General would never permit the case to come to trial.
To say that the CPS and police are too busy to take action against those accused of the most serious crimes in the criminal calendar unless those people choose to spend a substantial period of time in Britain is a pretty feeble argument. There can be few greater priorities than bringing defendants to justice for crimes of universal jurisdiction, whether those defendants visit Britain for a day, a week or a month.
The comments today by Amnesty International are even more absurd. Kate Allen, director of Amnesty International UK, said:
The current process allows victims of crimes under international law to act quickly against suspected perpetrators who could otherwise enter and leave the UK before police and prosecutors can act.
As things stand, magistrates must carefully screen each request for a warrant, refusing those which fail to meet strict standards of evidence. There appear to have been no instances - and the UK government has provided none - of magistrates issuing arrest warrants based on "flimsy evidence" or of the system being abused.
This is a dangerous and unnecessary change. 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.
Allen does not seem to have understood that private prosecutors will still be able to obtain arrest warrants, just as they can at present. The only change is that the prior consent of the DPP will be needed.
The Crown Prosecution Service, which the DPP heads, is well used to acting quickly when required. There is no reason to suppose that the DPP would not give his consent to an arrest - in an appropriate case - before a defendant leaves the jurisdiction. Moreover, he would be in a much better position than a private prosecutor to ensure that officials at ports and airports prevent suspects from leaving the country.
It is hard to escape the conclusion that Justice and Amnesty are seeking the arrest of defendants who are never going to be prosecuted. That strikes me as an abuse of the system.
Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.
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