Terrorism Prevention and Investigation Measures Bill

Baroness D'Souza Excerpts

Wednesday 19th October 2011 Lords Chamber

Clause 3 : Conditions A to E

[The Lord Speaker (Baroness D'Souza)]

My Lords, I should advise the Committee that if Amendment 16 is agreed to, I cannot call Amendment 17 by reason of pre-emption.

Amendment 16 not moved.

Police Reform and Social Responsibility Bill

Baroness D'Souza Excerpts

Thursday 16th June 2011 Lords Chamber

[Lord Campbell-Savours]

My Lords, before I deal with my amendment in detail, I want to say a few words by way of preamble. I am not a lawyer and I cannot claim any knowledge of the background to the administration of justice in the courts, but I am a member of the All-Party Parliamentary Human Rights Group and I have closely followed the debate on this matter in the other place.

A lawyer put it to me in this way the other day: “Clause 154 presents us with a paradox. The Department of Justice is responsible for the administration of justice, yet in certain cases it does not have confidence in the judges it appoints to sensibly administer the justice system, so it effectively nationalises the responsibility”. What many of those concerned about Clause 154 keep asking themselves is: what is driving this agenda on? Some people believe that in part it is fear among some supporters of the state of Israel that prominent Israeli citizens who stand accused of breaches of international law might be detained when visiting the United Kingdom. The problem is that there is an element of truth in all this in that, out of the 10 applications made over the past 10 years, the only two that I understand were successful were against Israeli citizens: one the former Israeli Foreign Minister, Tzipi Livni; the other, Major-General Almog. I have to confess that this targeting of Israeli citizens is a very powerful argument for giving the DPP greater responsibility than the Government proposed. But is it so powerful an argument as to totally undermine the well-trodden path of the legitimate right of the citizen to step in where the state may fear to tread for all sorts of diplomatic, interstate, political or commercial considerations?

The problem is that people have difficulty distinguishing the actions of political leaders in democratic states, such as Israel, which I strongly support, who mistakenly believe that they are defending the interests of their democratic state by engaging in actions which border on breaches of international law. Some people confuse Israeli excesses in Gaza with monstrous atrocities in Srebrenica, Rwanda, the Congo, Uganda and Cambodia and the treatment of Tamils in Sri Lanka. But in my view it is totally counterproductive to threaten the Israeli leadership with arrest. We have to maintain a dialogue with such people and force their hand if necessary through sanctions, freezes on assets and other heavy forms of action depending on the circumstances. So, although I have some sympathy with the Government’s overriding concerns, I believe that they are proceeding in the wrong way.

I shall now speak to my Amendment 245. I tabled this amendment before the publication of the report of the Joint Committee on Human Rights. Our excellent report captures very well almost all the concerns that I would raise. The Government have explained that their motivation for changing the procedure in these cases is to prevent vexatious applications being successful; that it should not be possible for someone to be able to obtain an arrest warrant as part of a stunt or to make a political point. The Government are quite right on this. However, eight of the applications were turned down by the courts and no warrant was issued. So it is not entirely clear to me that such a major change in the law is necessary. The courts seem to be doing a good job in the few cases that there are of weeding out vexatious applications and turning them down. Furthermore, those cases involve the very same experienced district judges who sit at the City of Westminster magistrates’ court—the same judges whom we entrust to hear terrorism and extradition cases. They are people with experience whom we can describe as a steady pair of hands. It is just not clear to me why the Government think that we should trust these people to be wise and judicious in terrorism and extradition cases but not in universal jurisdiction arrest warrant cases.

I am not wholly unsympathetic to the Government’s aims. Perhaps there is a need to make it completely clear that the law of England and Wales can allow arrest warrants to be issued only in genuine and serious cases. However, I am not sure that the Government have got the change quite right in their proposals in the Bill. The Joint Committee on Human Rights recommends in its report that,

“if no further justification for the existing proposal is provided, the Bill be amended to substitute the requirement for the DPP to consent with a requirement for the applicants to notify the DPP of any application for an arrest warrant”,

which I understand is the substance of one of the amendments before us. That appears to me to be the substance of the amendments of the noble Baroness, Lady D’Souza, and the noble Lord, Lord Lester of Herne Hill.

My amendment is very similar but I go a little further. I have tried to capture the enhanced role for the DPP that the Government want to bring in. Crucially, my amendment—like that of the noble Baroness, Lady D’Souza, and the noble Lord, Lord Lester—would leave the final decision to a court. That is very important. The effect of the Government’s proposal is that in practice the DPP will be the decision-maker on whether an arrest warrant is granted. Although it is reasonable for the Government to want the DPP to have a role, it is important that the court remains the final arbiter.

Under my amendment, on receiving an application for an arrest warrant in respect of the relevant offences, the court would contact the DPP and request his advice on the likelihood of a future prosecution. This would mean making available to the DPP the evidence on which the arrest warrant would be decided. The court would then be obliged to take into account the advice of the DPP. It may be argued by those who oppose the Government’s proposals that in practice this is not much different from those proposals. However, I have tried to reflect the fact that it is very important who the decision-maker is: it must be the court. The Government want a role for the DPP, so I have suggested that the court should be obliged to take into account the advice of the DPP in making its decision.

There are several closely connected issues that the Government should also clarify. They concern the test that is to be applied by the DPP. This issue, too, is addressed in the Joint Committee report, and is at the heart of the debate. The first aspect is the level of evidence that will be required. Currently, as I understand it, a court is required to establish that prima facie evidence exists—although I am told that in practice a higher standard of evidence has been applied in previous cases. Alternatively, there might be a threshold test to establish if the evidence is such that it is reasonable to suppose that, in a reasonable time, there will be a reasonable prospect of conviction; or the full code prosecutorial test to establish if there is sufficient evidence for a reasonable prospect of conviction. As a non-lawyer, I believe that it should be something more like the threshold test, which the public would understand and which would allow at least for an interview prior to action. It would be helpful if the Government would clarify what tests they expect the DPP to apply. The other element of the test is a consideration of the public interest. Having applied the evidential elements, the DPP would go on to consider the public interest element. This area would benefit from clarification from the Government, for it is here that suspicion surrounding the change is centred.

In conclusion, I would like us to note that the Government are proposing an entirely new role for the DPP. As I understand it, they are not extending to further offences a role that already exists in relation to some offences; the role is entirely new. Arrest warrants are not normally the domain of the Director of Public Prosecutions. In framing the new procedure, it is important to get it right. The Government have not quite got the balance right in their proposals, and I hope that my amendment will be the subject of serious consideration. I beg to move.

[Baroness D'Souza]

My Lords, because of the lateness of the hour, I will not rehearse the arguments put forward so eloquently by the noble Lord, Lord Campbell-Savours, with which I broadly agree; our aims are very similar. However, I will emphasise one or two points. My interest is in a fair application of universal jurisdiction. Whatever the driving causes of this are, this country has a duty to apply universal jurisdiction, as other European countries do. In defending the proposition that the current system is neither mischievous nor vexatious, I will add that in the past 10 years, only two cases have resulted in successful prosecution—one in 1999 and one in 2005. The 2005 case concerned an Afghan man who was convicted of torture and hostage taking. I think this argues for a pretty restrained system. Indeed, it is very far from being a vexatious system at the moment.

Police Reform and Social Responsibility Bill

Baroness D'Souza Excerpts

Wednesday 27th April 2011 Lords Chamber

[Baroness D'Souza]

My Lords, it is very good to be able to contribute to a debate that has included three such distinguished maiden speeches. I extend congratulations to the authors of those speeches.

I should like to focus on Clause 154 in Part 4, but with a viewpoint somewhat different from those expressed by the two noble Lords who addressed that clause.

My concern about Clause 154 is that it adds a second layer of legal process to an already stringent procedure to arrest and prosecute those suspected of war crimes. The clause requires any potential case for arrest to be referred not only to the magistrates, as is the case at the moment, but to the DPP before any magistrate can issue a warrant.

For those who are perhaps unfamiliar with the background, very briefly, it is this. The UK Government, under their universal jurisdiction obligations, can and should facilitate the arrest and questioning of any person suspected of grave offences, such as hijacking, hostage taking, torture and/or grave war crimes. The principle of universal jurisdiction extends even to those non-UK nationals suspected of grave offences committed outside the UK. Any prosecution however is dependent on the consent of the DPP, thus the two events, arrest and prosecution, are distinct. Clause 154 now conflates these two procedures by requiring all the evidence previously dealt with by magistrates to come before the DPP before any decision on arrest can take place.

Clearly, there are limitations to these procedures, in particular that of diplomatic immunity. By long-standing agreement those in senior government positions are protected from criminal investigation and/or prosecution. There is also a degree of immunity for former government Ministers.

In addition to this convention of immunity, there are many other obstacles to the successful prosecution of war criminals, which include the reluctance of the police to act upon information more often provided by human rights groups, the slowness of reaction allowing suspects to avoid arrest, and the lack of what is perceived to be incontrovertible evidence of crimes against humanity. The new clause presupposes that the DPP might require an even higher standard of proof, creating an almost impossible task for NGOs.

In the past 10 years, there have been 10 applications for the arrest of suspected perpetrators of serious crimes and only two of those have resulted in the issuing of actual warrants. The human rights organisation Redress, of which I was a director many years ago, makes it clear in its report that senior district judges take great care in determining whether the high threshold of evidence, liability and jurisdiction has been met and that no immunity applies.

The evidence therefore suggests that the current system enables the judiciary to filter out any potential abuse—a threat the Government cite as one of the reasons for introducing the involvement of the DPP at the initial stages of any potential prosecution that we are today discussing. One cannot view this system as it exists today as anything but a responsible one. So the question arises: why it is necessary to add another level of permission? The arguments put forward by the Government focus on the fact that any threat of arrest prevents those with whom the Government wish to engage risking travel to the UK.

One understands that any Government, including that of the UK, wish to avoid embarrassment, and certainly to avoid at all costs the arrest of former government Ministers in the absence of sound evidence. But as I hope I have shown, the current system is pretty tough and has not resulted in a flood of arrests or prosecutions; in fact, quite the contrary. The clause about which I have concerns in effect introduces a policy that will provide a discretionary extension of current immunities to categories of persons outside the established rules, and in doing so it undermines, to say the least, the principle of universal jurisdiction to which the UK Government are committed and, as a consequence, contributes to a politicisation of the judicial process. The result is that the UK could well come to be seen as a country friendly—even more friendly, perhaps—to those suspected of war crimes.

Instead, one would wish that the Government would bring in measures to enhance and make more effective the current system by providing more resources to the police and the CPS in order to pursue cases and by developing clear and coherent policies to make the UK a no-go area for perpetrators of heinous human rights abuses.