Police Reform and Social Responsibility Bill

Debate between Baroness Tonge and Lord Goldsmith

Thursday 16th June 2011 Lords Chamber

[Lord Goldsmith]

My Lords, this is a delicate and sensitive matter and I will spend a few moments on it. I entirely understand why noble Lords who have spoken have raised the points that they have. There are some footnotes as well, but two major things emerge from the debate so far. First, it is interesting that, despite the fact that certain noble Lords have said, “Let’s leave the system exactly as it is, there’s nothing wrong with it”, everybody who has spoken so far has proposed a change to the present system, either by supporting the Government or by tabling amendments as the noble Lord, Lord Campbell-Savours, has done—

[Baroness Tonge]

Can the noble and learned Lord please clarify that? The amendments are to Clause 154, which I thought was a new provision to change the existing arrangements for the application for arrest warrants.

[Lord Goldsmith]

I am grateful to the noble Baroness. I will make my second point, about what the existing system is. With respect, there is a misunderstanding among some of the Committee as to what the existing system is. In a moment, I will take the opportunity to say something about that on the basis of my experience, particularly from when I was Her Majesty’s Attorney-General.

First, in fundamental agreement with my noble friend Lord Campbell-Savours, the principle of universal jurisdiction is extremely important. I strongly support that principle. I was a Back-Bencher on the Labour Benches led by the noble and learned Lord, Lord Archer of Sandwell, who pushed the Government into passing an effective form of the International Criminal Court Act 2001, which meant that we could prosecute people who were not permanently established here. I was the Attorney-General who consented to the prosecution of Zardad the Afghan warlord; I actually led for the prosecution in that case. As the noble Baroness, Lady D’Souza, said, he was convicted, by a British jury, of hostage taking and torture. He was sentenced to 20 years, which he is still serving.

Just so that noble Lords do not think that my favouring of universal jurisdiction is limited to particular countries, I mention Israel. I publically indicated that I was going to call for the extradition of an Israeli solider when I was concerned that the Israeli authorities were not properly investigating and dealing with an allegation that a British citizen, James Miller, had been killed in Gaza by Israeli fire. I did not do that because I was being pushed by some group. I went and talked to the Israeli investigators, looked at their files, cross-examined them, and called for the Metropolitan Police to carry out its own investigations into evidence which the Israelis said demonstrated that it was not Israeli gunfire, but which demonstrated that it almost certainly was.

In the end the Israelis did not go quite as far as I would have liked, but they did more than they had done as they were threatened with a prosecution. Indeed, they thankfully paid significant compensation to the family of this poor young man. Therefore, I am very much in favour of universal jurisdiction. It is important that we have a robust and effective system. However—this is the second point—there is an anomaly in the existing system, which the noble Lord, Lord Pannick, has rightly identified; namely, that the prosecution cannot take place without the consent of the Attorney-General. This is the debate that the noble Lord, Lord Phillips of Sudbury, and the noble Lord, Lord Pannick, had.

I know that memories fade and that it is a number of years since I did this job, but my recollection is that every single one of the universal jurisdiction offences requires the consent of the Attorney-General to a prosecution. Of course, the Attorney-General can always issue a nolle prosequi, but that is different. In these cases, Parliament has taken the view that a prosecution of this sort has such a public element to it that it should not proceed without the consent of the Attorney-General. As the noble Lord, Lord Pannick, pointed out, the consequence of that is that we have this anomaly. A private group or a private individual, no doubt for good reasons but sometimes perhaps not—I will come back to that—can have an individual arrested even though, when the matter goes to the Attorney-General, the prosecution will not take place.

I first came across the practical problem to which this matter gives rise in the case of Major General Almog, which has been referred to. The first that I knew of an application to arrest Major General Almog was when we received a call from the relevant court to ask me whether I wanted to say anything about it. I could not say anything about it as I had no role at that stage; my role would come later. I could not do anything. I make this point also because one of the briefings that I have seen on this issue suggests that there is no evidence that in that case there was no prior notice given to the Attorney-General of the intended application. I know that there was not in that case because it took place on my watch. From that moment I have considered how you deal with the anomaly that you can have somebody arrested but ultimately there will be no prosecution. That gives rise to a number of problems. First, it gives rise obviously to the problem that someone may be detained, deprived of their liberty and certainly restricted in their movements for a period before the papers reach the Attorney-General and a decision can be made. That is not good for the individual. Secondly, it is not good for the people who have, as it were, promoted the prosecution in the first place. They will be disappointed that, having got somebody arrested, the matter does not proceed.

There is a question of the public funds involved—perhaps it is for your Lordships to decide how important this is—but there is also the consideration that such action will in certain circumstances exacerbate relations with what may be a friendly state if, for good reason—I will come back to what that may be—an Attorney-General says no to a prosecution but somebody has been locked up for a period of time, or at least prevented from going about their business. That will do nothing for good relations and there may be circumstances—the noble Lord, Lord Pannick, referred to such a circumstance, hypothetically, at least—where that could be very damaging to a wider interest.

For a long time I believed that it was necessary to deal with the anomaly. One comes back to the difference between noble Lords’ amendments and the Government’s amendment. Fundamentally, the difference comes down to this: other noble Lords’ amendments say that you should notify the DPP and he should have an advisory role. The Government say that this process cannot happen without his consent. What is the difference between those stances? It is not the difference of timing because if you are going to notify the DPP and ask him to give an advisory view, you need to give the man or woman time to consider it. I agree with what the noble Lord, Lord Pannick, said about the ability of the CPS to move swiftly. I have also heard it said that one of the problems is that there may not be enough time. In the cases that I have seen, the groups that have wanted a prosecution have known for some time that they would like to see that particular individual prosecuted. They may not have known that he or she was travelling on a particular day but they have been assembling their evidence. I see no reason at all—I understand that the DPP has offered this—why there cannot be a system under which they present their material to the DPP so that he and his staff have a reasonable opportunity to consider it and can form a view as to whether or not they will give their consent.

I see real dangers in the present system. It is an anomaly. It leads to dangers to the individual and risk to the people who promote this. It risks relations. The noble Lord, Lord Pannick, said that he knows of cases—indeed, he has advised on cases—of people who are frightened to come to this country. I have heard this as well. The Government will know better, and if that is the case, it is a bad thing. It is a bad thing if in fact they are being deterred from coming where ultimately there have been no prosecutions.

--- Later in debate ---

[Lord Goldsmith]

I have to say that the one thought that had not crossed my mind when I read this amendment was that it was intended to give reassurance to people coming from abroad. Noble Lords can form their own views in relation to that. I oppose that amendment.

I want to consider the final amendment, which was spoken to by the noble Lord, Lord Carlile of Berriew. I give way to the noble Baroness.

[Baroness Tonge]

The noble and learned Lord is very generous and I thank him for giving way yet again. Before he moves on to my noble friend’s amendment, can he explain something to me? I am enjoying and learning a huge amount from this debate, but I am not a lawyer. Let us say that a British citizen is arrested on a Saturday night, or whenever, for some reason or other, and put into the cells for perhaps one or two nights, and that no charge is brought in the end. What is the difference between that and someone who may or may not have committed war crimes being put into a cell and held for one or two days, but no charge is brought?

[Lord Goldsmith]

My Lords, I thank the noble Baroness for what she kindly said about this debate, but I should have thought that she and I would agree on this without hesitation. So far as is possible, no one should be detained and deprived of their liberty in circumstances where ultimately they are not going to be charged with a criminal offence, or for some other good reason. I do not like the idea of saying, “Oh well, it is all right, because after a night out in the pub, people may be locked up for a night; let us lock up the Foreign Minister”, or a general from another state. If there will not be a prosecution, it makes no sense to do that.

The other fundamental difference is the second element missing from the debate. Parliament has decided that in such an offence, universal jurisdiction is enormously important and we should do our bit to ensure that tyrants, despots and war criminals do not find a place of refuge in this country. Absolutely, but it has decided that that should be done by giving the ultimate responsibility to the Attorney-General to decide whether prosecution takes place. The anomaly is that, despite that, prosecutions can be started and people can be detained, even though that will not happen.