Police Reform and Social Responsibility Bill

Debate between Lord Palmer of Childs Hill and Baroness Scotland of Asthal

Thursday 14th July 2011 Lords Chamber

[Baroness Scotland of Asthal]

My Lords, I say for the sake of completeness that I concur with the submissions just made by the noble Lord, Lord Pannick, and particularly endorse his sentiments about the importance that where offences of this nature are identified, they should be prosecuted with vigour and rigour and that those who have committed such heinous offences should most certainly be brought to book.

I was somewhat perplexed by the amendment moved by the noble Lord, Lord Macdonald, and supported by the noble Lord and the noble Baroness for this reason. I agree with the legal analysis of the flaws identified so cogently by the noble Lord, Lord Pannick. I was surprised to find those flaws in an amendment drafted by lawyers of the eminence of the noble Lord, Lord Macdonald and the noble Lord. The errant drafting of the amendment has given us a cogent reason why the matter should be left to the current Attorney-General and Director of Public Prosecutions.

For completeness, I have confidence in the current Director of Public Prosecutions, Keir Starmer QC, to discharge his duty with commendable precision. I have equal confidence in the current Attorney-General and Solicitor-General that they, like their predecessors before me, will discharge their duty with distinction and propriety. I have every confidence that each of them, irrespective of political complexion, can be safely entrusted to discharge the heavy burden of exercising their discretion in those cases and that no further amendments should be made to inhibit them from doing that which must be right in cases of this severity. I am glad that the consensus now appears to be that the gap which was so carefully identified by the Director of Public Prosecutions in his evidence should be closed.

[Lord Palmer of Childs Hill]

My Lords, I rise rather hesitantly, because I feel intimidated in talking in this debate, which seems to be populated by QCs. I am neither a QC nor a lawyer. I rise to give a more layman's viewpoint on behalf of those, like me, who are not adept in the intricacies of the law.

No one on any side of this debate is trying to stop universal jurisdiction for the prosecution of suspected war criminals. That must be stated clearly. However, as the noble Lord, Lord Pannick, said, the amendment is unnecessary and, I would say, even unhelpful. As many noble Lords will know, the usual course at the moment is that the police investigate and pass a file to the Crown Prosecution Service if they believe that such an offence has occurred, if there is a realistic chance of conviction and, as noble Lords have said, if it is in the public interest.

I read Hansard carefully after the previous debate—that is why I was inhibited by the cabal of QCs who were speaking—and I particularly noted the comments of the noble and learned Lord, Lord Goldsmith, whom I know cannot be here today but who has intimated that he is against the amendment left on the Marshalled List. He said in Committee that,

“there are two elements in the code for Crown prosecutors. One is the test as to the adequacy of the evidence and the second is the public interest. Both have to be satisfied before a prosecution takes place”.—[Official Report, 16/6/11; cols. 1008-9.]

For non-lawyers, it is perhaps useful to say so.

Comment has been made about the current Director of Public Prosecutions, who is universally admired. Those who have inquired of Mr Starmer have been given reassurance that, if extra resources are needed to pursue prosecutions, they will be there. If people who are at the moment going to the magistrates’ court to seek a private prosecution, in advance of the alleged criminal coming to this country, were to give that evidence to the Crown Prosecution Service, the CPS would investigate the case before that person then comes to this country. That seems to me pretty good.

I particularly disagree with the amendment—and the noble Lord, Lord Pannick, touched on this—because the DPP does not need to be told, as it says in the amendment, that he “shall give consent”. I hope noble Lords have confidence, as I have, in the Directors of Public Prosecutions, both past and present, so to do. I am slightly dismayed that the noble Lord, Lord Macdonald, was unable to be with us in Committee and, for obvious reasons, cannot be here today. He was also a Director of Public Prosecutions and it is very important to know what he would say.

It is worth mentioning the difference with a private prosecution, via an arrest warrant in a magistrates’ court, where a much lower prima facie case needs to be made. The magistrate is shown the alleged evidence but that court does not have the facilities to investigate that case in more than a superficial manner. The arrest warrant could then be issued if the paperwork looks good—it is only paperwork. The alleged criminal is not informed. No basic defence can be submitted and, if that person comes to this country, under that arrest warrant he could be put in jail for a couple of nights while the DPP decides whether to prosecute. Many people believe that in the many cases that come forward, for one reason or another, they would not have involved a prosecution. The tests used by the magistrate amount to,

“little more than asking whether the papers disclose an arguable case”—

I take that comment from legal advice given in an article that has just recently been written.

This has not been mentioned by other speakers but I would go on to the practicalities. Can it be right that people who have served in their countries—whichever country—as, say, a Defence Minister, Foreign Minister or a member of the armed forces and who are no longer such, and who come to this country, should be liable for arrest at the magistrates’ court rather than be under the consideration of the DPP?