Police Reform and Social Responsibility Bill

Lord Phillips of Sudbury Excerpts

Thursday 16th June 2011 Lords Chamber

Finally, if we are serious about universal jurisdiction, and I think we should be, we cannot allow a system that has at least a chance of successful apprehension and arrest of suspected criminals to be undermined for reasons of political expediency.

[Lord Phillips of Sudbury]

My Lords, I rise to speak to the amendment tabled in my name and that of my noble friend Lady Tonge. Like the noble Baroness, Lady D’Souza, I will abbreviate my remarks in view of the opening comments by the noble Lord, Lord Campbell-Savours, with which I wholly concur. Indeed, my amendment differs from his and from that in the name of the noble Baroness, Lady D’Souza, and my noble friends Lord Lester and Lady Tonge, in only one particular respect. The amendment moved by the noble Lord, Lord Campbell-Savours, allows—indeed, requires—a justice of the peace to get the advice of the DPP on the advisability of granting a warrant. The amendment tabled in the name of the noble Baroness, Lady D’Souza, and others would allow the court to receive advice from the DPP. I am adamant that any advice given with regard to these matters, which are intrinsically important, must be in open court. It is for the DPP to take the opportunity which is available under both those amendments, I think, to go to the court and argue the matter in open court, not by way of written private advice.

I think that the status quo is perfectly satisfactory and that meddling with citizens’ rights in the age of the overmighty state is extremely dangerous. Like the noble Lord, Lord Campbell-Savours, I drafted my amendment and put it down before I saw the evidence submitted by Justice, Liberty and the Joint Committee on Human Rights. It is worth putting on the record not only that the Joint Committee argued long, fully and with conviction that the arrangements in this Bill are wrong in principle and in practice and ended up, I am happy to say, taking exactly the line that the amendment tabled in my name takes. The same was true of Liberty. Justice simply wanted Clause 154 removed alltogether, leaving things entirely with the status quo.

At least my amendment will give further strength to the procedure if that is needed. I do not think that it is but I put it forward in a conciliatory way. As has been said, it is worth briefly repeating that we already have judicial oversight under existing law. It is already the practice to deal with these extremely difficult applications for warrant only before a district judge—who we used to call a stipendiary—who is not only a professional judge but also, because they are heard before the City of Westminster Bench, is a specialist in matters of this type. The district judges concerned deal, for example, with terrorism extradition cases. The judge, whoever he or she is, must be satisfied that there are reasonable grounds that the offence has been committed and that there is admissible evidence which, if uncontradicted, could establish the elements of the offence.

There is also of course state immunity. State immunity was exercised in the case of General Mofaz in February 2004 when he was saved from the issue of a warrant on the grounds of state immunity. Let us not forget that the Attorney-General has the right to intervene and issue a nolle prosequi, which puts an end to it. The Attorney-General will do that on grounds of public interest. As I have said, this is a misguided provision. Perhaps I may quickly read the conclusion of the Joint Committee on Human Rights, which is extremely clear in explaining the difference between the Bill and my amendment. It states that “The difference between notification” of the DPP “and consent” of the DPP,

“would be significant. On notification, even if the DPP applied the general prosecutorial test in determining whether to intervene in an application, the ultimate decision on whether to issue an arrest warrant would lie with the Magistrate on the test applied at the present. By contrast, if consent is a precursor, then the determinative decision will in practice be that of the DPP”.

Finally, it is relevant to say that, in the Gourier case, Lord Wilberforce said that the right of the private citizen to apply for a warrant and to take a prosecution is,

“a valuable corrective against the inertia or partiality on the part of authority”.

On another occasion, Lord Diplock made comparable remarks. For those reasons, it would be a retrograde step to approve the Bill as it stands.

[Lord Thomas of Gresford]

I shall speak to the amendment in the names of my noble friend Lord Macdonald of River Glaven, who cannot be here this evening, and myself. From the position of practitioners with hands-on experience of the criminal courts throughout our legal careers, we believe that the existing system works perfectly adequately. I concur with the views that have already been expressed in that way. Few applications are made and, of those that are, most are rejected by the magistrate who is the highly experienced person. Why then is there a need to move away from the current position? We are told that it is because there are people who feel that if they come to this country they may be subject to a private prosecution and to arrest.

Those who feel that way in foreign countries simply do not understand the practice and procedure of our courts. It is strange to amend our law not because of a real problem but because there are people abroad who believe that a problem exists when it does not. We are moving from the position that if the Government want to introduce the question of the consent of the Director of Public Prosecutions, it should be made equally clear at the same time that the tests to be applied are those which would be applied in an ordinary criminal case in this country. No special tests will be needed for those from abroad and who face allegations of offences of universal jurisdiction.

We feel that the tests that are to be applied are those of the existing discretions of the Director of Public Prosecutions. I have been approached today by my noble friend Lord Carlile in his usual genial and understated way to point out that the tests applied by the DPP are in fact subject to change. The guidance has changed in some ways. My noble friend tells me that we are now on the seventh version of guidance issued to public prosecutors. If that is the case, it is perfectly simple to redraft on Report the amendment that we have put forward so that we put in a broader way that the same tests which apply to citizens of this country will also apply in the case of people who come to this country.

But there is a difference with private prosecutions. Let me say that no practising criminal lawyer has any time for private prosecutions. They generally fail, and generally they cause great harm and trouble to people. We feel that prosecution should be in the hands of people charged with those duties; namely, the Director of Public Prosecutions and the Crown Prosecution Service, which acts under the director. The distinction is that the arrest warrant in a private prosecution leads to trial. When the police arrest someone, there is an arrest, and then there is a consideration of evidence that is obtained between arrest and charge. The charge is brought on the advice of the CPS only where there is sufficient evidence for the case to go forward. At that intermediate stage, the charge does not exist in private prosecutions, and therefore the issuing of an arrest warrant leads, as I have said, straight to trial. We believe that safeguards are needed.

We start from the basis that there is no need to amend the existing position.

--- Later in debate ---

[Lord Pannick]

I certainly agree that the DPP should apply the same standards in the sense that he asks whether there is a realistic prospect of conviction and whether the public interest justifies a prosecution. The application of those principles, though, will inevitably depend on all the facts and circumstances of the individual case. It would be unprecedented for Parliament to tell the DPP in detail how to apply his discretion, and there is nothing in what the DPP said to the Public Bill Committee that should cause concern to noble Lords about the manner in which he proposes to exercise this new power if he is given it.

[Lord Phillips of Sudbury]

I think it is fair that I ask the noble Lord this. He has said several times now that the consent of the Attorney-General to one of these prosecutions is required. My understanding, and I want to get this quite clear, is that the Attorney-General can issue a nolle prosequi that his consent is not required.

[Lord Pannick]

It amounts to the same thing. If the Attorney-General takes the view that it is inappropriate for a prosecution to continue, they will say so. The purpose of the provision of English law is to ensure that the Attorney-General is able, in this sensitive and important context, to take a view on whether it is appropriate.

[Lord Phillips of Sudbury]

My Lords, to pursue the point, there is a vast difference, with respect, between getting the consent of the Attorney-General as a prerequisite and the right of the Attorney-General to intervene by way of nolle prosequi. The noble Lord is mistaken in what he draws from that.

[Lord Pannick]

My understanding is that consent is required. In any event, with great respect, I do not see the practical difference. Other noble Lords will assist the Committee in that respect.

--- Later in debate ---

When he gave his evidence, the DPP also raised the issue of the gap. I should like to endorse quickly what my noble and learned friend Lord Goldsmith said about the process that we currently have. Noble Lords will know that the prima facie case that has to be produced is not one where the court currently interrogates the evidence. The difference between what the DPP will do and what the court can now do is that the DPP is able to interrogate that evidence and the gap. Therefore, the time between when the warrant is issued and when the consent has to be obtained is likely to be very short. That gap causes some real difficulties, as my noble and learned friend has indicated. The Government have got that right. I invite noble Lords who disagree to consider carefully what has been said in this debate and the evidence given by the current DPP, which bears reading in a very favourable way.

[Lord Phillips of Sudbury]

The noble and learned Lord, Lord Goldsmith, made no reference to the advice given by the Joint Committee on Human Rights, and the noble and learned Baroness has made no such reference. Does that mean that she sets its advice at nought?

[Baroness Scotland of Asthal]

No, my Lords, certainly not. I was seeking to relieve the Committee of the burden of listening to me for more than was absolutely necessary, bearing in mind that we are now at 9.19 pm and the Government have yet to respond. Of course, it is for the Government to deal with these matters. I simply wanted to make plain that we on this side would support the analysis made by the noble Lords, Lord Carlile and Lord Pannick, and my noble and learned friend Lord Goldsmith. I thought that that would be the fastest way. I am sure that we can return to this on Report. If the Committee would love to hear from me on that basis, I am sure that I could entertain your Lordships for some considerable time. But, at this time of night, something told me that the Committee would not thank me. For that reason, I have curtailed my remarks. I am sure that the noble Lord, Lord McNally, need have no such restraint.