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.