Police Reform and Social Responsibility Bill

Lord Carlile of Berriew Excerpts

Thursday 14th July 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I beg leave to move this amendment standing in my name and that of my noble friend Lord Macdonald, who like so many of us was here until late last night but is unavoidably abroad today.

Clause 155 is of importance as it ousts a long-held and apparently unfettered right of the private citizen to seek an arrest warrant, particularly in relation to offences of universal jurisdiction. For our part, we agree with the thrust of the change that has been made. As the prosecution of offences of universal jurisdiction—for example, war crimes—has always required law officer consent before a plea is entered in the court, why not require the Director of Public Prosecutions to consent on the same test before the process may be commenced at all? The alternative is the possibility that a case may proceed in the absence of any likelihood of law officer consent being forthcoming. It is a hopeless case. In that case, the prosecution will inevitably and quickly collapse when the consent of the law officers is withheld. It will have been nonsense from the start. That is most undesirable in such cases, which may have sensitive international connotations.

It seems to me that to require the prior consent of the Director of Public Prosecutions, as the clause does, merely creates an additional safeguard at no markedly adverse cost to justice. It has to be recognised that the proposal represents an inroad into the right of the citizen, unrestricted and unfettered, to seek arrest warrants, so it is particularly important, if this is an inroad, that the tests that the Director of Public Prosecutions will apply in considering the grant or the withholding of consent are crystal clear to the public, who to an extent are losing a right of unfettered access to the court. The purpose of the amendment is to achieve that clarity by putting those tests into the Bill.

What are the tests set out in the amendment? They are the tests that are used by Crown prosecutors in considering whether to charge individuals with criminal offences. This is appropriate because in a private prosecution the issuing of a warrant is analogous to the charging process in a conventional state prosecution. It is the actual issuing of the warrant that sets the ball rolling and puts the defendant under the jurisdiction of the court.

The full code test requires the prosecutor to consider whether the evidence before him raises a realistic prospect of conviction—in other words, that a reasonable tribunal would be more likely than not to convict upon that evidence. If the answer to that question is yes, there is a reasonable prospect of conviction and the prosecution would be in the public interest, a charge must follow.

The second test that is set out in the amendment is known as the threshold test. That is to be used in circumstances in which a prosecutor has enough material to suspect an individual of an offence and a real expectation that material satisfying the full code test will become available within a reasonable period. Noble Lords who were in Committee will recall that the former Attorney-General, the noble and learned Lord, Lord Goldsmith, suggested that the public interest test should come in at that stage. In fact, that is not the case in ordinary prosecutions in this country.

The Director of Public Prosecutions, Mr Keir Starmer, has said in evidence to the Public Bill Committee that he believes these tests, which are normally used in this country for granting consent to the issue of a warrant where universal jurisdiction offences are alleged, to be the appropriate tests. There was some issue in Committee about what he had actually said on this topic in the evidence that he gave to the Public Bill Committee. I quote a paragraph from that evidence:

“Quite rightly, a number of groups and individuals have said to us, ‘We may have practically everything. We just need to change the nature of the evidence and it won’t take long. You surely wouldn’t refuse us consent on that basis?’ So we have an exception that allows us to apply the threshold test—is there enough for reasonable suspicion and do we anticipate that, within a reasonable period, the evidential gap, as it were, could be plugged? There would then be sufficient evidence for a realistic prospect of conviction. That prompts the question, what is a reasonable period? It seems to us that it is probably best measured in the period between the application for arrest and the likely time that the Attorney-General will consider consent, because that is the existing window. That is the only period that can sensibly be used for that purpose”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 125.]

In Committee, my noble friend Lord Carlile of Berriew asked whether my noble friend Lord Macdonald had consulted Mr Starmer before he put down this amendment. The answer is yes, he had. Since the proceedings in Committee, my noble friend Lord Macdonald has spoken further to Mr Starmer about the matter and has received an indication from the Director of Public Prosecutions that he may convey to the House that the position he expressed in his evidence remains his position. Those are the tests, as set out in the amendment, that he would apply in considering consent to any application for a warrant in a case of universal jurisdiction.

[Lord Carlile of Berriew]

Will my noble friend be kind enough to confirm that the Director of Public Prosecutions has not indicated his assent to this amendment?

[Lord Thomas of Gresford]

If my learned noble friend will control himself for a moment, I shall come to that question in due course. Mr Starmer has indicated that he would wish to apply a public interest filter to both the tests that are set out in the amendment. Unlike an ordinary prosecution, Mr Starmer would wish to consider the public interest question on the threshold test as well as the full code test. His view is, of course, accepted.

[Lord Carlile of Berriew]

I am sorry but that is not good enough. Will my noble friend now answer my question? He has left hanging in the air the possibility that the Director of Public Prosecutions has indicated his agreement to this amendment. Is that true or untrue? I believe that it is untrue. The implication should not be left hanging in the air. Perhaps my noble friend will bear in mind that I am exercising more self-control than his last few sentences possibly justify.

[Lord Thomas of Gresford]

I must admit, my noble friend has always been known for his self-control. We have known each other for 30 or 40 years. The simple answer to his question is that, as I explained a moment ago, the Director of Public Prosecutions wishes to include in the guidance that he proposes to give the public interest test, at the first part, in considering the threshold test. He has said that binding guidance to that effect—

--- Later in debate ---

[Baroness Tonge]

I apologise to the House, and I agree with the noble and learned Baroness. In fact, I did not make an assertion; I said that there were incidents in the past where, allegedly, that had occurred.

When we look at this issue, we begin to think—certainly, the people who lobby me in great numbers think—that the real reason for the change in the law was the incident relating to Tzipi Livni. The Foreign Secretary, for whom I have high regard, argued that in the case of Tzipi Livni, the law had been abused when an arrest warrant was issued against her. He stated that:

“She is an Israeli politician of great importance, and a strong advocate of the peace process”.—[Official Report, Commons, 24/3/11; col. 1130.]

That may be, but he did not criticise the evidence against her contained in the arrest warrant which had been obtained by a private citizen.

[Lord Carlile of Berriew]

I am grateful to my noble friend for allowing me to interrupt, and I am extremely surprised that we have not heard my noble friend on the Front Bench intervening in the way in which he intervened on my noble friend Lord Palmer of Childs Hill a few minutes ago. What my noble friend is saying is out of order, inappropriate and not related to the amendment. She is having a rant at Mrs Livni.

[Lord Wallace of Saltaire]

I was considering rising on precisely that point. This is Report, and we are intended to stick very closely to the amendment. This speech is ranging very widely, much more widely than is normal on Report.

--- Later in debate ---

[Lord Carlile of Berriew]

Order! Order!

[Baroness Tonge]

I am not going to give way again. I must finish. We must contrast this action with what has happened in the past couple of weeks where Raed Salah, a Palestinian—

Motion agreed.

[Lord Carlile of Berriew]

My Lords, I have only a few words to add. I am sorry that my noble friend Lady Tonge has chosen to disobey the normal rules of the House and has stormed out in a way which is not appropriate to noble Lords and noble Baronesses in this House. It is something that I, as a member of her party, feel very strongly about, and I hope that none of my noble friends would normally behave in that way. It is quite shocking.

I would say, and I was about to say in her presence, that she has completely misunderstood the role of the Attorney-General and the Director of Public Prosecutions. I was involved in some negotiations during the previous Government as a person who was keen to extend the cover of the universal jurisdiction. It was made clear to me as part of the package—there were other Members of your Lordships' House of all and no parties involved—that an absolute requirement to make acceptable the broadening of the universal jurisdiction was a provision of this kind.

The basic reason is that we have only one standard of prosecution in this country. It is a good standard, it is set out in the current version of the Code for Crown Prosecutors, and it is completely politically independent. There was a discussion as to whether the provision in Clause 155 should be applied to the Attorney-General—the noble and learned Baroness at the time—or the Director of Public Prosecutions. It was decided, precisely to emphasise the principle of political independence, that the Director of Public Prosecutions should be the person named.

Having said that, I absolutely agree with every word the noble and learned Baroness has said about the role of the Attorney-General. Indeed, I was fortunate enough to receive an e-mail that winged its way from sunnier climes, where the noble and learned Lord, Lord Goldsmith, is busily engaged in unavoidable other activities. I was very flattered to receive the e-mail. In it he said that he supports this clause and is opposed to the amendment, as he said with great eloquence in Committee.

[Lord Campbell-Savours]

I am sorry to press the noble Lord—

[Lord Carlile of Berriew]

No, I am not going to give way because I think we have spent—all right, I will give way to the noble Lord because I like him.

[Lord Campbell-Savours]

I tried to take a very neutral position when I originally moved my amendment. However, it should be made absolutely clear whether the Attorney-General could ever be influenced by a political position taken by a Government in any decision that he or she might take, in any circumstances.

[Lord Carlile of Berriew]

The noble Lord knows how much I admire him, so if I say that is a really silly question I do so in a spirit of generosity. The answer is that we in this Parliament—and the noble Lord has been in this Parliament a lot longer than I have—have to make certain assumptions. Those assumptions include what the noble and learned Baroness, Lady Scotland, the former Attorney-General, said to the House a few moments ago. The sanction for people—and Governments —who behave in that way is that they will lose the confidence of Parliament. The question that the noble Lord puts is so hypothetical as to be absurd, in my experience and, I believe, in his political life too.

I do not want to delay the House too long. All I really wanted to say about the amendment is that in Committee the noble Lord, Lord Pannick, achieved a superb deconstruction of the amendment, and he has done it again today. I do not really want to add anything to what he said, together with the support that he received from the noble and learned Baroness, and indeed the very cogent summary that we received from a non-lawyer, my noble friend Lord Palmer of Childs Hill—thank God we have non-lawyers who are prepared to speak in these debates. I close by simply saying that this clause from the coalition Government, which I and my noble friends usually support, has been introduced in a continuous thread from what was agreed by the previous Government. It brings a single high standard of prosecution to this country and one that can be changed, as it has been in new versions of the Code for Crown Prosecutors test.