Police Reform and Social Responsibility Bill

Lord Goldsmith Excerpts

Thursday 16th June 2011 Lords Chamber

[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.

[Lord Goldsmith]

I wonder if the noble Lord could help me on one point. As an experienced criminal practitioner, as he rightly describes himself, he is well aware 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. I note that in the amendment tabled in his name and that of the noble Lord, Lord Macdonald of River Glaven, there are two parts to this test. One part of the test, in proposed new subsection (4AA)(a), applies when there is enough evidence to be satisfied that there is a realistic prospect, so in that case there needs to be a consideration of the public interest. In the second test, in proposed new paragraph (b), which is where there is not enough evidence, there is no reference to the public interest at all. That is probably the most likely situation—that there is not enough evidence at that stage to know if there is a realistic prospect—so why does the public interest not come into his amendment at all, even though he has been addressing it on the basis that it is to replicate the current system, which requires the public interest to be considered?

[Lord Thomas of Gresford]

The noble and learned Lord makes a very valid point and I accept that of course it is intended that the public interest test should apply in the second of the two instances as well, although it is not stated in the amendment. As the noble Lord said, we are seeking a solution that will ameliorate the decision of the Government to make it an essential prerequisite for the commencement of a private prosecution that the director consents. We simply seek to make it absolutely clear that the director will not apply a different test to people who come to this country. I hope that that answers the noble and learned Lord.

[Lord Goldsmith]

Does the noble Lord agree that in those circumstances it would be wrong for the House to accept the amendment as it is put forward?

[Lord Thomas of Gresford]

I do not propose to ask the House to agree to this amendment tonight. This is the Committee stage. We shall consider the issue further. As I have already said, the criticisms so gently advanced to me by my noble friend have led me to believe that we might consider how to rephrase it in a way that would be more acceptable to the House.

--- Later in debate ---

[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.

[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.

[Lord Thomas of Gresford]

Does the noble and learned Lord agree that it would be quite wrong for the DPP to give in advance immunity to someone coming to this country?

[Lord Goldsmith]

I am really not sure that I agree with the noble Lord. It is not an immunity, but if the question arose and the DPP had seen the material that was going to be produced, had examined it and, having regard to the evidential test and the public interest test, he was of the view that he would not consent to a prosecution, I do not see why he should not say that. That would not be done in a broadcast, but if there were a legitimate reason to know the answer, so that someone can, for example, come to attend an important meeting with Her Majesty's Government, why not? In that respect, what the noble Lord, Lord Carlile of Berriew, said about the DPP having an opportunity to consult a policy statement about this was very wise. That is exactly what I would expect this particular DPP to do; and he would look to what all the interests were. That would, no doubt, be one of the questions that he would consider—to what extent is it right? He would want to make sure that he is not bounced into making wrong decisions and that he has an adequate opportunity to decide. That is important.

That takes me to where I was going when the noble Lord, Lord Thomas of Gresford, intervened—the amendment in his name and that of the noble Lord, Lord Macdonald of River Glaven. There are two points about that. The first is the point made by the noble Lord, Lord Carlile. Neither this DDP nor, I hope, any DPP needs the straightjacket of being told by Parliament how to do his or her job. They can be trusted to do that without that sort of straightjacket.

[Lord Thomas of Gresford]

My Lords—

[Lord Goldsmith]

Let me just make this point and of course I will give way to the noble Lord. I made the point about that amendment not just because it is surprising that he is putting it forward on the basis that it is intended to restate the law as it stands, because it patently does not do that, but because, as the noble Lord, Lord Carlile, said, it demonstrates the dangers of trying to be prescriptive as to exactly what the tests should be.

[Lord Thomas of Gresford]

I think that the noble and learned Lord misunderstands the purpose behind our amendment, which is not to put a straightjacket around the director, but to give assurance to people who want to come to this country that they will be treated in exactly the same way as a resident or a British citizen would be treated. I should have thought that the noble Lord, Lord Pannick, would welcome that assurance for the purposes of advising his clients.

--- 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.