Police Reform and Social Responsibility Bill

Lord Thomas of Gresford Excerpts

Thursday 14th July 2011 Lords Chamber

Moved by

[Lord Thomas of Gresford]

308A: Clause 155, page 102, line 20, at end insert—
“(4AA) The Director of Public Prosecutions shall give consent if—
(a) the evidence establishes a realistic prospect of conviction and the prosecution would be in the public interest, or (b) the evidence raises a reasonable suspicion that an offence has been committed and that the suspect committed it, and the Director of Public Prosecutions is satisfied that there are reasonable grounds for believing that a continuing investigation will provide further evidence, within a reasonable period of time, so that all the evidence taken together is capable of establishing a realistic prospect of conviction.(4AB) In the case of consent granted under subsection (4AA)(b), the Director of Public Prosecutions shall keep that case under review, so that if evidence establishing a realistic prospect of conviction is not available within a reasonable period, the Director of Public Prosecutions shall take over and discontinue the case.”

[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—

[Lord Soley]

I do not understand that. I want to know—it is important—whether the answer is yes or no.

[Lord Thomas of Gresford]

The answer is no; it is obvious. That is why I do not propose to press this amendment to a Division. It is as simple as that. That is what I was about to say. The Director of Public Prosecutions has indicated that his views will find their way into the Code for Crown Prosecutors once the legislation has been passed. We are content with that. Failure by Crown prosecutors to follow the code renders their decision-making susceptible to potential challenge by judicial review. I repeat, to make myself completely clear: I do not propose to press this matter to a Division. However, I am interested in the Minister’s response on this important, and clearly slightly divisive, question. I beg to move.

[Lord Pannick]

If nobody else wishes to speak on this matter, I certainly will. I was very pleased to hear from the noble Lord, Lord Thomas of Gresford, that he and the noble Lord, Lord Macdonald of River Glaven, agree with the thrust of Clause 155. As he stated, it is absurd to allow for an arrest warrant to be issued without the consent of the DPP when a private prosecution cannot proceed without the express consent of the Attorney-General. I oppose Amendment 308A. Its purport would be to include in the legislation criteria that would tell the director how to exercise his discretion in giving consent to the issue of an arrest warrant. As we have just heard as a result of the cross-examination techniques of the noble Lord, Lord Carlile, it is clear—as I understand the noble Lord, Lord Thomas—that the Director of Public Prosecutions does not wish to see his discretion confined in the legislation.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I start by agreeing with the observations of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that it is important that we have an efficient system of prosecution available in this country to deal with cases, when the evidence is available, that relate not only to war crimes but also to many of the other offences listed in this clause in respect of which the United Kingdom has sought to assert universal jurisdiction. My noble friend Lord Palmer of Childs Hill made it clear that nothing in this clause seeks to end universal jurisdiction, nor indeed does it end the right of private prosecution for universal jurisdiction cases. Although such grave offences may well seem better suited to prosecution by the state, we think it right that citizens should be able to prosecute them.

Clause 155 allows anyone to apply to a court to initiate a private prosecution for universal jurisdiction offences by using arrest warrants where appropriate. It prevents a warrant being issued in cases where there is no realistic prospect of a viable prosecution taking place. As these are cases where issuing a warrant would achieve nothing, that is surely right. That point was made by my noble friend Lord Thomas of Gresford in moving his amendment. Indeed, with a singular exception, no one has dissented from the reform and from the purpose of Clause 155, which introduces the consent of the Director of Public Prosecutions. Through this amendment, what we are looking at is the question of whether the criteria applied and approach taken by the DPP in giving consent is something which should be on the face of the Bill. It is certainly the Government’s view, which I think is shared by most noble Lords who contributed to the debate, that it should not.

Those of us who have read the clear and cogent evidence given by the DPP to the Public Bill Committee in the other place will have seen clearly how, if Parliament passes this provision, he intends to exercise the duty of whether or not to give consent. He has also made it clear that he proposes to apply the same code tests to the evidential and public interest tests that are used for prosecutions generally, and he has further indicated, as has been mentioned in this debate, that where necessary he would apply the lesser standard of the threshold test. He indicated to the Public Bill Committee that he intends to publish guidelines so that everyone will know how he would deal with decisions on whether or not to give consent.

I, too, want to endorse the comments of noble Lords that we can have confidence that the DPP will exercise his discretion properly. He has a track record which gives us full confidence that he will do that. I share the view expressed by my noble friend Lord Carlile of Berriew, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that that is a good reason not to inhibit that discretion by putting things into statute. These tests are of general application and it is not clear why they should be set in stone by this amendment. Indeed, in Committee my noble friend Lord Carlile said that the amendment attempts,

“to fix in statutory stone something that is much more evolutionary—and needs to be”.—[Official Report, 16/6/11; col. 1011.]

We would not wish to stop that evolution, particularly given the commitment to transparency on the part of the DPP.

A further point was noted by the noble and learned Lord, Lord Goldsmith, in Committee and has been highlighted today, not least by the noble Lord, Lord Pannick. It relates to the public interest dimension of the threshold test, which is not mentioned in the amendment. I rather thought that my noble friend Lord Thomas was suggesting that it was not necessarily part of the threshold test. However, paragraph 5.12 of the Code for Crown Prosecutors states:

“If both parts of the Threshold Test are satisfied, prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time”.

If we put something in statute, there is a danger of actually missing something out that is in the test as it applies at the moment. Perhaps that underlines why it is not desirable to have this in legislation.

My noble friend has indicated that he is not going to press his amendment, and I think that will meet with the general support of the House. I encourage him to confirm that.

[Lord Thomas of Gresford]

My Lords, a great deal of heat has been engendered in the course of the debate and I do not propose to add to it, although certain things were said about deconstructing this amendment with which I do not agree. However, I can take them up at a different time. Let me make it clear that there have been discussions between my noble friend Lord Macdonald and Mr Keir Starmer and they have come to a conclusion that is acceptable to both; namely, that the test should be published in guidance. No doubt it will be applied appropriately and in accordance with the traditions of this country, which are that the Director of Public Prosecutions and the Attorney-General should act in the public interest and not for the purposes of any political party. I beg leave to withdraw the amendment.

Amendment 308A withdrawn.