The Government are concerned about the implications for the United Kingdom’s relations with other states of the risk that foreign visitors to this country might be arrested on the application of a private individual, on suspicion of the gravest of offences, on the basis of evidence that might well be insufficient to gain the Attorney-General’s consent (which is normally required for offences of this kind to be prosecuted), or to secure a conviction by a jury.
The problem is not hypothetical, as applications for an arrest warrant have been made, on at least two occasions successfully; and there is reason to believe that the risk of arrest may discourage prominent people, with whom HM Government would wish to engage, from visiting this country.
The problem arises as a result of four factors:
(1) The jurisdiction of the courts in England and Wales is basically territorial—with some exceptions they try only offences committed here. However, war crimes under the Geneva Conventions Act 1957, and a small number of other grave offences, are subject to “universal jurisdiction” which enables them to be prosecuted here even though they were committed outside the United Kingdom by someone who is not a British national.
(2) It is open to any private individual to initiate criminal proceedings, including for universal jurisdiction offences, by applying to a magistrate for a summons or an arrest warrant.
(3) The evidence required for the issue of a summons or warrant is far less onerous than that applied by the Crown Prosecution Service (CPS) in determining whether a prosecution should go ahead. The court’s duty is to ascertain that it has jurisdiction; it then looks to see if there is some prima facie information that an offence known to the law has been committed by the person named. The court does not need to decide that there is a realistic prospect of conviction.
(4) For almost all universal jurisdiction offences there is a safeguard in that the consent of the Attorney-General is required in order for a prosecution to go ahead. But while a summons will not be issued until the necessary consent has been given for the prosecution to proceed, absence of consent does not prevent the issue of an arrest warrant.
The facility for seeking an arrest warrant in these circumstances without the prior consent of the prosecutor is unusual. It is paralleled in only a very few other jurisdictions of which we are aware. In most jurisdictions prosecutorial consent is required.
The Government have considered this matter very carefully. They have concluded that there is a case for restricting to the CPS the right to prosecute this narrow range of universal jurisdiction offences, in circumstances where the offence is alleged to have been committed outside the United Kingdom by a person who is not a British national. The effect of this change—which would require legislation—would be that in such cases it would no longer be possible for anyone other than the CPS (or the Law Officers) to obtain an arrest warrant. This would ensure that action is taken only where the expert and independent investigators and prosecutors in the police and CPS are confident that there is a realistic likelihood of a successful prosecution.
Our commitment to international justice is a strong one. This is why, by section 70 of the Coroners and Justice Act 2009, we recently amended the International Criminal Court Act 2001 to ensure that we could prosecute serious international crimes committed as far back as 1991 by UK nationals and residents, thus covering the horrific events in Rwanda and the former Yugoslavia. We remain absolutely committed to upholding the principles of universal jurisdiction, so that there can be no impunity for those suspected of such grave offences. What we propose is wholly consistent with those principles, and would bring us into line with the practice of a number of our European and North American partners.
The Government recognise that this is a controversial issue, involving as it does the long-standing right of private prosecution. Therefore, rather than legislating now, we are going to seek views on the proposals we are minded to make. In particular, I am writing to the Chairman of the Justice Select Committee to ask if his Committee would consider those proposals. We intend to conclude this process within a month, and to receive views by Tuesday 6 April. A copy of my letter to the Chairman will shortly be placed in the Libraries of both Houses.