War crimes arrest warrant law to change

7 December 2010 by

Tzipi Livni

Updated | A new bill which seeks to reform the powers of the police also seeks to make it harder to issue private arrest warrants for universal jurisdiction offences, such as war crimes, torture and hostage taking,

The controversial change would mean that they can only be issued where there is a reasonable prospect of a successful prosecution (see our previous post).

The Police Reform and Social Responsibility Bill has now started its passage through Parliament, following its introduction to the House of Commons on 30 November 2010.

The proposed changes have proved to be highly controversial for a number of reasons. Under existing legislation a person may be brought to trial and punished in any place in the United Kingdom as if the offence had been committed in the United Kingdom. a Private individual can apply to the magistrates for an arrest warrant. The consent of the Attorney General is required to proceed with a prosecution but currently this consent does not have to be obtained before a warrant of arrest is issued.

Under the new proposals the Magistrates Court Act 1980 will be amended to provide that a warrant will not be issued unless the consent of the Direction of Public Prosecutions (DPP) has been obtained.

The legislation was initially passed following the Second World War when it was considered that certain crimes are so serious that they should not go unprosecuted, and that therefore other states should take responsibility for prosecuting them.

Essentially, the Ministry of Justice (MOJ) believe that the current system is open to abuse by people trying to obtain arrest warrants for grave crimes on the basis of flimsy evidence, usually to make a political statement or to cause embarrassment. This has led to arrest warrants being issued for high-profile foreign politicians such as Tzipi Livni (An Israeli politician) for private prosecution for war crimes, even where there is a high chance that the Attorney General’s consent to prosecution would not be forthcoming.

Responding to the proposals Amnesty International have said that:

“There was no need to change the law because there is no evidence that magistrates, who have to screen each request for a warrant with care, have acted on the basis of flimsy evidence” and that “Britain has gone soft on crime”.

Justice, a law reform organisation, agree:

There is no indication that arrest warrants for war crimes have been issued improperly or on the basis of insufficient evidence…

• Arrests and prosecutions are currently dealt with by the counter-terrorism divisions of the Metropolitan Police and CPS, both of which are facing severe budgetary cuts and both of which have much higher priorities than arresting suspected war criminals entering the UK at short notice.

• Without the right of private prosecutors to seek arrest warrants, it is therefore highly likely that no action will be taken against suspected war criminals entering the UK at short notice for short periods of time.

This view is not shared by all. Joshua Rozenberg, former legal editor of the Daily Telegraph argues that the comments made by Amnesty were absurd and that Amnesty does not seem to have understood that

private prosecutors will still be able to obtain arrest warrants, just as they can at present. The only change is that the prior consent of the DPP will be needed.

However, as Rozenberg points out

We are none the wiser about the circumstances in which the DPP would permit a private prosecutor to obtain an arrest warrant. It looks to me as if the government is leaving it to DPP to decide how to exercise his discretion.

As yet the government has remained silent on the issue of the DPP’s discretion in these cases. It will be interesting to see how this issue is dealt with and whether or not there will be guidelines issued to the DPP on how this discretion should be exercised.

Update, 8 December 2010 – see this interesting post on the PHD Studies on Human Rights blog on the history of universal jurisdiction. William A. Schabas writes:

I have often said that universal jurisdiction generates more heat than light. For all of the talk about it, few prosecutions have actually succeeded. The deterrent effect seems largely confined to a fear of foreign travel rather than the certainty of prosecution. Even when the threat of prosecution appears somewhat serious, it is usually more of a nuisance than a genuine concern about being put in jail for a long time. Many of the reports describe universal jurisdiction as a component of the struggle against impunity. Perhaps, but it is a small component. International tribunals and truth commissions seem a better investment of scarce resources.

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