Police Reform and Social Responsibility Bill

I was a witness to the discussions in the Bishops’ Bar between the noble Lords, Lord Thomas and Lord Carlile. I will not give evidence; I claim immunity. I welcome Clause 154. It will remedy a serious anomaly in the current state of our law. The anomaly is that although a prosecution in this sensitive and important context requires the consent of the Attorney-General, a person may be arrested and detained without any consideration as to whether such consent is likely to be given. It has been suggested in this debate that there have been very few cases of that. So what is all the fuss about? Why do we need to change the law? The noble Lord, Lord Campbell-Savours, made that point in opening and the noble Baroness, Lady D’Souza, made the same point. I declare an interest. Over the past few years, I have advised, pro bono, a number of individuals who have been deterred from visiting this country by reason of the state of our law. They have been deterred even though there was no realistic prospect whatever of the Attorney-General giving consent to a prosecution. These people would not have been protected by diplomatic immunity because that applies only to certain very senior Ministers. They were deterred from coming to this country because of the risk that material would be put before a magistrate at an urgently convened hearing which might result in them being arrested and detained for a couple of nights, with all the inconvenience and embarrassment that that would cause, until this unhappy matter could be sorted out by the Attorney-General confirming that he or she did not intend to prosecute. So it is quite wrong to suggest that the current law has no serious effect. I should also mention that I have also advised, again on a pro bono basis, Jewish community groups in this country concerned about this aspect of the law. The current law needs amendment. The law should not be threatening people with arrest and detention, and deterring them from coming to this country, perhaps for the purpose of discussions about peace in the Middle East, in respect of an alleged offence when there is no realistic prospect of the Attorney-General giving consent to prosecution. The law encourages the use of these procedures as a political gesture, and that has no place under the rule of law. Five arguments have been advanced today as to why the current state of the law should be maintained. I briefly seek to answer them. The first argument is that the individual will be arrested and detained only if a magistrate consents. The noble Lord, Lord Campbell-Savours, made this point in opening, and the noble Baroness, Lady D’Souza, made the same point. The noble Lord suggested that this new clause means that the Ministry of Justice has no confidence in our judgments. The difficulty with that argument is that, as the Director of Public Prosecutions carefully explained in his evidence to the House of Commons Public Bill Committee, the magistrate does not look at and assess the evidence. The magistrate proceeds simply on the basis of what is placed before the court and asks the simple question whether the allegation made satisfies the elements of the offence as defined by law. The magistrate does not apply the code for Crown prosecutors. As noble Lords know, there are two criteria in that code. Is there a realistic prospect of conviction, and would a prosecution be in the public interest? The magistrate applies neither of those tests. The second argument that has been advanced is that Clause 154 runs a risk of introducing political expediency into this area of the law—a point made by the noble Baroness, Lady D’Souza. I do not share that concern. Under the current law, the Attorney-General decides whether to consent to prosecutions. No one suggests, I think, that the system is currently abused. In respect of the new role that will be conferred on the DPP, he himself emphasised in his evidence to the Public Bill Committee that he would of course consult the Attorney-General, but he would take a decision in this context and would do so independent of government. There is absolutely no reason to doubt that he would comply with those requirements. The third argument being made is that Clause 154 would somehow reduce this country’s commitment to universal jurisdiction for war crimes and other serious offences. Again, the noble Baroness, Lady D’Souza, expressed that concern. There is no basis for that suggestion. As noble Lords know, under current law a prosecution may be brought only with the consent of the Attorney-General, who applies the principles in the code for Crown prosecutors. That will remain the law. Fourthly, concern has been expressed today as to whether the DPP could act in urgent circumstances if a defendant were playing a short visit to this country. Again, your Lordships need to look at the evidence given to the Public Bill Committee by the Director of Public Prosecutions. He explained that he would encourage public interest groups to come to him early with any evidence of relevant crimes. He explained that he has lawyers available to work at short notice, around the clock. That may have impacts upon the domestic harmony of the noble Lord, Lord Carlile, but the DPP has such hard-working expert employees. The DPP said that if time is very tight, he would apply a threshold test in this context: is this a case in which there is enough to satisfy him that, within a reasonable period, there will be sufficient evidence to provide a realistic prospect of conviction? That is a fair, sensible and proper approach to take, as I am sure noble Lords will agree. It is an approach far better than to allow for foreign politicians and others to be deterred from coming to this country because of a fear that magistrates may, on hearing urgent applications, order their arrest and detention without any consideration at all of whether there is any realistic prospect of the Attorney-General giving consent to prosecution. Fifthly and finally, there was the concern of the noble Lord, Lord Phillips of Sudbury, who said, ““Do not meddle with citizens’ rights: that is a very dangerous thing to do””. Yet of course a private prosecution in this context cannot proceed under current law without the consent of the Attorney-General, who applies the twofold test in the code for Crown prosecutors. Nothing in Clause 154 interferes with the right of the private citizen to bring a private prosecution which was, and will remain, a matter that then requires the consent of the Attorney-General. None of the amendments before this Committee is necessary or appropriate. Amendments 245, 245A and 245AZA would all give the director an advisory role. Yet that would leave open the anomaly that the magistrate who takes the decision on whether to order arrest and detention applies a different standard to that of the Attorney-General and the DPP, who look at whether there is a realistic prospect of conviction and any public interest considerations. The amendments would ensure that the advice from the DPP would be on issues which are not for the magistrate to determine and are therefore, with great respect, very difficult to understand.