Full legal opinion sent to government by the JLC
1. I am asked to advise the Jewish Leadership Council concerning possible changes to the law to prevent a warrant for arrest alleging war crimes being issued by a Magistrate against Israeli politicians and senior military officials who visit this country.
2. Campaigners have attempted to secure the arrest of such persons on such charges and are very likely to do so again in the future. Unlikely though it is that there would be a criminal prosecution (since that requires the consent of the Attorney-General, as explained in paragraph 5 below), far less a criminal conviction, the campaigning groups seek the media attention which an arrest would undoubtedly secure.
3. The risk of such an arrest, however unlikely it is that there would be a criminal prosecution or conviction, deters Israeli leaders from visiting this country.
4. Diplomatic immunity applied to some senior Ministers, but by no means all. And it will not protect former Ministers and military officials.
The relevant legal provisions
5. No relevant prosecution could take place in this country without the consent of the Attorney-general. See:
(1) Section 1A of the Geneva Conventions Act 1957.
(2) Section 135 of the criminal Justice Act 1988 (the offence of torture).
(3) Section 53(3) and section 54(5) of the International Criminal Court Act 2001.
6. However, section 25(2) of the Prosecution of Offences act 1985 states a general principle that where there is a requirement the proceedings for offences may only be brought (or continued) with the consent of the Attorney-General (or the Director of Public Prosecutions), this “shall not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence…”.
7. It is anomalous in the context of international relations that although a prosecution requires the consent of the Attorney-General, a person may be arrested if a Magistrate is satisfied that there is a prima facie case. It is anomalous because:
(1) The Attorney-general would consent to a prosecution only if she were satisfied on two matters:
(a) There is a realistic prospect of conviction, by reference to all the evidence, a much stricter test than whether there is a prima facie case.
(b) Prosecution is in the public interest. It would be relevant for the Attorney-General to consider, for example, whether the rule of law applied in the relevant foreign State so that there are proper means for bringing a prosecution there, and the impact of a prosecution on the relationship between this country and that foreign State, and indeed the impact on the United Kingdom’s relationship with other States. There are not relevant matters for a Magistrate to consider.
(2) Such an arrest may seriously damage the public interest, even if no prosecution follows, because politicians and generals may be deterred from visiting this country and because (if they do come here) the arrest may undermine the relationship between this country and an ally. These detriments are not confined to the risk of arrest of an Israeli politician or general. An American citizen could face the same problems.
8. It is, of course, necessary to ensure that, in appropriate cases, the individual could not flee the jurisdiction while the Attorney-general considers whether to give her consent to a prosecution. But that proper objective would be secured if section 25(2) of the Prosecution of Offences act 1985 were amended so as to provide that, in relation to the alleged war crime offences with which we are here concerned, a person may only be arrested or detained if the Attorney-General has given her prior consent. In appropriate cases, therefore, the persons concerned would need to place relevant material before the Attorney-General who could, if satisfied that it is a case in which she may thereafter give her consent to a prosecution, have power to give her consent to the taking of steps to secure the arrest of the individual. If the Attorney-General were to give such consent, it would not require the Magistrate to authorise the arrest. But it would mean that no arrest could take place unless the Attorney-General was first satisfied that it was appropriate to do so as an interim measure.
9.Such a solution would place the primary responsibility for considering the implications of an arrest where they properly belong: in a context which is closely connected with international relations, no arrest should take place unless and until the Attorney-general is satisfied that such a step should be taken, given its implications for the relationship between this country and other States. Those are matters which are, very properly, not the concern of the Magistrate.
I cannot see that there is any other practical solution to this problem. I do not believe that guidelines from the Attorney-General, or other executive action, could prevent the risk of arrest of persons who will not in fact be prosecuted, with the damaging implications I have set out above.