War Crimes/Crimes Against Humanity Referral Guidelines
- Introduction
- A. Initial Scoping - referral to SO15 war crimes team
- B. Referral to CPS by SO15
- C. Final investigative scoping by SO15
- D. Prosecution
- Addendum
Introduction
The war crimes team of the Metropolitan Police Counter Terrorism Command (SO15) is responsible for the investigation of all allegations of war crimes, crimes against humanity, genocide and torture. The Crown Prosecution Service, Special Crime and Counter Terrorism Division (SCCTD) has responsibility for prosecuting any such crimes.
SO15 and SCCTD have agreed the following guidelines in regard to the investigation and prosecution of allegations of war crimes, crimes against humanity, genocide and torture.
Section 153 of the Police and Social Responsibility Act 2011 requires the consent of the Director of Public Prosecutions (DPP) before an arrest warrant can be issued for grave breaches of the Geneva Conventions, hostage-taking and torture. The agreed guidelines for applications for DPP consent for the issue of a private arrest warrant for a named suspect for such offences are contained in an addendum to this document.
This document is intended to be a living document that can be amended and updated in the light of continuing experience. It will be reviewed every six months.
A. Initial Scoping- referral to SO15 war crimes team
When a referral is received the SO15 investigative team will conduct the following initial scoping exercise in order to make an informed decision whether to conduct an investigation.
1, Identifiable suspect
1.1. Is the suspect named or identifiable?
1.2. If not, is there a realistic prospect of identifying the suspect?
1.3. Will this identification require enquiries in the UK?
1.4. Will this identification require enquiries in country where alleged crime/s took place?
1.5. If so, will this country provide mutual legal assistance in relation to identifying the suspect, either formally or informally?
1.6. If not, are there any other reasonable means of obtaining evidence of identification?
1.7. If not, then it will not be possible to identify the suspect and so an effective investigation cannot at this stage be carried out.
1.8 If the country will provide mutual legal assistance in relation to identification, can SO15 carry out a safe and effective investigation in that country? Factors which may not allow a safe and effective investigation will include:
- the country being involved in armed conflict
- the country being politically unstable
- risk of harm to victims or witnesses
1.9. If an effective investigation cannot at this stage be carried out then suspect cannot be identified.
2. What is the nationality and location of the named and identifiable suspect?
For crimes other than grave breaches of the Geneva Conventions, torture or hostage taking:
2.1. Is the named/identifiable suspect a UK national?
2.2. If so, is the suspect UK national present in the UK?
2.3. If not, in which country is the suspect UK national?
2.4. Is this a country from which the UK can extradite?
2.5. If not the investigation will be suspended until there is a reasonable prospect of the suspect returning to the UK voluntarily
2.6. If the named/identifiable suspect is not a UK national, is he/she a UK resident as defined in S67A International Criminal Court Act 2001 as amended by S70(4) Coroners and Justice Act 2009?
For crimes of grave breaches of the Geneva Conventions, torture or hostage taking (for which UK has universal jurisdiction)
2.7. Is the suspect present in the UK?
2.8. Is there a reasonable prospect of the suspect coming to the UK?
2.9. If not, then SO15 will refer to UKBA Special Cases Directorate for potential future immigration action, taking into account victim and witness safety issues.
3. Identification of victims/witnesses where suspect is named/ identifiable and either UK national/resident/present or likely to be present in the UK
3.1. Are the victims/witnesses named or identifiable?
3.2. If so, are they in the UK or abroad?
3.3. If abroad, are they in a country which will provide mutual legal assistance?
3.4. If they are in a country which will not provide mutual legal assistance, can they be interviewed in a 3rd country?
3.5. If they are in a country which will not provide mutual legal assistance and an investigation is deemed to be impracticable, then referral to be retained by UKBA Special Cases Directorate for potential future immigration action, taking into account victim and witness safety issues
3.6. If the victims/witnesses are not named or identifiable, is there a realistic prospect of identifying them?
3.7. Will this identification require enquiries in the UK?
3.8. Will this identification require reasonable enquiries to be made in the country where alleged crime/s took place?
3.9. If so, will this country provide mutual legal assistance?
3.10. If so, can SO15 carry out a safe and effective investigation?
3.11. If not, are there any other reasonable means of obtaining evidence of identification?
3.12. If not, then case to be referred to the UKBA Special Cases Directorate for potential future immigration action, taking into account victim and witness safety issues
3.13. If an investigation is not possible SO15 to inform victims/ witnesses in accordance with the Victim’s Charter
4. Consultation with International Criminal Court and ad hoc tribunals
4.1. Are there any outstanding investigations in relation to the suspect?
4.2. Are there any outstanding investigations in relation to any witness?
B. Referral to CPS by SO15
1. As set out above, the criteria for referral to CPS are:
- Suspect is named or identifiable
- Suspect is a UK national/ UK resident for crimes other than torture or hostage taking
- Suspect can be identified by reasonable enquiries in a country willing to provide mutual legal assistance and where SO15 can carry out effective investigation
- Victim/witnesses are named or identifiable
- Victim/witnesses are present in the UK
- Victim/witnesses can be identified by reasonable enquiries in a country willing to provide mutual legal assistance and where SO15 can carry out effective investigation
2. Upon receipt of a referral from SO15 the Deputy Head of SCCTD will allocate a reviewing lawyer who will consider and advise upon the following:
2.1. What potential offences are disclosed?
2.2. Whether the UK has jurisdiction
2.3. Whether the suspect could have immunity
2.4. Details of the referred allegation:
- Does it contain sufficient evidence of the alleged crime?
- Does it disclose personal involvement by the suspect or command responsibility?
- If not, is there a realistic prospect of obtaining further evidence?
- Will this require further reasonable enquiries in the UK or abroad?
- If abroad, will the country concerned provide mutual legal assistance?
- If so, can SO15 carry out a safe and effective investigation?
- If not, are there any other reasonable means of obtaining further evidence of the allegation?
2.5 Strength of potential evidence
- Is there more than one witness or other independent evidence to support the allegation?
- If not can such evidence be obtained?
- Will this require further reasonable enquiries in the UK or abroad?
- If abroad, will the country concerned provide mutual legal assistance?
- If so, can SO15 carry out a safe and effective investigation?
- If not, are there any other reasonable means of obtaining further details of the allegation?
3. Other than in urgent cases the CPS reviewing lawyer will wherever possible provide initial written advice to SO15 within 28 days in relation to points 2.1 to 2.5 above and any investigative actions(including requests for mutual legal assistance) deemed necessary.
4. There may be situations where, for operational reasons, the Senior Investigating Officer (SIO) decides that an arrest should be made prior to receiving SCCTD written advice as envisaged in (2) above. In these situations the CPS reviewing lawyer will provide advice as to jurisdiction and immunity and more detailed advice at a later date agreed with the SIO.
5. If there is no jurisdiction or the suspect has immunity, SO15 will inform the victim or his/her solicitor.
6. If there are potential justiciable offences, SO15 will decide whether or not to carry out an investigation.
C. Final investigative scoping by SO15
1. SO15 will decide whether a safe and proportionate investigation is feasible taking into account factors above and SCCTD advice.
2. If the decision is that a full investigation is feasible, the SIO will inform the Deputy Head of SCCTD who will allocate a reviewing lawyer (wherever possible the lawyer who provided the initial advice) to advise as required pre and post arrest. An early strategy meeting will be held and all key decisions recorded.
3. If the case has been referred by a private individual, lawyer or organisation they will be informed that SO15 are willing to take on the investigation. From that point all investigative decisions and the decision whether or not to arrest a suspect will be made by SO15 and any decision on prosecution will be made independently by CPS in accordance with the Code for Crown Prosecutors.
4. If such an investigation is not possible SO15 will inform the victim/s of this decision and the reasons for it as soon as reasonably practicable in accordance with the Victim’s Charter. Any private individual, lawyer or individual who has submitted evidence on behalf of the victims will also be informed in writing.
5. If appropriate S015 should consider whether it is appropriate for the allegation to be referred to another government department for other potential action. If it is decided that the allegation should be referred to the UKBA Special Cases Directorate for potential immigration action the SCCTD reviewing lawyer will provide the UKBA with a note setting out potential offences disclosed and whether the evidence discloses personal involvement by the suspect or command responsibility and SO15 will provide the UKBA with the reasons why a safe and proportionate investigation is not feasible.
D. Prosecution
1. On completion of any investigation SO15 will submit a file of evidence to SCCTD.
2. The CPS reviewing lawyer will review it in accordance with the Code for Crown Prosecutors. A copy of this Code can be found on CPS website at www.cps.gov.uk.
3. In a criminal prosecution, all the relevant facts must be proved with cogent admissible evidence. The court cannot take such facts as read or assume them, and the prosecution and the court must observe the defendant’s right to a fair trial. The burden of proof will be on the prosecution to satisfy the jury so they are sure of the defendant’s guilt. Any defence raised by or available to a suspect must be disproved by the prosecution.
4. If there is sufficient evidence it is highly likely that a prosecution would meet the public interest test. The Attorney General would then be asked to consent to the prosecution. An application for the Attorney General’s consent to the prosecution must be made in accordance with the procedure set out in the CPS Legal Guidance for Consents to Prosecute. The application to the Attorney General must demonstrate how CPS considers the evidential and public interest stages of the Code for Crown Prosecutors to be met. In accordance with paragraph 4(a)(2) of the Protocol between the Attorney General and the Prosecuting Departments (see www.attorneygeneral.gov.uk), it is a constitutional principle that when taking a decision whether to consent to a prosecution, the Attorney General acts independently of government, applying well established prosecution principles of evidential sufficiency and public interest.
Addendum
GUIDELINES FOR APPLICATION FOR DPP CONSENT FOR ISSUE OF PRIVATE ARREST WARRANT IN ACCORDANCE WITH SECTION 153 OF THE POLICE AND SOCIAL RESPONSIBILITY ACT 2011
Introduction
An information for the issue of an arrest warrant can be laid before a justice of the peace by any individual with a grievance or by his counsel or solicitor. Applications for these warrants are made to a District Judge at the City of Westminster Magistrates’ Court.
A. Submission of evidence
1. Any submission of evidence by a private individual, lawyer or organisation to the CPS for an application for DPP consent should state whether there is consent for the CPS to refer the evidence to SO15 as the most appropriate body to carry out the initial scoping as per Section A of the Referral Guidelines.
2. It is requested that all evidence is submitted to SCCTD:
- well in advance of any anticipated application. (If there is consent for the evidence to be sent to SO15 this will allow SOI5 and CPS reviewing lawyer to carry out the actions set out in sections A to C of the Referral Guidelines and for the private individual, lawyer or organisation to be informed whether the police have decided that it is feasible to undertake a full investigation or not)
- if this is not possible, at least 48 hours before any anticipated application
- if this is not possible, as the referral is urgent pending the imminent arrival of a suspect in England and Wales, as soon as possible.
3. Any submission should include full details of the suspect and details of when he/she is arriving into the jurisdiction and by what means. It is important to also include details of his/her position of authority and the nature of his/her visit so that the CPS reviewing lawyer will be immediately alerted to any potential issues of immunity.
4. The CPS reviewing lawyer will then consider the evidence that has been collated by the private individual, lawyer or organisation as set out in Section B below.
B. Grant of DPP consent for a warrant
1. On receipt of a file of evidence from a private individual, lawyer or organisation the CPS reviewing lawyer will review it in accordance with the Code for Crown Prosecutors, a copy of which can be found on the CPS website at www.cps.gov.uk
2 In a criminal prosecution, all the relevant facts must be proved with cogent admissible evidence. The court cannot take such facts as read or assume them, and the prosecution and the court must observe the defendant’s right to a fair trial. The burden of proof will be on the prosecution to satisfy the jury so they are sure of the defendant’s guilt. Any defence raised by or available to a suspect must be disproved by the prosecution.
3. If there is sufficient evidence and it is in the public interest the DPP will grant consent for the issue of a warrant.
4. In an exceptional case, where there is the need for an emergency application for an arrest warrant, the CPS reviewing lawyer will consider the case based upon the material submitted as there will be no opportunity to rectify or materially improve the evidence at that stage. If there is insufficient evidence to satisfy the evidential stage of the Full Code Test, the CPS lawyer will consider the principles set out in the Threshold Test (see paragraphs 5.1 - 5.9 of the Code).
5. During the review of the evidence the CPS reviewing lawyer will, wherever possible, provide the private individual, lawyer or organisation with a timescale for his/her decision-making.
6. If the Threshold test is satisfied the CPS reviewing lawyer will provide written guidance to the private individual, lawyer or organisation as to what evidence is required to bring the evidence to the standard required to satisfy the Full Code Test.
7. Where the Code tests are not satisfied, the DPP cannot consent to a prosecution. The CPS reviewing lawyer will provide written guidance to a private individual or organisation suggesting further lines of enquiry or ways in which information can be turned into admissible evidence. Where time is of the essence the reviewing lawyer may also provide oral guidance.
8. In relation to the public interest stage the DPP will consider the public interest factors in favour and against granting consent including the more common public interest factors set out in the Code. The DPP will consult the Attorney General in the usual way.
9. The consent function for the issue of a warrant will be exercised by the DPP personally or the Head or Deputy Head of the Special Crime and Counter Terrorism Division.
10. If the DPP grants consent for the issue of a warrant this will be recorded or otherwise evidenced in writing and be provided to the person applying for the arrest warrant. The CPS lawyer will also inform the City of Westminster Magistrates’ Court.
11. If the DPP declines to consent to the issue of a warrant, the complainant, lawyer or organisation will be informed of this in writing.
12. It may be that after either granting or refusing consent the DPP will issue a public statement.
December 2011
