War Crimes/Crimes Against Humanity Referral Guidelines
- A. Scoping Exercise
- B. Referral to CPS by SO15 for early investigative advice
- C. Final investigative scoping
- D. Referral to CTD for consideration of prosecution
- E. Duties of disclosure
- Guidance for making an application for DPP consent for an application for a private arrest warrant in accordance with section 1(4A) of the Magistrates' Courts Act 1980
Updated 30 September 2019
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. It has the specialist skills to conduct an investigation or to decide that an investigation is not feasible. It is well placed to evaluate the process of obtaining the necessary evidence from abroad, the prospects of being able to protect witnesses and to secure their evidence at trial. The Counter Terrorism Division (CTD) of the Crown Prosecution Service, Special Crime and Counter Terrorism Division, has responsibility for prosecuting any such crimes.
SO15 and CTD have agreed the following guidelines in regard to the investigation and prosecution of allegations of war crimes, crimes against humanity, genocide and torture in order to enable the process for investigations, arrests and prosecutions to be conducted in an orderly and transparent way. These guidelines will be followed when there is a referral to SO15 to investigate a suspect/suspects.
Separate guidance has been published in relation to applications for the consent of the Director of Public Prosecutions for the issue of a private arrest warrant for a named suspect for grave breaches of the Geneva Conventions, hostage-taking and torture in accordance with Section1(4A) of the Magistrates’ Court Act 1980. This separate guidance is to be followed when there is an imminent prospect of a suspect arriving in this jurisdiction.
Where evidence has been collated by a private prosecutor in anticipation of making an application for an arrest warrant, this is best referred to SO15 in accordance with these Referral Guidelines as SO15 is the most appropriate body to carry out complex investigations of this type.
It is anticipated that applications for DPP consent for the making of an application for an arrest will only be made when there is no ongoing SO15 scoping exercise or investigation because where there is an ongoing scoping exercise or investigation any decision to arrest or interview will be made by SO15 after the benefit of a full investigation and full review of the evidence by CTD in accordance with the Code for Crown Prosecutors. Any such arrest will be in accordance with the Police and Criminal Evidence Act 1984 which means that a suspect can be interviewed about potential involvement prior to charge and searches can take place in order to maximise the potential evidence available.
If a suspect, who has already been referred to SO15 in accordance with these Referral Guidelines, is known to be coming into this jurisdiction before the police have completed their investigative scoping as per Sections A to C of the Guidelines, it is not anticipated that a private prosecutor will make a separate application for the consent of the DPP to make an application for a private arrest warrant. Such an application would be premature as without the completion of a proper criminal investigation it is unlikely that the DPP could make a fully informed judgement on the sufficiency of evidence stage of the Code Test. In these circumstances it is anticipated that the procedure as set out in these Referral Guidelines will continue and any decision to arrest or interview will be made by SO15 with consideration to operational issues and after a review by CTD in accordance with the Code for Crown Prosecutors.
This is an internal document and as such does not give rise to any legal rights. It is subject to revision based upon continuing experience. It is published to ensure clarity and transparency in how SO15 and CTD deal with such referrals.
A. Scoping Exercise
The crime of genocide, crimes against humanity and war crimes present a range of challenges for investigators. Their factual complexity leads to unique challenges for investigators, many of which are exacerbated by the fact that investigations to collect evidence, familiarise themselves with crime scenes, or conduct witness interviews may often need to be conducted outside this jurisdiction.
As a result when a referral is received, the SO15 investigative team will need to conduct a scoping exercise in order to make an informed decision whether to conduct an investigation. SO15 will, where appropriate, consult with partner agencies during this process. All operational scoping decisions will be made by SO15 and will not necessarily be shared with the referral body.
Referrals can be made via the Metropolitan Police website.
The scoping exercise will include the following:
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 the 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 a safe and effective investigation in that country cannot at this stage be carried out then it will not be possible to identify the suspect.
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. Are there reasonable grounds to believe that the suspect is present in the UK?
2.8. Are there reasonable grounds to believe that the suspect will come to the UK?
2.9. If not, then SO15 will refer to the Special Cases Department of the National Security Directorate of the Home Office 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 a UK national/resident or 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 third country, taking into account victim and witness safety issues?
3.5. If they are in a country which will not provide mutual legal assistance and an investigation is deemed to be impracticable, then SO15 will refer to the Special Cases Department of the National Security Directorate of the Home Office 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 SO15 will refer the case to the Special Cases Department of the National Security Directorate of the Home Office for potential future immigration action, taking into account victim and witness safety issues.
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?
5. Complaints in other jurisdictions
5.1. The party making the complaint should be asked whether they have made a complaint about the suspect in any other jurisdiction.
5.2. If so, has an investigation taken place or is there an effective ongoing investigation?
5.3 If there is an effective ongoing investigation in a more appropriate jurisdiction or an authority in a more appropriate jurisdiction is genuinely able and willing to conduct an effective investigation, then SO15 may decide not to open its own investigation. Any decision not to investigate by SO15 will be reviewed upon receipt of new information.
B. Referral to CPS Counter Terrorism Division by SO15 for early investigative advice
1. In some cases SO15 may need to engage with CTD whilst at the scoping stage of their investigation.
2. The officer in the case should refer the case to the Deputy Head of SCCTD setting areas where CTD preliminary advice is sought. This may include:
- Potential immunity;
- Potential offences.
3. The Deputy Head of SCCTD will allocate a specialist prosecutor who will provide early investigative advice. The prosecutor should be pro-active in identifying and bringing to an early conclusion those cases which have evidential deficiencies that cannot be strengthened by further investigation and supporting the viable investigations which will ultimately result in a prosecution. However, advice given at this stage is provided to inform decision making by the police; it is not to be regarded as a prosecutorial decision.
4. There may be situations where, for operational reasons, the Senior Investigating Officer (SIO) decides that an arrest should be made prior to receiving CTD early investigative advice as envisaged above.
C. Final investigative scoping
1. SO15 will decide whether a safe and proportionate investigation is feasible.
2. Although issues of immunity do not preclude investigations into allegations against persons still in office, irrespective of their function, for the purpose of prosecution, this may be a factor that SO15 will take into account when considering whether it is proportionate to conduct an effective investigation.
3. If SO15 decides to take on the investigation in a case referred by a private individual, lawyer or organisation, the individual/organisation 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 CTD in accordance with the Code for Crown Prosecutors. A copy of the Code can be found on the CPS website at www.cps.gov.uk.
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 Code. Any private individual, lawyer or individual who has submitted evidence on behalf of the victims will also be informed in writing.
5. If appropriate SO15 should refer the allegation to the Special Cases Department of the National Security Directorate of the Home Office for potential immigration action and inform them of the reasons why a safe and proportionate investigation is not feasible.
D: Referral to CTD for consideration of prosecution
1. On completion of any investigation SO15 will submit a file of evidence to CTD. This should be in electronic format wherever possible.
2. The Deputy Head of SCCTD will allocate this to a specialist prosecutor who will review it in accordance with the Code for Crown Prosecutors.
3. The Full Code Test has two stages: an evidential stage followed by a public interest stage.
4. At the evidential stage prosecutors must be satisfied that there is sufficient admissible, reliable and credible evidence in accordance with the rules of the criminal courts of England and Wales or capable of being put into such a format within a relatively short period of time to provide a realistic prospect of conviction for each of the charges. All the relevant facts must be proved with cogent admissible evidence. The court cannot take such facts as read or assume them or rely on open source internet material.
5. The burden of proof will be on the prosecution to satisfy the jury so that they are sure of the defendant's guilt. Prosecutors must consider what the defence case may be and how it is likely to affect the prospects of conviction.
6. The finding that there is a realistic prospect of conviction is based on the prosecutor's objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an objective, impartial and reasonable jury, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
7. In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.
8. When deciding the public interest, prosecutors must consider each of the questions set out in paragraphs 4.12 (a) to (g) of the Code
9. If there is sufficient evidence of these crimes it is highly likely that a prosecution would be in the public interest.
10. The Attorney General would then be asked to consent to the prosecution.
E. Duties of disclosure
1. The police and the CPS have duties under statute and common law in relation to the disclosure of unused material. This is material which may be relevant to the investigation but does not form part of the prosecution case against the accused.
2. It is important that any private individual, lawyer or organisation that refers a case to SO15 or CTD records and retains relevant material obtained or generated by them during their investigation.
3. Relevant material is any material that appears to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances unless it is incapable of having any impact upon the case.
4. Examples of relevant material includes any rough drafts of statements from victims, notes of telephone conversations with witnesses, medical notes, legal documents, e-mails, case notes etc.
5. The prosecution is under a duty to disclose to the defence any unused material that undermines their case or assists the defence case. Generally, material which can reasonably be considered capable of undermining the prosecution case against the accused or assisting the defence case will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution.
6. Examples include:
- any information which casts doubt on the reliability of a prosecution witness or on the accuracy of any prosecution evidence
- any motives for the making of false allegations by a prosecution witness
- any material which may have a bearing on the admissibility of any prosecution evidence
- the fact that a witness has sought, been offered or received a reward
- any material that might go to the credibility of a prosecution witness
- information that a person other than the accused was or might have been responsible or which points to another person whether charged or not (including a co-accused) having involvement in the commission of the offence.
7. In every case the police will appoint a Disclosure Officer who will need to confirm with any individual or organisation which refers a case for investigation whether they hold any such material and whether they are prepared to supply it to the police or allow the police to inspect it.
8. If such material is not provided or disclosed to the Disclosure Officer it is likely that a prosecution may fail.