§ The Solicitor-General (Mr. Ross Cranston)
With permission, Mr. Deputy Speaker, I should like to make a statement about the role of the Crown Prosecution Service in respect of Senator Pinochet.
Earlier today, the CPS, as prosecuting authority for England and Wales, advised the Metropolitan police service that the material provided by the Kingdom of Spain for the purposes of extradition proceedings would not be admissible in a criminal prosecution in England and Wales and could not be put into admissible form without a full police investigation. On the material available to the CPS, therefore, there is no realistic prospect in this jurisdiction of convicting Senator Pinochet of any criminal offence.
The CPS also advised the Metropolitan police service that, in view of the independent medical report on Senator Pinochet, commissioned by the Home Secretary, and in view of representations made to the Home Secretary concerning the report, no court in England and Wales would allow a trial of Senator Pinochet to take place, whatever the evidence. Following that advice, the MPS decided that no purpose would be served in seeking to effect an arrest of Senator Pinochet.
Those decisions were necessary because of article 7 of the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment. The convention provides that if a state does not extradite, it must consider whether to prosecute the person itself. Accordingly, following the Home Secretary's decision not to extradite Senator Pinochet to Spain, the Spanish extradition papers were submitted formally to the CPS as the independent prosecuting authority for England and Wales. The CPS in turn formally referred the papers to the MPS, which is responsible for investigating offences and deciding whether to arrest or charge people.
In fact, the papers had previously been supplied to the CPS and the police and had been carefully studied by them, so both the CPS and the police were in a position to announce their decisions today. However, before I say more about that, I should set out the involvement of the CPS in the case. The CPS had a role as agent for the Kingdom of Spain, which arose after Senator Pinochet's arrest on 16 October 1998, pursuant to a warrant issued by the fifth central magistrates court in Madrid. On 18 October 1998, the CPS commenced acting as agent on behalf of the Kingdom of Spain in the extradition proceedings, and it has continued to act for the Kingdom of Spain throughout the extradition process.
In its role as agent for the Kingdom of Spain, the CPS acted in accordance with the instructions of the requesting state, which is in accordance with long-standing reciprocal arrangements between this jurisdiction and other countries. In doing so, it has been quite independent of the Government. In performing its role as agent for the Kingdom of Spain, the CPS has given confidential legal advice on the extradition proceedings and received instructions.
Let me turn to the separate and distinct function of the CPS in this matter, which is the main focus of this statement. That function is its role as the independent prosecuting authority for England and Wales, and its 590 involvement in that regard arose in two ways. First, in October 1998 two firms of solicitors, acting for a number of individuals, applied to the then Attorney-General, my right hon. and learned Friend the Member for Aberavon (Sir J. Morris), for consent to prosecute Senator Pinochet in this jurisdiction for offences of torture, contrary to section 134 of the Criminal Justice Act 1988, and for offences of hostage taking, contrary to the Taking of Hostages Act 1982.
The papers in one of these applications were also copied by the solicitors to the MPS, which in turn sought the advice of the CPS as prosecuting authority. In those circumstances, my right hon. and learned Friend deemed it appropriate to liaise with the CPS before reaching a final conclusion on the applications for Law Officer consent to prosecute. The Attorney-General also received advice from senior Treasury counsel. Subsequently, he advised the solicitors that decisions on whether or not to grant Law Officer consent to prosecute are made by applying the tests set out in the code for Crown prosecutors, and that the legislation criminalising torture and hostage taking is not retrospective—a point later confirmed by a decision of the Appellate Committee of the House of Lords. He also advised that the material submitted in support of the applications contained insufficient admissible evidence against Senator Pinochet to justify the granting of Law Officer consent to prosecute for either offence. Consent to prosecute was, accordingly, refused.
I should add that a third firm of solicitors, acting for a number of Chileans, applied last week for my consent to prosecute Senator Pinochet for offences of torture. That application has been carefully considered and the advice of counsel was obtained. Again, the code of Crown prosecutors was applied to the decision-making process. The first requirement of the code is that there should be sufficient admissible evidence for a realistic prospect of conviction before a prosecution may follow. The application contained no evidence of a kind admissible in this jurisdiction, and I accordingly declined to grant my consent.
The second function of the CPS as prosecuting authority has been to consider the case for prosecution of Senator Pinochet in this jurisdiction under article 7 of the UN convention against torture and other cruel, inhuman or degrading treatment or punishment. The CPS and police recognised that article 7 might come into operation in respect of the Spanish extradition papers. To prepare for that contingency, the CPS obtained copies of all the relevant Spanish extradition papers in March and April 1999 in its capacity as the prosecuting authority for England and Wales. The MPS, as investigating authority, was also supplied with a copy of those papers. All that was done with the agreement of the Kingdom of Spain and the Home Office.
The Spanish extradition papers were allocated to lawyers in the CPS separate from those acting for the Kingdom of Spain. The provisional conclusion of the CPS was that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would not be admissible in a criminal prosecution in England and Wales, and that the material could not be made admissible without a full police investigation. The CPS advised the police along those lines. Whether or not the MPS institutes a full investigation in this or any other case is a matter for it to decide.
591 It may help the House to understand the provisional CPS conclusion if I explain that in European extradition proceedings it is not necessary to bring evidence before a court to show that a person has committed the offences of which he or she is accused. All that is necessary is that the court here must be satisfied that the allegations amount to an extradition crime and that the formal request complies with the requirements of the Extradition Act 1989 and the European convention on extradition of 1959. That explains why the CPS reached its provisional conclusion that, in the absence of a full investigation by the police, there was no admissible evidence for the purpose of a prosecution here.
In addition to those evidential considerations, the CPS—again in its role as independent prosecuting authority—received, in January, and with the consent of Senator Pinochet, a copy of the medical report prepared by the independent experts commissioned by the Home Secretary. The CPS has also seen representations made to the Home Secretary concerning that report.
The report and subsequent advice make it clear that Senator Pinochet's ill health is such that he would not be able to defend himself properly in any criminal prosecution brought in this country. The provisional CPS conclusion in the light of the material was that no court in England and Wales would allow a trial of Senator Pinochet to take place because of his ill health, whatever the evidence. Again, the CPS advised the police of that.
In reaching its provisional conclusions, the CPS consulted me and I agreed with them, after taking the best independent legal advice available. My right hon., noble and learned Friend the Attorney-General has not involved himself as a Law Officer in this case. He and I agreed that his previous patronage of Redress, from which he resigned on taking ministerial office in May 1997, meant that it would be more appropriate if I handled the case. The solicitors acting for Senator Pinochet were advised of that in September last year.
Following today's formal submission of the Spanish extradition papers to the CPS under article 7, the CPS has confirmed its provisional conclusions. First, the material in the possession of the CPS would not be admissible in any criminal prosecution in England and Wales, and could not provide a realistic prospect of conviction. Secondly, an investigation for which the police are responsible would be required to gather evidence admissible in this jurisdiction. Thirdly, whatever the evidence that might be available, no court in England and Wales would allow a trial of Senator Pinochet to take place in view of his ill health. I agree with those conclusions.
Accordingly, the CPS did not apply for my consent, in respect of the Spanish extradition material, to prosecute Senator Pinochet for torture. The Metropolitan police service and Senator Pinochet's lawyers were advised of the CPS's conclusions. The MPS, which has taken its own legal advice, decided not to arrest Senator Pinochet earlier today.
The House will also be aware that on 11 and 13 November and on 15 December 1998 my right hon. Friend the Home Secretary received requests for the extradition of Senator Pinochet from Switzerland, France and Belgium. Further requests were received from France on 4 February last year and from the Kingdom of Belgium on 12 October last year.
592 On 9 December 1998, my right hon. Friend decided not to issue an authority to proceed with regard to the requests from France and Switzerland. On 27 January 1999, he decided not to issue an authority to proceed with regard to the request from Belgium. On 22 February 1999 and 19 November 1999 respectively, he decided not to issue an authority to proceed in respect of the second French and second Belgian requests.
Following my right hon. Friend's decisions, the extradition papers were submitted to the CPS as the prosecuting authority under article 7. The CPS, in turn, referred the papers to the MPS to enable the investigating authorities to consider them. The CPS also advised the police that the allegations contained in the Swiss, both French and both Belgian requests did not disclose offences that could be tried here, as the conduct alleged in each of the requests occurred before the relevant legislation came into force. Accordingly, the CPS did not apply for Law Officer consent to prosecute Senator Pinochet for torture in respect of the Swiss, French and Belgian extradition material.
In performing its role under article 7 of the convention in respect of the Swiss, French and Belgian material, the CPS also took into account the medical report commissioned by my right hon. Friend and the representations made to the him about Senator Pinochet's medical condition. As I said, the CPS concluded that no court in England and Wales would permit a trial of Senator Pinochet to take place in those circumstances, whatever the evidence.
The CPS consulted me about those matters and I agree with its conclusions.
Mr. Edward Garner (Harborough)
I begin by thanking the Solicitor-General for early sight of his statement and also for the assistance of his officials this morning.
The Solicitor-General told us that the evidence provided by Spain would not be admissible in criminal proceedings in this country. When did that become apparent to the CPS? Was it made clear in any of the several hearings in the courts during the past 15 months? When were the Spanish authorities told?
If there is no prospect of conviction in this country, does it follow that there has been, and remains, no prospect of conviction in Spain, France, Belgium or Switzerland?
Does it follow from what the Solicitor-General has said about Senator Pinochet's state of health that those four European democracies would also not allow a trial to take place in their jurisdictions—and if not, why not? Certainly, that is what the Home Secretary appeared to suggest a few moments ago. I presume that the Solicitor-General has made inquiries about that matter.
When did the Solicitor-General decide to refuse leave to prosecute General Pinochet under the Criminal Justice Act 1988 and the Taking of Hostages Act 1982? When did he tell the four European states that I mentioned of that decision?
The hon. and learned Gentleman referred to an application, last week, by a third firm of solicitors for consent to prosecute Senator Pinochet in this country. Has he reached a conclusion as to whether their evidence is admissible in any of the other four European states?
593 The hon. and learned Gentleman explained the law and procedure relating to European extradition proceedings. Irrespective of that, does the Home Secretary retain a discretion not to order extradition in any given case?
There remain in existence—if only formally—habeas corpus proceedings begun on 22 October 1999. What will happen to that case?
Finally, how will the hon. and learned Gentleman persuade the House and the public that this whole affair has been worth while and not just a lawyers' bonanza?
§ The Solicitor-General
The material rolled in during the past year; it was continually assessed. At no point was it possible to say that the evidence was sufficient for a prosecution in this jurisdiction. As I explained to the House, under the extradition provisions the requesting state simply provides evidence of allegations; it does not have to provide detailed evidence.
I had no need to tell Spain, because the responsibility of the CPS was twofold. On extradition, it was acting as agent of Spain, but as an independent prosecuting authority, it was simply acting in accordance with the law of this jurisdiction.
There was no refusal on my part to prosecute. As I said in my statement, I was never asked to give consent. The CPS decided that there was no case to prosecute in relation to the code. Consequently, I did not have to make a decision.
The material received from the solicitors last week was such that it could not be used to prosecute in this jurisdiction. It contained a series of allegations—obviously serious ones—but there was no admissible evidence that could be used in court.
On habeas corpus, the point is entirely moot because the particular person has now left the jurisdiction.
§ Mr. Denzil Davies (Llanelli)
Will my hon. and learned Friend take it from me that I know nothing at all about the law and practice of extradition? Is it not true that, in criminal cases, the court usually decides whether the accused is fit to plead? Would an alternative course have been to allow General Pinochet to go to Spain and for a Spanish criminal court to decide whether he was fit to plead?
§ The Solicitor-General
That was not my decision. Inasmuch as I had responsibility for the CPS, my decision was to ensure that it acted in accordance with the current code for Crown prosecutors. In other words: was there evidence for a prosecution in this jurisdiction?
My right hon. Friend asked whether it might have been possible to decide in court on Senator Pinochet's fitness to plead. When it is quite clear—and it became quite clear after the medical reports—that no prosecution can occur, there is no way that a judge in this jurisdiction would allow a trial to begin.
§ Mr. John Burnett (Torridge and West Devon)
I am grateful to the Solicitor-General for providing me with advance notice of his statement.
594 The case has been a long one. We welcome the review of the law of extradition announced by the Home Secretary. Will the Solicitor-General tell us whether there will be widespread consultations in respect of the review, and what the role of his Department will be?
We endorse the principle that those who commit abuses of human rights in one country should never assume safety elsewhere. I should be grateful if the hon. and learned Gentleman elaborated on the following words from his statement:Whether or not the MPS institutes a full investigation in this or any other case is a matter for it to decide.Did the CPS instruct, or endeavour to instruct, the Metropolitan police to instigate such an investigation?
The length and complexity of the case emphasise the need for an International Criminal Court to try human rights cases at a supranational level. The United Kingdom Government signed a statute of the International Court in Rome in July 1998, but they have failed to ratify the ICC treaty. Will the Solicitor-General provide us with a timetable for the publication of the draft legislation to ratify the ICC treaty? When will the Government ratify that treaty?
§ The Solicitor-General
The Law Officers' Department has only a limited role in extradition, and that applies in respect of Irish extradition. We may be consulted on some of the detailed legal aspects. However, there are always lessons to be learned from such cases. One issue that I flagged up to the House last month was the role of the CPS as agent of a foreign state. In our jurisdiction, there is a clear division between the police's duty to investigate and our duty to prosecute. The CPS does not tell the police what to do.
We are committed to the International Criminal Court. I know that my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs is very keen for legislation to get on the statute book in that regard. However, I can give no timetable for it.
§ Mr. Tam Dalyell (Linlithgow)
As Chairman of the all-party Latin America group, may I ask whether Law Officers—doubtless together with Foreign and Commonwealth Office lawyers and Home Office lawyers—are considering the delicate balance of whether the operation of the law does not sometimes conflict with reconciliation? The truth is that this case has opened a Pandora's box in Chile, which was increasingly becoming a stable society. Questions should be asked as to whether legal actions on one continent will create grief in other continents. The answer is another matter, but is the question at least being reflected on?
§ The Solicitor-General
Inasmuch as I can reply to my hon. Friend's questions, I simply say as a lawyer that law does not always lead to justice, nor does it always lead to reconciliation.
§ Mr. Douglas Hogg (Sleaford and North Hykeham)
May I reinforce the point just made by the hon. Member for Linlithgow (Mr. Dalyell)? Is not a general principle involved? When a democratic state decides, as part of a political accommodation, to put its past behind it, it is not for other countries to intervene with criminal proceedings. Is that not what was done in Spain with regard to the 595 Franco regime? Is that not what we ourselves are doing in Northern Ireland, where hundreds of convicted terrorists have been let out of prison and Ministers negotiate with people who are apologists for murder? At the end, we say that that is part of a process of reconciliation. We would be very angry if, for example, the Government of Holland tried to extradite Mr. Gerry Adams or Mr. McGuinness. Surely there has to be discretion and we have to recognise the right of democratic states to put their pasts behind them without other Governments intervening.
§ The Solicitor-General
In this case, we acted purely in accordance with our international obligations and with our obligations under the law on the statute book in this country. That may have had certain repercussions, but I cannot comment on that. We simply acted in accordance with the law. I certainly take the point that reconciliation can often be very valuable.
§ Ann Clwyd (Cynon Valley)
Why have successive Attorneys-General in Britain refused to allow private or public prosecution on behalf of Pinochet's murdered British victims, William Beausire and Father Michael Woodward?
§ The Solicitor-General
As I explained earlier, the fact is that the evidence was not there. There must be evidence to provide a realistic prospect of conviction under the code of the Crown prosecutors. However, I associate myself with the remarks of my right hon. Friend the Home Secretary, who said that human rights abuses occurred in Chile and that those who suffered and their relatives feel a sense of injury.
§ Mr. Patrick Nicholls (Teignbridge)
Will the Solicitor-General confirm that, as a matter of law, if the President of China, the President of Zimbabwe or any other left-wing dictator with blood on his hands should come to this country and a warrant for extradition were received from another state, Her Majesty's Government would deal with that warrant in precisely the same way as the one for Senator Pinochet was dealt with?
§ The Solicitor-General
As I said earlier, we will act in accordance with our legal obligations. As a result of the review that my right hon. Friend the Home Secretary has initiated, those obligations may change. However, we will act in accordance with the rule of law.