publications

<<previous  |  index  |  next>>

XIII. United Kingdom (England and Wales)

Section 134 of the Criminal Justice Act 1988417 implements the Convention against Torture418 and authorizes courts in England and Wales to exercise universal jurisdiction over torture. Jurisdiction over certain war crimes, including grave breaches of the four Geneva Conventions419 and their first additional protocol,420 can be exercised under the Geneva Conventions Act 1957.421 Jurisdiction can only be exercised over crimes against humanity and genocide if they were committed after the coming into force of the International Criminal Court Act 2001.422

On October 16, 1998, British police, acting on a Spanish arrest warrant, arrested former Chilean dictator Augusto Pinochet in London. The Pinochet case, although not the first case to be based on universal jurisdiction in Europe, became a landmark case for universal jurisdiction.423  The first successful prosecution under universal jurisdiction laws in the UK occurred more than five years after Pinochet in July 2005, when Afghan militia leader Faryadi Zardad was convicted of acts of torture and hostage-taking that had taken place in Afghanistan in the 1990s.424  Zardad was sentenced to twenty years of imprisonment.  Several other complaints have been filed under the UK’s universal jurisdiction laws but none have yet proceeded to trial.

A. Jurisdictional Challenges

1.   Presence

Police may open an investigation regardless of the whereabouts of the accused. However, for an arrest warrant to be issued and for the suspect to be charged, the accused must either be present or his or her presence anticipated.425 A trial in absentiais possible under UK law under certain circumstances at the trial judge’s discretion.426  Charges of crimes against humanity and genocide can be prosecuted only where a suspect was a UK resident at the time at which the crime was committed.427

2.   Immunities

Sitting heads of state enjoy immunity from prosecution under section 14(1) of the State Immunity Act of 1978.428 Hence, complaints filed under UK universal jurisdiction laws against U.S. President George W. Bush and Zimbabwean President Robert Mugabe have not been investigated.429 However, immunity also seems to be extended to every sitting minister of foreign governments. In February 2004 a London court rejected an application for an arrest warrant to be issued against Israeli Defense Minister Shaul Mofaz,430 for immunity reasons, and in November 2005 a magistrate refused to issue an arrest warrant against Chinese Trade Minister Bo Xilai, arguing that as part of an official delegation to the United Kingdom, Bo Xilai would enjoy immunity.431 

An amnesty passed in the state where the crime was committed has been held not to bind UK courts, which have the discretion not to apply the amnesty law to crimes that, through treaties (such as the Convention against Torture), the UK government has committed itself to prosecuting.432

B. Practical Arrangements for the Exercise of Universal Jurisdiction in the England and Wales

1.   Special departments in charge of the investigation and prosecution of international crimes

The investigation of universal jurisdiction crimes is the responsibility of two investigators within the Anti-Terrorist Branch of the Metropolitan Police. The branch has a total staff of three hundred.  The two investigators who lead universal jurisdiction criminal investigations also investigate terrorism-related crimes due to the relative lack of universal jurisdiction investigations.433  When an investigation into a universal jurisdiction crime is opened, a team of investigators is selected from the Anti-Terrorist Branch and the investigation is then coordinated by the two investigators in charge.434 For example, in the Zardad case, two investigators coordinated the investigation from London while sending delegates from the Anti-Terrorist Branch to Afghanistan. 

The prosecution of universal jurisdiction crimes is the responsibility of the Crown Prosecution Service (CPS), which has two prosecutors in its Counter-Terrorism Department working permanently on such cases.435 Due to a lack of case volume these prosecutors also work on terrorism and other transnational crimes. This level of resourcing was considered sufficient by the investigators and prosecutors involved in the Zardad case.436 

2.   Notification

The Metropolitan Police and courts have generally been notified of the presence or anticipated presence of alleged perpetrators of international crimes by the media, victims’ lawyers or NGOs.437 For example, Zardad came to the attention of authorities through a BBC documentary,438 while the case of Israeli General Doron Almog was brought before a magistrates’ court through lawyers acting on behalf of a Palestinian human rights NGO.439

In principle the Home Office’s Immigration and Nationalization Department (IND) can also refer cases that arise through its review of asylum and immigration applications, and a special department has been established within the IND dealing exclusively with allegations of international crimes committed by applicants for UK visas and asylum seekers.  Where the departmentreceives a complaint from caseworkers within the IND, the suspect is screened and additional evidence is sought from open sources, before the department considers whether to refer the matter to the police. Since the department’s creation, twelve cases have been referred to the police,440 and this number is likely to increase once the special unit within the IND has established guidelines and screening criteria for the IND as a whole.441 Prior to the establishment of the special department, it was easier for alleged perpetrators of international crimes to gain access to the UK undetected and an unknown number of those may currently reside in the UK. The IND special department is, as far as possible, also reviewing past cases.442  In January 2006, a British newspaper discovered the presence in England of a Rwandan accused of participating in the 1994 genocide.  The suspect had been living in a small town since being granted leave to remain by the Home Office in 2002, after seeking asylum in 1999.443

3.   Decision to investigate and prosecute

The police usually decide whether to investigate a complaint without the CPS’s involvement. In cases of international crimes, however, the investigators consult the CPS for legal advice at the outset of the investigation and enquire about issues such as immunity and jurisdiction.444 The investigation itself is the responsibility of the police, and the CPS only become involved on request. Where no legal obstacles arise, the investigators consider a complaint taking into account the evidence available and the likelihood of successfully prosecuting. The guiding policy in deciding whether to investigate is to ensure that the UK does not act as a safe haven for perpetrators of international crimes.445 It would appear, however, that this is not always applied consistently. In the case concerning former Israeli General Almog, the police did not make a decision concerning the arrest of the suspect prior to his arrival in the UK, despite evidence presented by lawyers acting for victims that convinced a senior district judge to issue an arrest warrant for Almog.

The decision of whether to prosecute is largely at the CPS’s discretion. Based on the “Code for Crown Prosecutors,” the CPS takes into account the issue of jurisdiction, the amount of reliable and admissible evidence available and whether it is in the public interest to prosecute.446  Should the CPS decide to prosecute international crimes on this basis, the consent of the attorney general is required.447 The attorney general is a government-appointed official, who acts as the chief legal advisor to the government and superintends the director of public prosecutions, who is head of the CPS. The attorney general has absolute discretion over prosecutions of international crimes.448

Third parties, including those not involved in a particular crime, can file a complaint and, where the police refuse to investigate, initiate a private investigation and prosecution.449 This includes the right to apply for an arrest warrant to be issued against an alleged perpetrator whose presence can either be established or anticipated, even without the consent of the CPS or the attorney general.450 However, private prosecutions can be subrogated by the CPS, which may then choose to discontinue the prosecution. In addition, the attorney general’s consent is needed to prosecute any international crimes, and hence a private party cannot maintain a prosecution in the face of opposition by the CPS.

A complainant can seek judicial review of a police decision not to investigate, or the decision of the CPS not to prosecute.451 The High Court will consider whether the decision of the relevant authority has been reasonable and in the public interest.

4.   Investigation

a. Investigation in the UK

The police assess the evidence available, check open sources and conduct research on the complainant, the country in question and on the suspect. Once the investigation is under way, the CPS is approached where legal cooperation from other countries is required.452

b. Extraterritorial investigation

In the Zardad case, British officials went to Afghanistan on nine occasions.453 The prosecution went to Afghanistan together with the police on three occasions to ensure that statements taken from witnesses were sufficiently detailed.  The prosecution also traveled with investigators to gain an understanding of the living circumstances of the witnesses and victims in Afghanistan, in order to assess the challenges witnesses might face in court.454 In order to overcome logistical and security challenges in locating witnesses, television and radio broadcasts were used to encourage witnesses to come forward.455

C. Cooperation

1.   National cooperation

Cooperation between the police, CPS and the Home Office was necessary to facilitate the bringing of witnesses to testify in the Zardad case. Field investigations in the territorial state rely on cooperation and assistance provided through the Foreign and Commonwealth Office’s embassies and consular offices.  The Foreign and Commonwealth Office referred the investigators’ initial request for assistance to relevant authorities in the Afghan government, which subsequently contacted the British embassy in Kabul. From that time, all further requests for assistance were dealt with by the British embassy directly.456

2.   International cooperation

a. With other countries

In Zardad British authorities cooperated with U.S. military and diplomatic personnel because of the need to conduct investigations in an area of Afghanistan under the effective control of U.S. military forces. Prior to the investigation, the permission of the armed forces was obtained, and during the investigation in these areas protection was provided by U.S. military personnel.457

b. The EU Network

While the prosecution in Zardad did not make use of the Network or of Interpol, the police relied on Interpol contact points from the Netherlands and Denmark as both had experience of investigation of international crimes committed in Afghanistan. The EU Network was cited as a useful source of information and experiences.458

D. Role and Rights of Victims and Witnesses

1.   Victims—Compensation and legal representation

The victim has no locus standi in UK criminal proceedings, except for the possibility of bringing a private prosecution. However, this possibility is limited as it is expensive and not covered by legal aid, and prosecutions may be subrogated by the CPS. A substantial amount of work in the fields of universal jurisdiction is accordingly dependent on lawyers working on a pro bono basis.459  The court may make a compensation order for the victim in criminal proceedings and the victim does not have to submit an application. The court must give reasons should it not make a compensation order.460

2.   Witnesses

Witnesses are permitted to testify via video-link461 which proved to be extremely useful in the recent Zardad case. Witnesses’ testimony was shown via video-link from the British embassy in Kabul to the court room in London. Logistical challenges such as travel and accommodation arrangements as well as visa and potential asylum requests were thus avoided. However, the outcome of the first trial (the jury was unable to reach a verdict) suggests that a lack of key witnesses testifying in person may cause difficulties. By contrast, the jury in the second trial, which heard the testimony of three eyewitnesses in person, managed to successfully reach a verdict.

In Zardad, the protection of witnesses was guaranteed while they gave statements within the embassy and their identities were not publicly disclosed. At the time of writing, three months after the second trial and one year after the first, no reports of threats to witnesses had been received.462 British investigators are still in contact with a number of witnesses via local NGOs who provide most of the assistance and care to witnesses due to their access to remote areas and their presence in the country.

E. Fair Investigation and Trial

The UK has an adversarial system of criminal procedure.  In this system the defendant is largely responsible for the collection of exculpatory evidence (although prosecutors are usually obliged to disclose such evidence if they come across it).  In Zardad, the defendant was assisted by legal aid, and legal aid did extend to enabling his defense lawyer to accompany the prosecution to Afghanistan to supervise identification parades and conduct investigations.






[417] Criminal Justice Act 1988, section 134, available online at http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880033_en_1.htm (retrieved April 2006).

[418] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.

[419] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, entered into force October 21, 1950, art. 49; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, entered into force October 21, 1950, art. 49; Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force October 21, 1950, art. 129; Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force October 21, 1950, art. 146.

[420] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force December 7, 1978.

[421]Geneva Conventions Act 1957, section 1, 1A.

[422] International Criminal Court Act 2001, section 50, available online at http://www.opsi.gov.uk/ACTS/acts2001/20010017.htm (retrieved April 2006).

[423] As this report confines itself to cases after 2001, for an overview of the Pinochet case see Human Rights Watch, “The Pinochet Prosecution” (1998), [online] http://www.hrw.org/campaigns/chile98/index.htm; and Amnesty International, “Universal Jurisdiction Cases,” [online] http://web.amnesty.org/pages/uj-cases-eng (retrieved April 2006).

[424] R v. Zardad, High Court judgment of 19 July 2005, available online at http://www.redress.org/news/zardad%207%20apr%202004.pdf (retrieved April 2006). 

[425]Application for Arrest Warrant Against General Doron Almog (Bow St. Mag. Ct. Sept.10.05) (per Workman, Sr Dist.J).

[426] R v. Jones, 20 February 2002, (2002) UKHL 5.

[427] International Criminal Court Act 2001, section 51 (2) (b).

[428]  United Kingdom State Immunity Act of 1978, available online at  http://www.law.berkeley.edu/faculty/ddcaron/Documents/RPID%20Documents/rp04038.html (retrieved April 2006).

[429] Application for Arrest Warrant Against Robert Mugabe (Bow St. Mag. Ct. Jan. 14, 2004) (per Workman, Sr. Dist. J).

[430]Application for Arrest Warrant Against General Shaul Mofaz (Bow St. Mag. Ct. Feb. 12, 2004) (per Pratt, Dist. J.)

[431] Application for Arrest Warrant Against Bo Xilai (Bow St. Mag. Ct. Nov, 08,2005) (per Workman, Sr Dist.J).

[432] See the reasoning of Lords Steyn and Nichols in R v. Bow Street Magistrates Court; ex parte Pinochet (No 1), (25 Nov. 1998), [1998] 4 AllER 897 at 938 (Lord Nicholls) and 946-7 (Lord Steyn).

[433] Human Rights Watch telephone interview with British official, Metropolitan Police anti-terrorist branch, September 7, 2005.

[434]Human Rights Watch telephone interview with British official, Metropolitan Police anti-terrorist branch, November 16, 2005.

[435]  See http://www.cps.gov.uk/legal/section1/chapter_c.html#02 (retrieved April 2006).

[436] Human Rights Watch telephone interviews with British official, Crown Prosecution Service, November 2, 2005, and with British official, Metropolitan Police anti-terrorist branch, September 7, 2005.

[437]Human Rights Watch telephone interview with British official, Crown Prosecution Service, November 3, 2005.

[438] John Simpson, “How Newsnight found Zardad,” BBC News, July 18, 2005, [online] http://news.bbc.co.uk/1/hi/programmes/newsnight/4693783.stm (retrieved April 2006).

[439]For documentation of the case against Almog see http://www.hickmanandrose.co.uk/news05.html (retrieved November 30, 2005).

[440] Human Rights Watch telephone interviews with British official, Metropolitan Police anti-terrorist branch, November 16, 2005, and with an official of the UK Home Office Immigration and Nationality Directorate, November 28, 2005.

[441]Human Rights Watch telephone interview with an official of the UK Home Office Immigration and Nationality Directorate, November 28, 2005.

[442]Human Rights Watch telephone interview with an official of the UK Home Office Immigration and Nationality Directorate, November 28, 2005.

[443] Jon Swan, “Focus: Rwandan genocide suspect in Britain,” The Sunday Times (London), January 29, 2006, [online] http://www.timesonline.co.uk/article/0,,2087-2014429,00.html (retrieved February 2006). Further suspects were discovered by the media in May 2006. See Sanrda Laville, “Wanted for Genocide in Kigali. Living Comfortably in Bedford,” The Guardian, May 13, 2006.

[444]Human Rights Watch telephone interviews with British official, Metropolitan Police anti-terrorist branch, September 7, 2005, and with an official of the UK Home Office Immigration and Nationality Directorate, November 28, 2005.

[445] Human Rights Watch telephone interview with British official, November 16, 2005. 

[446]See http://www.cps.gov.uk/victims_witnesses/prosecution.html#01 The evidence available must be such as to establish a realistic prospect of conviction.

[447] Criminal Justice Act 1988, section 135; Geneva Conventions Act 1957, section 1A (3) (a); International Criminal Court Act 2001, section 53 (3).

[448]Human Rights Watch telephone interview with British official, Crown Prosecution Service, November 3, 2005. The attorney general has confirmed to Parliament that he will apply the same criteria as the CPS for any other criminal offense: first, the amount of sufficient admissible and reliable evidence establishing a realistic prospect of conviction; second, it must be in the public interest to prosecute. Written answer by the attorney general to Mr. Boateng, Parliamentary question 19 July 1993, Hansard, available online at http://www.publications.parliament.uk/pa/cm199293/cmhansrd/1993-07-19/Writtens-3.html (retrieved April 2006).  Case law suggests that the decision of the attorney general is not subject to judicial review, see R v. Solicitor-General, ex p Taylor, The Times, August 14, 1995, case no: CO 2117-94.

[449] Prosecution of Offences Act 1985, section 6 (1).

[450] Prosecution of Offences Act 1985, section 25 (2).

[451] R v. Director of Public Prosecutions, ex parte C (1995) 1 Cr.App.R 136. The court sets out three criteria for judicial review: (i) the decision was the result of some unlawful policy, (ii) the decision was made because the DPP had failed to act in accordance with the code issues pursuant to section 10 of the POA 1985, (iii) the decision was perverse. See http://www.cps.gov.uk/legal/section19/chapter_c.html#_Toc2672291 for the judicial review procedure against a decision of the CPS not to prosecute (retrieved May 2006).

[452] Human Rights Watch telephone interview with British official, Metropolitan Police anti-terrorist branch, September 7, 2005.

[453] Human Rights Watch telephone interview with British official, Metropolitan Police anti-terrorist branch, November 16, 2005.

[454] Human Rights Watch telephone interview with counsel for the prosecution in the Zardad case, November 30, 2005.

[455] Human Rights Watch telephone interview with British official, Metropolitan Police anti-terrorist branch, November 16, 2005.

[456] Human Rights Watch telephone interview with British official, Metropolitan Police anti-terrorist branch, September 7, 2005.

[457] Human Rights Watch telephone interview with British official, Metropolitan Police anti-terrorist branch, September 7, 2005.

[458] Human Rights Watch telephone interview with British official, Crown Prosecution Service, November 3, 2005.

[459] Human Rights Watch email communication from a British lawyer, November 7, 2005.

[460] Criminal Justice Act, section 104.

[461] Criminal Procedure Rules, Rule 30.1, available online at http://www.dca.gov.uk/criminal/procrules_fin/contents/rules/part_30.htm#rule30_1 (retrieved April 2006).

[462] Telephone interview with British official, Metropolitan Police anti-terrorist branch, November 16, 2005.


<<previous  |  index  |  next>>June 2006