My Lords, I add my support to Amendment 1, to which I have put my name. As a former prosecutor, I do not think that the task it sets the prosecutor is likely to be all that difficult, given that it must proceed on the information available to the prosecutor at the time the decision has to be taken. It may be that the information is relatively slender at the very beginning, when he is considering whether to bring proceedings, but such as it may be, it is the information that he should take into account. If one considers the stage at which proceedings are continuing, which this clause also covers, he is likely to be in possession of a good deal more information. So I do not think that there is anything wrong in the wording of Amendment 1. The essence of it lies more in what it takes out than the simple wording of what it seeks to put in. What it takes out is the presumption. I have no difficulty with the way in which the presumption is expressed in Clause 2, but I do object to it in principle.
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The interests of justice work both ways. Of course, one must have regard to the interests of the person against whom proceedings are contemplated or are in progress. But there are the interests of the complainant, too—the victim, as the noble Lord, Lord Thomas of Gresford, reminded us. In the ordinary course, the prosecutor’s decision-taking process is even-handed, with no bias towards one way or the other. Here it is being tipped one way, without regard to what this means for the complainant on the other side. There seems no room here for any regard to be had to the gravity of the offence or its consequences, and that makes me very uneasy. It is even more troubling where the proceedings are already in progress and the question is whether they should be continued. There is no guidance here at all. As the noble Lord, Lord Thomas, said, where are the criteria? For example, does it matter how far the proceedings have got? To apply the presumption to proceedings already under way, whatever stage they have reached, seems very odd.
Then there is the effect of the presumption on our treaty obligations. I refer in particular to the torture convention, which we will come to discuss with Amendment 3. As it happens, I do not have my name down to speak in that group, although I fully support that amendment, so perhaps I can take this opportunity to say something about it briefly, as the point is relevant here too. I expressed my strong feelings in Committee about the way that the Bill as it stands runs counter to the absolute and unqualified obligation on this country under the 1987 UN convention against torture to take jurisdiction against any alleged offender found within its territory. This is an international crime from which there is no safe haven. It seems to me that the practical effect of the presumption will be
to derogate from the convention, which the convention itself does not permit. If it is applied, the member or former member of the armed services whom it is intended to benefit will have no assurance that he will be immune from prosecution in some other country which is a party to the convention. Taking a holiday in Spain, for example, could expose that person to that risk. For that to happen would be humiliating to our reputation as a county that stands by the rule of law. Agreeing to Amendment 3 would remove that objection but, as the Bill stands, it is a strong reason for objecting to the presumption.