During the afternoon of 4 October 2011, an application was made to the Director of Public Prosecutions, Keir Starmer QC, to exercise his consent pursuant to section 153 of the Police and Social Responsibility Act 2011, for a private prosecutor to apply for a warrant to arrest Ms. Tzipi Livni, the former Foreign Secretary in Israel for alleged offences relating to grave breaches of the Fourth Geneva Convention in relation to military action in Gaza in December 2008. The application was supported by a body of information, which has been supplemented by the applicant on our request in the intervening period.
All the available information has been carefully considered by senior and experienced lawyers in the Special Crime and Counter Terrorism Division of the CPS. However, no concluded view has been reached on whether there is sufficient evidence to support a realistic prospect of conviction against Ms Livni in relation to the alleged offences.
This morning a certificate issued under the authority of Her Majesty’s Principal Secretary of State and bearing today’s date has been served on the CPS stating that the Foreign and Commonwealth Office has consented to the visit to the UK of Ms. Livni on 5- 6 October 2011 as a “special mission,” and she has been received as such.
On a previous occasion the High Court of England and Wales has considered the legal effect of such a certificate. In Bat v German Federal Court and The Government of Mongolia and The Secretary of State for Foreign and Commonwealth Affairs [2011] EWCH 2029 (Admin), the High Court ruled that a “special mission” performs temporarily those functions ordinarily taken care of by a permanent diplomatic mission and that accordingly a “special mission” is afforded immunity from suit and legal process for the duration of the mission. The High Court also ruled that it is not open to a court to call into question the classification of a mission as a “special mission” by the Foreign and Commonwealth Office. The immunity attracted by those on special missions has also been recognised in a number of decisions made by District Judges.
The ruling of the High Court is binding on all magistrates’ courts. Accordingly the Director of Public Prosecutions has concluded that a Magistrates’ Court would be bound to refuse any application for the arrest of Ms Livni for the duration of this visit.
In those circumstances, the Director of Public Prosecutions has refused to give his consent to the private prosecutor to make an application to the court for an arrest warrant. In considering this application, the Director of Public Prosecutions has consulted the Attorney General, but the decision is his.
