Email from Attorney General’s Office to combined Picat groups-3rd August 2016

3rd August 2016

Dear Mr Manson

*Application for consent to prosecute for conspiracy to commit a war crime*

We write in response to five requests for the Attorney General’s consent
to prosecute all of which appear to have been co-ordinated by you, if
not sent directly from you. Each request seeks consent to institute
proceedings against the Secretary of State for Defence for conspiracy to
commit a war crime. Plainly a defendant could not be tried for the same
offence simultaneously in different courts and it follows that the
Attorney would not give consent to a series of simultaneous prosecutions
against the same defendant for the same offence. Given that the
applications are all made on the same basis, we intend to handle them as
a single request for consent received from multiple groups.

When deciding whether or not to grant consent, the Attorney General acts
independently of government. In the circumstances of the prosecutions
proposed, the Attorney considers first whether there is sufficient
evidence to provide a realistic prospect of conviction and then whether
a prosecution is required in the public interest. Consent requirements
exist in statute where parliament has determined that a decision by the
Attorney General is required as a condition precedent to the
institution of proceedings for a particular offence.

For the Attorney to be able reach any view about the sufficiency of
evidence, he must be provided with a clear and comprehensive explanation
by the prosecutor of what their case is. The Attorney General’s Office
does not have the facilities or powers to conduct criminal
investigations and it is not part of our role to provide legal advice to
the public. Any request for consent is considered on the basis of the
evidence provided by the prospective prosecutor.

As we noted in earlier correspondence, initially your explanation for
the basis on which it is contended that there is sufficient evidence for
the Attorney General to consent to a prosecution was a little over three
paragraphs long. On 26^th July you provided two further documents,
described as ‘Extracts’ of other legal advice documents. These fail
comprehensively to explain: the elements of the offence that you wish to
pursue; how those elements can be proved by the evidence provided; and,
how, where is it not obvious, that evidence will be admissible in a
domestic criminal court. They are plainly inadequate given the nature
and complexity of the prosecution that you seek to pursue.

Furthermore, the statement of offence and statement of particulars raise
a number of initial legal issues which, without further explanation,
immediately raise cause for concern. For example, you assert that you
intend to bring the prosecution against the corporate sole of the office
of the Secretary of State for Defence. This appears to be on the basis
of corporate liability given that in your applications you refer to the
individual office holder as the “/directing mind of the said
corporation/”. However, it is asserted on your website that:

/ /

/“//we don’t have to produce evidence about the specific state of mind
of a natural human being, but instead can rely entirely on evidence
written about the ‘official’ policies and strategies as stated as having
been adopted by the Government at one time or another, during the
relevant period, and in relation to our nuclear defence position, as
being those of this office//”**/


/ /

To prove a criminal allegation against a corporation on the basis of the
identification principle, if that is what you are purporting to do, you
do have to prove the relevant acts and state of mind of an identified
individual who is sufficiently senior to be identified as the “directing
mind”. It appears, without further explanation, that the basis on which
you seek to pursue the proposed defendant is misconceived.

Furthermore, if, as appears to be the case, the basis of the prosecution
case is a conspiracy in which the substantive offence is a war crime
committed by a UK national, resident or a person subject to UK service
jurisdiction, it is not clear why your draft charge is a conspiracy to
commit an offence under section 52(1) and not a conspiracy to commit an
offence under section 51(1). Section 51(1) has extra-territorial effect
where the war crime is committed by a UK national, resident or a person
subject to UK service jurisdiction. For section 52 to apply the act,
i.e. the alleged war crime, must have been committed outside England and
Wales and must not constitute an offence under section 51 (see section
52(2)). The explanatory notes to the legislation give the following
examples in relation to section 52:

“/For example, it is an offence under this section to incite, in England
and Wales, the commission of genocide overseas even if the perpetrators
have no connection with the UK. It would also be an offence if such
incitement took place overseas but was committed by a UK national, UK
resident or a person subject to UK Service jurisdiction/.”

If you wish to proceed with your application for consent, please ensure
that you address the issues raised above.

In addition, as we highlighted in prior correspondence, your
applications made the assertion that “/Full and further particulars will
be provided at a later stage/”. It also stated that other “/Information…
will also be provided as and when necessary/” and “/we have provided a
few signed witness statements to provide an indication of the kinds of
particulars we will be providing in much greater detail at that later
stage/”. Please confirm in your response what, if any, further material
you intend to submit and when you intend to submit it.

When giving our prior estimated period for a response we made it clear
that if you send further information or evidence there is likely to be
further delay. Plainly, you have already provided a number of further
documents and we have suggested that you may wish to provide further
information. The time it will take to provide a response, and ultimately
a decision by the Attorney General on whether or not to grant consent,
will depend upon the time it takes for you to respond and the nature and
extent of any further material that you provide.

Yours sincerely

Craig Hollands

Correspondence Unit

Attorney General’s Office
<>_ 020 7271 2492

20 Victoria Street, London SW1H 0NF