Reporting and opinion by Mathew Carr (with Jon Fuller)

June 6-7, 2023 — LONDON — The Metropolitan Police of London, UK, has substantially tightened its position on investigating the country’s prime ministers over whether they should face criminal proceedings over their expansion of the use of fossil fuels.

I doubt you’ll see current PM Rishi Sunak in the dock anytime soon. Yet, compare and contrast the force’s response in 2019 vs one in April 2023.

The following documents are provided by Jon Fuller, an activist for environment group Climate Genocide Act Now.

He’s been seeking to get the last five prime ministers tried for crimes against humanity (and other things) under the International Criminal Court.

Under international law, a person can potentially be tried as an “international murderer” if they engaged in behavior knowing that that behavior causes or will probably cause death via global heating and climate damage.

Because there does not need to be direct intent to cause death, the notion politicians (and others) could fall foul of is called “oblique intent” to cause death. For more see this.

Hapless Oil Execs, Enablers, Politicians Could Be Taken Down on Climate by International Criminal Court (4)

While we all know using fossil fuels potentially will help cause death and so that makes criminals of pretty much every one of us, Fuller seeks to show it’s the expansion of fossil-fuel industries — even sectors that rely on the fuels such as aviation — that is a wrongdoing, unless those industries compensate in other ways by removing greenhouse gas from the atmosphere or cutting emissions elsewhere.

He’s having some success, but he’s not quite winning, at least not yet.

This from a previously unpublished letter to Fuller dated April 25, 2023 and completely reproduced below.

“SO15 [the Met unit that investigates crimes against humanity among other things] has taken a lawful and proper approach to your request for a criminal investigation; your most  recent letter does not change that position. 

Fundamentally, I am instructed there is no realistic prospect of gathering admissible evidence  which: 

(1) Would establish (for the crime of genocide) an intent by any of the individuals you cite that  they intended to destroy, in whole or in part a national, ethnical, racial or religious group, as  such. Nothing you have cited indicates that any of the individuals named have formed this  intent. 

(2) Would establish (for crimes against humanity) that UK government policies were committed  as part of a widespread or systematic attack directed against a civilian population.

Requisite criminal standard

(3) Could prove to the requisite criminal standard a chain of causation between UK government  policies and deaths of particular individuals. To prove that admissible evidence would have  to establish that a particular set of government policies, attributable to one or more of the individuals listed as suspects, more than minimally contributed to particular deaths. Unlike  in every other case of genocide or crimes against humanity, none of the policies you cite are  targeted at achieving deaths or other crimes against humanity. Your repeated reference to  the UK’s historical global emissions underlines rather than answers the problems of proving causation in this matter.  

Moreover, it is plain that part of the allegations depend upon a suggestion that the democratically  elected government ought to have negotiated different international treaties or should have imposed  different laws. The negotiation of international treaties is an exercise of the Crown prerogative and  evidence that Prime Ministers ought to or could have negotiated or ratified different international  treaties is likely to be inadmissible (DPP v Chandler [1964] AC 763). The laws of England and  Wales are those which the Metropolitan Police is under a duty to uphold.  

The accusation that the Metropolitan Police has taken a partisan approach is wholly rejected. You  state in your letter ‘if the most senior UK ministers know they will go on trial and may be  committed to prison, the UK and other ICC signatory states will feel compelled to abandon the  policies’. The role of the Metropolitan Police is not to start investigations to try to change the  policies of the democratically elected government.“

Here below is the letter, in full.

The letter is dramatically more detailed than the letter sent to Fuller in 2019, which was fairly dismissive:

The increase in the details of reasons why the force won’t take the case forward is clear evidence that the Met is now taking Fuller more seriously than it did in 2019.

It’s telling to me that in its response to me (see below), it ignored the 2019 letter and referred to 2020. This indicates it knows now that that the 2019 letter was overly dismissive. Or, in other words, bad policing work.

As in many things legal, it’s what isn’t said that is most important.

Even in the most recent letter, the Met completely ignores the notion of oblique intent, which indicates the Met knows they are “nailed” on this matter, Fuller said. It’s just a matter of time.

I too tried to get the police to answer questions on Fuller’s campaign and oblique intent, with limited results so far.

“We can confirm that the Met Police War Crimes Team [which includes investigators of crimes against humanity] received a referral in January 2020 containing allegations of Crimes against Humanity and Genocide linked to climate change.

Matter won’t be investigated further

“The referral was assessed in accordance with the Crown Prosecution Service referral guidelines for war crimes and crimes against humanity. Following this assessment, a decision was made that the matter will not be investigated further.

“A further referral relating to the same matter was received in October 2022 and this was again assessed and a decision made that the matter will not be investigated further.

“The referring party of these allegations [Fuller] has been contacted and updated as to the outcome in relation to both referrals.”

These were my questions:

“Dear Met Police press officers,

I’m a reporter about to publish a story about the Met Police’s apparent refusal over about four years to investigate whether senior UK politicians are causing death and breaching international criminal law by expanding the number of projects that boost emissions that trap heat in the atmosphere — worsening climate change.

I attach a letter apparently from Glenn Bacon, now Detective Superintendent (checking that is a real name or a code name and that the document is genuine) …so you know the case to which I’m referring.

Have you approached the International Criminal Court on whether the matter should be investigated? Have you approached that court on whether the notion of oblique intent (to cause death) applies in this matter? If not why not (on both counts)?

Is the fact that you decline to investigate related to the allegations that the Met Police is institutionally racist (and most of those dying from climate change have brown skin and are in far-flung countries, including small children)? Why won’t you investigate?

Is it true that the Met Police’s behavior amounts to perverting the course of justice because those being convicted over climate protests would not have needed to protest had the Met Police done its job properly in 2019? If not, why not?

Is Director of Legal Services Steven Bramley CBE available for a interview, or not? (cc Tilly Snow)”

Under Crown Prosecution Service guidelines, SO15 should have undertaken a “scoping exercise”. See this:

“The crime of genocide, crimes against humanity and war crimes present a range of challenges for investigators. Their factual complexity leads to unique challenges for investigators, many of which are exacerbated by the fact that investigations to collect evidence, familiarise themselves with crime scenes, or conduct witness interviews may often need to be conducted outside this jurisdiction.

As a result when a referral is received, the SO15 investigative team will need to conduct a scoping exercise in order to make an informed decision whether to conduct an investigation. SO15 will, where appropriate, consult with partner agencies during this process. All operational scoping decisions will be made by SO15 and will not necessarily be shared with the referral body.”

I asked if and when such a scoping exercise was undertaken. I’ll let you know the response, if any.

What is very clear already is that the Met is reluctant to engage in a public debate on oblique intent. In matters of law, this signals they know it is a weakness in their position, I contend.

That is why politicians everywhere need to be worried that their behavior is potentially criminal, as do other fossil-fuel expansionists.

What is also clear is that culpability for death rises as you benefit financially from it, and Britain was the first country to start benefiting from fossil fuels about 200 years ago. It made the country rich.

And in case you think this story is about giving the ruling Conservative government a hard time. It isn’t. Former Labour PMs Gordon Brown and Tony Blair (and others) could ultimately be found to be climate criminals, too. It depends how the courts end up measuring it.

Check out this section of the wider code for Crown Prosecutors:

I would argue it’s the expansion of fossil fuel production sites that’s a special criminal activity because of the carbon budget implied in the Paris climate deal struck in 2015 — and that the International Criminal Court-overseen law in particular in conjunction with Paris may help prod a shift in government policy toward ending new oil, natural gas and coal projects, and not just in Britain. In other words, the criminality probably expands once a country has used more than its fair share of the global carbon budget implied by Paris.

Most OECD nations are in this category.

Fuller says any fossil-fuel expansion will probably ultimately be seen as criminal, especially if those increased emissions are in a country that has used up more than a fair share of space in the atmosphere for heat-trapping gas.

“It’s all about the consequence of your behavior,” Fuller said. “This is never going to go away.”

NOTES

How many dying? World Health Organisation