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War Crimes (Supplementary Provisions) Bill [H.L.]

7.55 p.m.

Lord Campbell of Alloway: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Campbell of Alloway.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE LORD SKELMERSDALE IN THE CHAIR.]

Clause 1 [Limitation]:

On Question, Whether Clause 1 shall stand part of the Bill?

The Earl of Harrowby: I was one of the people who voted in your Lordships' House against the Bill proceeding. Since then I have had an experience which I should like to explain briefly to the Committee.

Throughout most of the war I was in the Stoke City Field Regiment. However, I was too busy after the war ever to attend its reunions. When I retired three years ago, I attended a reunion for the first time. Despite an attendance of perhaps 150 ex-members of the regiment, I recognised not one of them after that 50 year gap. I believe that that exemplifies why noble Lords were so unhappy with the concept of the original Bill.

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It is interesting to speculate on why noble Lords' opinion was not accepted in another place. I believe that the reasons were two-fold. First, noble Lords have a greater spread of age; and that is an advantage. The spread is less concentrated in middle age than in another place. Secondly, noble Lords can exercise a more objective view without having to look over their shoulders. I trust that my noble friend's initiative regarding the Bill will receive a happier reception from another place than it received on the last occasion.

Lord Simon of Glaisdale: I, too, voted against the Second Reading of the Bill and spoke previously when the matter was debated on the Hetherington-Chalmers report. The question now is: what shall we do with the Bill? It seems to me that the desirable course is for the Attorney-General to follow the course that has been taken by the noble and learned Lord the Lord Advocate and simply drop the proceedings. Indeed, it would be anomalous if a different legal regime were instituted in this country from that in Scotland.

I had three reasons for opposing the Bill. First, in reality it was retrospective legislation, although not according to the rules which apply to statutory construction and which are not really relevant here. Secondly—it is a point which has been referred to by the noble Earl—I referred to the difficulties of identification and the consequence that it would be impossible to vouchsafe a fair trial to whoever was brought to trial.

However, I believe that there is a third reason. I refer to the danger of a backlash if the prosecutions proceed. We had warning of that as early as the Hetherington-Chalmers report. When those two public servants were holding a press conference and discussion the other side of Parliament Square, the British National Party, full of anti-semitism and xenophobia, was demonstrating against what was proposed. It seems to me that if the prosecutions go ahead there is a real danger of extremist parties cashing in in that way.

The question is: what is the easiest way to facilitate the Attorney-General taking the course which I suggested? It is rather like the rustic who was asked the way to Little Kirkhampton. He said: "If I were going to Little Kirkhampton, I would not start from here." If we want to arrive at the consummation which appeals overwhelmingly to the Committee, we would not start from where we are now. In my view, the best thing is to give the noble Lord, Lord Campbell of Alloway, his Bill here. I venture to suggest that it should then be dropped before it gets to the other place. If there were a challenge between the two Chambers, it would be difficult for the Attorney-General to take the course I have ventured to propose.

Lord Campbell of Alloway: I am grateful to my noble friend Lord Harrowby and the noble and learned Lord, Lord Simon. In my mind, there is no question or intention of there being any confrontation with another place. I am grateful to both speakers for what they said about the War Crimes Act and for their

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support for the Bill. I would be grateful if Mr. Attorney were to say, "There will be no prosecutions". If there are to be no prosecutions, there is no need for the Bill. I am the last person in the world to seek to bring pressure in that direction. At the moment, however, for the reasons I gave at Second Reading and shall not repeat, I have no option but to proceed. I commend the clause.

Clause 1 agreed to.

Lord Bridge of Harwich moved Amendment No. 1:


After Clause 1, insert the following new clause:

("Jurisdiction of Crown Court

. For the avoidance of doubt it is hereby declared that on any prosecution for an offence under the War Crimes Act 1991 the Crown Court has jurisdiction to quash the indictment on the ground that, in the circumstances of the case, the lapse of time from the date when the offence was alleged to have been committed to the date when the prosecution was instituted—
(a) is likely to cause substantial prejudice to the defendant in the conduct of his defence; or
(b) is likely to make a fair trial impossible.").

The noble and learned Lord said: In moving this amendment, I wish to make clear at the outset something that is self-evident anyway. The proposed new clause and Clause 2 as I propose to amend it are wholly independent of Clause 1. They have utility of necessity only so long as the jurisdiction to prosecute offenders for alleged offences, by virtue of the jurisdiction conferred by the War Crimes Act 1991, remains in existence and so long as there is still a prospect that that jurisdiction will be invoked.

I commend the amendment on the premise—and for present purposes I accept it—that it is at least theoretically possible in some cases to have a fair trial of a person who is charged with an offence, notwithstanding that more than 50 years have elapsed since the date when the offence is alleged to have been committed. However, if that is possible in some cases—and I venture to hope that no one will dispute the proposition—it will be manifestly impossible in others. Perhaps that will be so in the great majority of cases.

If a distinction is to be made between those cases which can fairly be tried and those which cannot, it will have to be made by the judiciary. If this House had done as I urged it to do when the War Crimes Bill came before it for the second time and had given the Bill a Second Reading, I should have thought it appropriate then to move an amendment to the same effect as that which I now propose. This is the most important amendment that I hoped to have the opportunity to propose then. Now the Bill proposed by my noble friend Lord Campbell presents at least the theoretical opportunity—I do not know that it is any more than that—for the omission to be remedied.

The amendment makes clear the scope of the court's jurisdiction, on a prosecution under the War Crimes Act 1991, to stay the proceedings on the ground of prejudice by delay. As the 1991 Act stands, there seems real doubt as to the scope of the jurisdiction. In the absence of any statutory period of limitation applying to prosecutions on indictment, the

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citizen's safeguard against stay of prosecutions rests in the discretion of the court to stay a prosecution on indictment, to quash the indictment, halt the proceedings—whatever phrase one uses does not matter—on the ground that the accused has been so prejudiced by delay that the matter should not proceed. The other side of the coin is that it is not possible to have a fair trial.

The normal ground on which such an application of common law proceeds is that of prejudice by delay. But, as I understand the law, it is also necessary to show to some extent that the prosecution bears responsibility for that delay. To take an obvious illustration, if a murder victim has been so successfully buried in a hidden place that the crime does not come to light until more than 20 years later, the court would give short shrift to an application on behalf of the defence for a stay of proceedings on the ground that he had been prejudiced by the delay in bringing the prosecution.

My real concern about the operation of the 1991 Act as it stands is that the court may be invited to say—and it is an arguable proposition—that since there was no jurisdiction to bring a prosecution for any of the crimes before the 1991 Act reached the statute book, the prosecution is in no way at fault in having failed to bring the prosecution earlier. Therefore, the delay prior to the date when the Act came into force should be disregarded. The sole purpose of the amendment—and it is purely a declaratory amendment—is to remove that doubt, to make it clear that such an argument is not acceptable. It is to make it clear that the whole period of delay from the date when the offence is alleged to have been committed is to be taken into account by the court in deciding whether it has substantially prejudiced the defence and rendered a fair trial impossible. That was the view of the effect of the statute which was commended to the House on behalf of the Government when the Bill was first introduced. In moving the Second Reading of the War Crimes Bill on 4th June 1990, in reply to a point that was made by my noble friend Lord Campbell, the noble Earl, Lord Ferrers, said:


    "I would only remind him of this: under the law as it stands, it is possible for the defence to apply to have a charge dismissed on the ground that the length of time which has elapsed since the offence occurred has made it impossible for the accused to be able to gather together the evidence which he needs for his defence and thereby be sure of obtaining a fair trial. There is nothing in the Bill which alters that position in any way. It will remain open to the judge to prevent a case from proceeding if he believes that a fair trial will be impossible".—[Official Report, 4/6/90; col. 1085.]

I know that as the law stands now—it was not so when the noble Earl, Lord Ferrers, pronounced those words—by virtue of the decision of this place in the case of Pepper v. Hart (a decision in which, as I recall, there was only one dissenting voice) the court may now resort to Hansard as a means of resolving any uncertainty as to Parliament's intention in enacting a particular statute. My submission to the Committee is that it clearly cannot be right in principle to rely

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on reference to Hansard, even if it is possible, to clarify an uncertainty. The proper course is that the statute should declare clearly and unambiguously on its face the intention of Parliament as to the scope of the jurisdiction that it confers upon the court. That is precisely what this amendment sets out to do. I beg to move.


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