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Lord Campbell of Alloway: I should like very briefly to support the amendment and thank the noble and learned Lord for the manner in which he explained it. It would be retrogressive if at this stage, after Pepper v. Hart, we were, for example, in a case like this to rely on ministerial utterances in place of the plain words of the statute. It would be a wrong sort of precedent to set. And in particular, as Members of the Committee know, there is a whole mass of new practice directions which have to be followed before you can rely in court upon the words of a Minister to interpret the words of a statute. That is quite right. It is quite unnecessary.

I suggest that this is a matter that was made plain at Second Reading of the Bill by my noble friend Lord Ferrers in answer to a question from me, and which was made plain again by my noble friend Lady Blatch at Second Reading. Even so, that is not the right way for the statute to be prepared. The amendment is a declaratory provision, and I hope that it will commend itself to my noble and learned friend the Lord Chancellor.

8.15 p.m.

The Lord Chancellor (Lord Mackay of Clashfern): My noble friend Lady Blatch made clear at Second Reading the Government's position in relation to this Bill. So far as the amendment of my noble and learned friend Lord Bridge is concerned, on the substance of the matter there is no dispute between my noble and learned friend Lord Bridge of Harwich and the Government. We believe that it is right that the court should have power to stay proceedings for abuse of process where there is a probability that a fair trial will not be possible having regard to the delay. In the light of the decision in the Attorney-General's Reference No. 1 of 1990, it is not necessary to show that the prosecution was in any way at fault. What has to be shown is that in all the circumstances having regard to the delay no fair trial will be possible. I believe that that is the result that my noble and learned friend would like to achieve.

It is plain, as my noble and learned friend said, that the view of the Government is that the War Crimes Act which is presently on the statute book does nothing to damage that law in relation to this class of case, and that there is therefore no impediment at present in the law to the success of an application to stay proceedings for an abuse of process on these grounds in relation to war crimes.

I will not take up the invitation that my noble and learned friend seemed to tempt me with to reopen any questions about Pepper v. Hart. I entirely agree with him that it is not a wise principle to rely on that decision, however many of my noble and learned

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friends supported it and however unique was the dissenting voice. I am sure it would be agreed on all sides that it would be better to make the matter clear. For that reason, my noble and learned friend will remember that I was of the same view as he in relation to an amendment that might have been put forward if this House had granted a Second Reading to the original Bill when it came here for the second time. However, that particular opportunity did not open to my noble and learned friend. The result is that he has taken it up now.

Our view of the matter is that this amendment is not necessary. Our view is that the substance of the amendment, leaving that point aside, is in accordance with the present law. I think I am right in saying that it is normally put on the basis that the correct procedure is to apply to stay proceedings for abuse of process. I believe that is the phrase that is usually used, although, as my noble and learned friend said, the precise phrase used is not really important; it is the substance of the matter that counts. With that point I agree.

The government position, as I said, has been explained so far as the Bill as a whole is concerned. It is a matter for the Committee what it does with this amendment. I have sought to explain the substance of the matter from the point of view of the Government.

Lord Bridge of Harwich: I am most grateful to my noble and learned friend the Lord Chancellor. I am delighted to discover that we are ad idem to the extent that we are. He may be right that the doubt as to the effect of the Act as it stands is limited or, as he would say, that there is no doubt. It seems to me that at least it is arguable the other way, and so long as it is arguable the other way a declaratory amendment of this kind to resolve any possible doubt is, in my submission, an appropriate amendment to be made.

On Question, amendment agreed to.

Clause 2 [Jurisdiction of the Court of Appeal]:

Lord Bridge of Harwich moved Amendment No. 2:

Page 1, line 8, leave out from ("on") to the end of line 12 and insert ("any ground referred to in section (Jurisdiction of Crown Court) above an appeal shall lie to the Court of Appeal (Criminal Division) from the decision of the Crown Court granting or refusing the application.").

The noble and learned Lord said: In moving this amendment I make clear, as is apparent on the face of the amendment, that its effect is to render a decision by the trial judge in a Crown Court either to grant or to refuse an application to stay—I use that phrase because I cordially agree with my noble and learned friend the Lord Chancellor that it is the commonly used phrase, although it has the same effect as an order to quash—a prosecution on the ground of delay amounting to an abuse of process. The effect of the amendment is that such a decision would be open to the Court of Appeal. It was thought—indeed it was believed to be the law at the time when the War Crimes Act was passed—that such a decision was open to judicial review.

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That proposition was advanced in the course of the debate on the Second Reading of this Bill by the noble Baroness, Lady Blatch. I ventured to question it and she was good enough subsequently to concede in correspondence that the view had become out of date. The judicial review of a decision by a Crown Court judge is subject to Section 29(3) of the Supreme Court Act 1981, which precludes any judicial review of a decision made by a Crown Court in exercise of its jurisdiction

    "in matters relating to trial on indictment".

Unfortunately, over the years the courts have taken different views as to the effect of that provision. In the case decided in 1991 by the Queen's Bench Divisional Court —surprisingly, the Committee may think—the conclusion was reached that an order staying proceedings on indictment on the ground that they amounted to an abuse of process was subject to judicial review on the basis that such a decision was not in the matter relating to trial on indictment.

I shall not take up the Committee's time in attempting to expound the reasoning which led to that decision. At all events, two years later, in 1993, the matter came before your Lordships' House in its judicial capacity. In a decision to which I was party, in a case called Ashton, we felt obliged to decide, because the language was so clear, that a decision whether or not a trial on indictment should be permitted to proceed was manifestly a decision in a matter relating to trial on indictment. So the decision in Randle was reversed and an order of a Crown Court is no longer subject to judicial review. Although we felt constrained by the statutory language to reach that conclusion, the result has always seemed to me to be a very unhappy one.

A decision whether or not the prosecution should proceed when it is very stale and when an application for stay on the grounds of abuse of process has been made is a difficult one. As I understand it, it is a decision partly of law and partly of discretion. It is a decision in which a judge may clearly err, and some judges have erred in the past. Not only, in my view, is it desirable—as a matter of general law, quite independently of war crimes trials—that the law should be amended so as to render such a decision subject either to review or appeal in a case where an application to stay has been refused, to avoid what may turn out to be a long, expensive and quite unnecessary trial, it is perhaps even more desirable that the prosecution should be able to appeal against the wrongful grant of stay when, if the stay has been wrongfully granted, the defendant will wrongly and unjustly escape the prosecution altogether. But if that amendment to the law is desirable in general, which is the view that I would commend, it is still more particularly desirable—indeed, I would say essential—in war crimes cases.

If a prosecution under the Act of 1991 is ever brought, it will be because the Attorney-General has authorised it and has taken the view that a fair trial is possible. The defence is almost bound to apply to have it stayed and to contend that a fair trial is not possible. The decision is likely to attract great public

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interest and to be a highly controversial and sensitive one. In my submission, it would not be right that the burden and responsibility of pronouncing the last word in such circumstances on the question of whether or not the prosecution should go ahead should rest with a single judge. It would be right that it should be subject to an appeal to the Court of Appeal (Criminal Division). As I said, that is what this amendment would effect. I beg to move.

Lord Campbell of Alloway: Again, I shall be extremely brief. This amendment is the only provision in this Bill or in the master Act which does anything to mitigate the backlash factor, to which the right reverend Prelate the Bishop of St. Albans, whom I see in his place, has referred. It is a matter of which I have no personal knowledge. But it is a matter to which the right reverend Prelate is able to speak from his own personal experience. What it will mean to have an expensive, costly, lengthy trial with the inevitably emotive overtones, all to no good—but one could not say that; rather, all to the bad, the bad of the trouble and tensions that it arouses for no good purpose. That is the main reason why I support the amendment.

As I am addressing the Committee, perhaps I may deal with a serious misunderstanding that arose—I have given notice that I would raise this matter—between the Home Office and myself on Clause 2. After Clause 2 was considered at Second Reading, the Home Office wrote (the letters are in the Library):

    "Alan Campbell argued that it was needed because, in his view, such prosecutions should never be brought in the first place".

I did not so argue. I have never argued that prosecutions should never be brought in the first place. The letter goes on:

    "My response to Alan's point is simply that I do not accept his general proposition that war crimes prosecutions should never be brought".

I have never on this Bill or any other Bill in any other circumstances ever made such a proposition or so argued. I asked for an unqualified retraction and apology, which has been given. I am content to accept that it was not intended to state in this letter what was so plainly stated. I am obliged to the Chamber for allowing me to correct the record.

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