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The Lord Chancellor: I am sure that if my noble friend Lady Blatch had been here, she would have wanted to add her oral apology to the very full apology that she gave to my noble friend in writing. It was not intended to misrepresent the situation. It was a misdescription of the situation as it appeared. I accept entirely that my noble friend did not make such a statement.

It has to be said in relation to this amendment proposed by my noble and learned friend Lord Bridge of Harwich that it can only apply, if this Bill is passed and becomes law, to prosecutions which have been started before the Bill becomes law. There will not be any after the Bill becomes law in view of the provisions of Clause 1. So it would be an innovation introduced as a result of that position.

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With regard to the history of judicial review in relation to decisions to stay proceedings, my noble and learned friend Lord Bridge said that the Committee might think that the decisions taken in 1990 were surprising. I know one or two people at least who were surprised, and therefore not very surprised when this Chamber, including my noble and learned friends Lord Bridge and Lord Ackner, found that the words of the section in question prevented a review by the Divisional Court of decisions of this kind by a trial judge. We are therefore agreed that at present, under the law, no intervention is possible by any higher court in a decision of this kind unless it goes in favour of the prosecution and the review will only take place after the matter has proceeded. It may therefore be subject to appeal if there is a conviction.

I can understand the argument that there should be some form of possible appeal at that stage generally. The argument that there should be a right of appeal by the defence is usually met with the answer that, if the whole matter goes against the defence, they will have the right of appeal at the end of proceedings under the present law. But as my noble and learned friend forcefully pointed out, there is no such provision for the prosecution. Therefore one can find that the decision of a judge at first instance in relation to a prosecution generally, not just in relation to war crimes, may defeat the prosecution with no effective appeal in a situation where some may feel that the judge's decision was at least open to question.

That is a question of general importance and there is much to be said for it being considered. I should perhaps say that when the Criminal Justice Act 1987 was passed, an avenue of appeal by either side against a decision on a point of law by the trial judge in a preparatory hearing in a serious fraud case was instituted. There is therefore already a precedent of that type of appeal in a specific case.

The Committee heard the arguments of my noble and learned friend in favour of including such an appeal in the proceedings with which the Bill deals. It would be unusual to institute a new appeal to the prosecution in such a case after the case has started. However, that would be a consequence of the amendment and the general structure of the Bill.

The general matter is one on which different views may be expressed. I can see that in the future your Lordships' House may be asked to consider the matter as a general question. With regard to including it at this time, I have put the points to the Committee that occurred to us and it is for the Committee to decide what should happen to the amendments.

8.30 p.m.

Lord Bridge of Harwich: Again I am grateful to my noble and learned friend the Lord Chancellor, particularly for what occurred to me was at least a qualified welcome to my general proposition that the law needed amending in this respect, independently of what happens in war crimes trials.

In reply to the point that the amendment could only operate in relation to proceedings already instituted before the Bill became an Act of Parliament, I make two

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comments. First, I envisaged at least the possibility that, if the Bill reached the statute book, it would reach it shorn of Clause 1, which I apprehended was the provision which would be least acceptable to the other place. Secondly, there is nothing unacceptable in law to the introduction of an amendment of the law which is purely procedural and which operates retrospectively to the extent that it affects the procedure in relation to litigation which is already on foot. The fact therefore that the amendment may operate only in relation to prosecutions already instituted, is not a significant objection.

There was a point not specifically addressed by my noble and learned friend the Lord Chancellor. It was the most powerful point concerning the desirability of introducing a right of appeal in war crimes cases; that is, if it is not introduced then the position of the single

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judge, the trial judge, in having to make such a sensitive and controversial decision—whichever way he may make it—will be invidious. I beg to move.

On Question, amendment agreed to.

Clause 2, as amended agreed to.

Clause 3 [Short title and extent]:

Lord Bridge of Harwich moved Amendment No. 3:


Page 1, line 15, leave out from ("(2)") to ("only") and insert ("Sections (Jurisdiction of Crown Court) and 2 of this Act apply").

The noble and learned Lord said: Amendment No. 3 is a minor and purely consequential drafting amendment which follows from the two amendments already accepted. I beg to move.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

House resumed: Bill reported with amendments.

        House adjourned at twenty-two minutes before nine o'clock.

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