§ Lord Campbell of Alloway asked Her Majesty's Government:
§ Whether the Attorney-General, having consented to the institution of proceedings under Section 1(3) of the War Crimes Act 1991, will consider, before committal for trial, fitness to plead and delay relevant to abuse of process, with a view to exercising his discretion to enter a nolle prosequi.
§ The Lord Chancellor (Lord Mackay of Clashfern)My Lords, the power to direct the entry of a nolle prosequi only relates to cases proceeding on indictment, that is, already committed for trial. I understand that the Attorney-General would expect to take account of any available medical evidence when deciding whether to consent to the bringing of proceedings under the War Crimes Act 1991 and in the Serafinowicz case did offer the defendant an opportunity to submit any such evidence, and kept this aspect together with the evidence generally under close review.
§ Lord Campbell of AllowayMy Lords, I thank my noble and learned friend for his reply. Does he agree that these preliminary objections for trial will inevitably be taken in all these cases and that Mr. Attorney, when he gives his consent to the institution of proceedings, has absolutely no means of knowing the substance of the objections? If so, before protracted committal proceedings, would it be appropriate for there to be some form of ex officio appraisal of consent to prosecute in the light of available evidence, at all events in such cases where the accused is about 85 and suffering from advanced Alzheimer's?
§ The Lord ChancellorMy Lords, the Attorney-General takes account of all the material available to him at the stage when he agrees to consent for prosecution in these cases. In the particular case to which reference was made, the Attorney-General had regard to all the evidence and information available at the time when he granted his consent. At the time the Attorney caused an inquiry to be made of those representing the defendant whether there was any medical bar to a prosecution and in particular whether the defendant wished to make any representations to the Law Officers concerning his health, mental or physical. No representations were forthcoming.
So far as concerns the other matters preliminary to trial, they were argued before the judge and the judge agreed that the case should go forward to trial, first, of course, on the question of the accused's fitness to plead.
§ Lord ActonMy Lords, is the noble and learned Lord aware that the Hetherington-Chalmers inquiry which led 1430 to the War Crimes Act made the key finding in paragraphs 9.10 and 9.50 that there were three cases with a realistic prospect of a conviction? Is he further aware that the noble Earl, Lord Ferrers, wrote to me on 11th March 1994 to say that one of those cases had been abandoned because of a lack of evidence and a second case had been abandoned because the person had died? As The Times of 18th January reported that the Serafinowicz case was the third of those cases, has not the underpinning of the Hetherington-Chalmers Report now collapsed?
§ The Lord ChancellorMy Lords, the Hetherington-Chalmers Report was based on information available at the time it was made and matters move on. The Act under which these prosecutions were taken was the basis on which the Attorney-General acted in this particular case.