§ 6.11 p.m.
§ Lord Campbell of Alloway
My Lords, I beg to move that this Bill be now read a second time.
The purpose of the Bill is to afford a fair administration of justice in the context of the War Crimes Act in two distinct ways which are not mutually dependent, so each requires separate consideration. The Bill does not amend any provisions of the Act and to some extent, Clause 1 reflects the sense of urgency as regards implementation of the Act, as appears from the Official Reports to have been the understanding of another place.
If this Bill is given a Second Reading and reaches another place, there would be a long period of time before it could ever receive Royal Assent during which investigations could be ended. A decision could be made as to whether to charge or exclude on the available evidence. Only on the passing of the Act would the limitation provisions of Clause 1 bite. Proceedings instituted before that date would not be affected in any way.
Clause 2 imports from Scotland a pre-trial appellate procedure on which I took advice from the noble and learned Lords, Lord Jauncey of Tullichettle and Lord Morton of Shuna. That is with regard to applications to quash the indictment on grounds of delay. The reason for its introduction is to avoid abortive trials which should not have taken place, because in England those trials must take place as there is no appellate jurisdiction until after conviction.
The Bill has the support of many noble and learned Lords to whom I have spoken informally, including the noble and learned Lord the Lord Chief Justice, who are not able to attend. The right reverend Prelate the Bishop of St. Albans, whose annual meeting is taking place at this very moment, has written to say that he wishes well for these laudable efforts on an important moral and legal issue.
Let it be said at the outset with respect to the memory of millions who suffered, some of whom are still suffering, that it is proven beyond doubt that mass murders were perpetrated—a policy of extermination—by the Third German Reich to the everlasting shame of all mankind. But since the War Crimes Act received Royal Assent on 9th May 1991, no charges have been made. And even today, it is not known whether and 972 indeed, if so, when the continuing investigations may end or whether any charges will be made. Already one-third of the suspects interrogated have died.
When the War Crimes Bill was before another place, there was an air of urgency, of resolve, to implement the recommendations of Part I of the Hetherington-Chalmers Report on the basis of the evidence of 301 case files and other material in Part II of that report which was not disclosed in either House. But another place was permitted to labour under a crucial misunderstanding, a crucial misapprehension, which was repeated in your Lordships' House by my noble friend Lord Waddington, that on that evidence, which the noble Lord said that he had read, those trials were warranted and so would ensue with dispatch.
There was no sufficient evidence on which to charge anyone. Another place, in good faith, had to take for granted the supposed quality and cogency of that evidence in Part II to avoid prejudicing a fair trial in impending proceedings, and did so. Even today, there is no sufficient evidence on which to charge anyone and as yet, the Crown Prosecution Service has not even decided whether to seek the consent of Mr. Attorney to institute proceedings in any single case.
It was never envisaged by another place that a delay of that order could possibly arise; that 15 of the 301 people who have been under investigation since 1988 would still be under investigation today; that new investigations would have been initiated as late as March this year; that by today, a decision as to whether or not to prosecute would not have been taken in all cases; and that by now, those trials would not have been either instituted or concluded.
Indeed, on the contrary, it was common ground among all Members of both Houses that if those trials were to ensue, they must be fair trials in accordance with our concepts of justice. Each year of delay infects the prospects of a fair trial as prejudicial to the defence: especially so where the alleged conduct took place so very long ago and the crucial issue is one of identity.
Clause 1 proposes a time limit on the institution of proceedings. Why so? That is because the Crown Prosecution Service, having received substantive reports from the police on which charges could not be laid, remitted the matter to the police for further investigation. Both my noble friend Lord Ferrers and my noble and learned friend the Lord Chancellor have informed your Lordships' House that the end of those investigations cannot be predicted. It is also because in Scotland, all were excluded from prosecution before 27th June 1994 in exactly the same circumstances in which the Crown Prosecution Service remitted the matter to the police for further investigation. A disparate regime for exclusion on either side of the Border, operating under the same statute, all but beggars belief.
Your Lordships may well think that the only fair and just approach was that adopted by the noble and learned Lord the Lord Advocate, which was explained in a Written Answer on 11th July of this year. It read:After extensive enquiries in the United Kingdom and overseas, Crown Counsel decided that there was not sufficient available evidence for a criminal prosecution in any of the cases".—[Official Report, 11/7/94; col. WA 93.]973 The book was closed in Scotland by the noble and learned Lord the Lord Advocate on that basis before 27th July, yet the Crown Prosecution Service continues investigations on the same basis, the end of which, the Government take the view, cannot be predicted.
The purpose of Clause 2 is to remove the disparity of procedure in an act of general application and to introduce in England and Wales and in Northern Ireland the appellate procedure as it existed for many years in Scotland. The justification is to avoid a long, complex and costly trial with unusually emotive overtones conducted so long after the event which should not have taken place, and to avoid the "backlash" factor to which the right reverend Prelate the Bishop of St. Albans referred on Second Reading of the Bill. In all those cases, it is inevitable that an application will be made to the court to quash the indictment on grounds of delay, as being prejudicial to a fair trial.
As to the present position and the attitude of government, noble Lords will be grateful to my noble friend the Minister for what she said on 28th November this year (at col. 473 of Hansard). There are now 24 men who have been candidates for prosecution since before 27th June 1994. As I have mentioned, 15 of them have been under investigation since 1988; three since July 1991; and the rest since February, April and December 1993 and January and March 1994 respectively. Of the 369 suspects investigated, 233 have been excluded and 112 have died.
What is the attitude of government? Parliament has had its say. There is no limitation period for murder at common law, so none will be introduced. The continuance of those investigations, whatever delay may be involved, is entirely a matter for the Crown Prosecution Service and must be left to the CPS. It is a matter for the courts to decide whether to quash the indictment on grounds of delay as from 1st September 1939 up to and including the date of trial, or on grounds of abuse of process.
As to Parliament having had its say, having read the Official Reports, perhaps I may say with great respect to my noble friend Lord Tonypandy and to my noble friend the Minister that, on any objective analysis, Parliament has not had its say on either of the procedural matters, the subject of this Bill, which were neither envisaged nor discussed in either House.
There is of course no period of limitation at common law; we know that. But the common law was introduced by a statute with retrospective effect as from 1st September 1939 over persons who owed no allegiance and to whom the common law did not apply. It was a unique and wholly exceptional assumption of retroactive extra-territorial jurisdiction which may no longer be questioned. But your Lordships may well think that some form of control, some form of limitation, is called for in those exceptional circumstances where investigations continue, the end of which cannot be predicted.
Investigations to gather up evidence against a set of octogenarians, some 50 or 60 years after the alleged event, has little to do with my personal concept of the fair administration of justice.
974 As regards leaving matters to the Crown Prosecution Service, perhaps enough has been said about the disparate regime operating either side of the Border and about the continuance of the unpredictable delay under the aegis of the CPS which the Government are apparently prepared to countenance. This is not the occasion upon which to consider the judgment, efficiency or competence of the CPS, either generally or in context with this affair in which, perhaps, it may speak for itself. But if the Government are prepared to leave the matter in the hands of the Crown Prosecution Service without any control over continuing delay, then surely a case is made out for some limitation on the institution of proceedings.
Moved, That the Bill be now read a second time.—(Lord Campbell of Alloway.)
§ 6.26 p.m.
§ Lord Merlyn-Rees
My Lords, I should, first, declare an interest in the matter of war crimes as chairman for many years of the all-party group on war crimes. I am glad to say that we played a part in getting the Hetherington-Chalmers Report published. We also played some part, along with my colleagues in another place, in getting an overwhelming vote in favour of the War Crimes Bill when it appeared before that place. It is my view that if today's Bill were to get to the other place—although I do not believe that it will—it would be overwhelmingly defeated.
I have been two years in your Lordships' House and I am second to none in my appreciation of the role of this place as a revising Chamber. Very often the quality of debates here is far better than those in another place. The purpose of the Bill now before us is to overturn the Act which was passed overwhelmingly in the other place; indeed, it would nullify it. I should like to argue the case for leaving things as they are.
Even if the effect of the Bill were not to nullify the Act, as came out in the discussion that we had during Question Time recently it is not the role of Home Office Ministers to interfere in any way with the police through their War Crimes Unit. The police are independent. The glory of the police—sometimes it is not so; indeed, it never used to happen in Northern Ireland where the police were the creatures of the state—is that they are independent when they are investigating crimes. The Home Office is quite clear on that fact. There have been one or two occasions in recent years when I believed, with no knowledge perhaps, that there had been an overstepping of the mark in that respect. The independence of the Crown Prosecution Service and of the War Crimes Unit is, I believe, most important.
However, that is not to say that one cannot ask questions. Nevertheless, it is not the job of the Home Office to hasten progress and ask, "What are you doing about this?", or say, "Drop that, and do something else". It must be a matter for the independence of the police. I was going to crack a joke, but this is the wrong place for doing so.
As regards my own role as Home Secretary, I often used to reflect on the fact that Winston Churchill said, "Never make a lawyer a Home Secretary." I believe that he had in mind Sir John Simon. The obverse of that 975 remark, of course, is that it does not mean that if you are not a lawyer you would be a good Home Secretary. I believe that sometimes judgment has to take over from the detail of the matter—it can be left to other people.
There is no need for me to rehearse the facts that led to the Act of Parliament, and its antecedents in the Hetherington-Chalmers Report. The report came to a conclusion which I mentioned during the first reading of the Act in another place. I shall not quote the whole thing again, just the following sentences:The cases we have investigated disclose horrific instances of mass murders, and we do not consider that the lapse of time since the offences were committed, or the age of the offenders, provide sufficient reason for taking no action in such cases. We therefore recommend that some action should be taken in each case in which the evidence is adequate".—[Official Report, Commons, 12/12/89; col. 886.]I shall return to that point. When I quoted those sentences in another place Mr. Edward Heath interrupted me and asked if I would read on. He was being helpful. I said that I would willingly do so and continued, at col. 886:In paragraph 9.18 we describe possible courses of action. We do not recommend deprivation of citizenship and deportation".That would have constituted another way of dealing with this matter. The noble and learned Lord, Lord Hailsham, discussed this matter in this place. The people we are talking about had entered this country too easily at the time of a Labour Government, which I supported as an ex-serviceman. I had been active in the Labour Party as a kid before the war. People entered this country from Italy —a country I know well—and from Austria too easily. That situation was badly handled. People were not checked. One course of action is not to accuse these people of war crimes but to say that they did not tell the truth when they filled in the forms at the time they entered this country as cheap labour in 1945 and 1946. The young men of South Wales and Yorkshire did not work in the pits at that time because of all the cheap labour entering the country. Many of those people who entered this country wanted a job and I do not blame them for that. Many of them played an important role in the areas to which they moved, but they did not tell the truth about their situation when they entered the country.
The Hetherington-Chalmers Report referred to English and Scots law. I believe this matter has already been mentioned tonight. The report stated that neither English nor Scots law have imposed time limits in the prosecution of indictable crime. The War Crimes Unit has taken its time over this matter. The noble and learned Lord, Lord Scarman, the noble Lord, Lord Jenkins of Hillhead, the Cardinal of Westminster and I have formed ourselves into a committee which has sought new legislation to deal with miscarriages of justice. We have dealt with the case of the Guildford Four and that of the Maguires. I have not checked my papers but I believe that when I was Home Secretary I sent the Maguire case back to the Appeal Court. I was given a dusty answer and told not to waste the court's time. The Maguires are now out and so are the Guildford Four.
976 I am the last person to want miscarriages of justice to occur. There must be a cloud over parts of the judiciary and the police, otherwise the Government would not be about to introduce legislation to deal with miscarriages of justice. As interested as I am in war crimes, I do not wish to see miscarriages of justice. I would not care if no one who was investigated was charged if the evidence does not stand up. That is the glory of our system. I am not seeking to catch people for alleged crimes because of what I witnessed at an impressionable period in my life.
As regards miscarriages of justice, I understand that a body, separate from the Court of Appeal, and separate from the Home Office, is to be set up to deal with this. However, I believe the Court of Appeal will be involved. I am not worried about delay. What is important is that this work must be carefully carried out.
I wish to say a few words about the nature of these war crimes. I am an oldish man now but sometimes when one is inside this place one feels younger than when one is outside it. As an old man I sometimes talk with my young sons. They ask me about Dresden. I was proud to serve in the RAF but I was not at Dresden. But I also talk to my sons about the rocket attacks on London and on Lewisham. A ceremony was held in Lewisham recently to mark the anniversary of a rocket attack. However, those events are not war crimes according to the definition of the law.
I have just revisited—as I do every year—war graves in those parts of the world in which I served. I visited Sicily to see the graves of the 51st Highlanders and the 50th Northumbrians. Some of my friends are buried there. My father died as a result of the First World War; he was gassed. I have taken my children to see the war graves of north eastern France. What a society there was at that time, but millions of Germans, French, British and other nationalities died in the First World War and no wonder in the inter-war years the cream of manhood had disappeared.
I regard those events as war crimes in the non-legal sense. However, the war crimes we are discussing are of a different nature. They were committed away from the front. The Hetherington-Chalmers Report describes various crimes. It describes how people were lined up in front of a trench and shot so that they would fall into the trench. What happened at Dresden was terrible, as were the rocket attacks on London, the bombing of Rotterdam and the heavy bombing of the German cities. But the crimes we are talking about must not be forgotten. I shall return to that matter in a moment.
I served in the Air Force but I also spent some time working with Army personnel. Recently I returned to the south of France. When I served in that area I was astonished to discover that the German soldiers who wore Iron Crosses came from eastern Europe. I had been fed the idea that Europe was waiting to be liberated and that most of the people in Europe were waiting to be liberated by us and were not on the side of the Germans. I did not find that to be true. They had fought willingly for the Germans. I found that was the case in Yugoslavia and as regards the troops who were streaming from the Hungarian front. I understand, although I do not know 977 about this, that there were similar soldiers —not soldiers of fortune, but working with the Germans—in pockets on the second front.
It was those people from eastern Europe who found their way into this country. That is why we should examine how they entered this country rather than actual war crimes. Some of those people committed heinous crimes.
In the past few years I have talked to Jewish friends who were in concentration camps. My friends told me that the personnel in those camps, who came from the Baltic states and parts of eastern Europe, were worse than the Germans. They tried to outdo the Germans in their behaviour. Only some of those crimes will be able to be proven. I do not want revenge. I have fought against capital punishment. I do not wish those people to be hung if they are found guilty. All I want is for the world to face up to what has happened.
We need to face up to what is happening in Yugoslavia now. The Government have embarked on a scheme with the UN to establish war crimes tribunals, and then trials, in Yugoslavia. Therefore, that process will happen again there. However, I should have thought it would be extremely difficult to obtain evidence. I believe it is a mistake to hurry things up. I have no knowledge of how many cases have been considered. Let the matter be dealt with but at least let it be known that we in the Parliament in this country have stood up and declared that war crimes are evil. Let us not be sidetracked from that.
I saw Barbie's Lyon. I saw Lyon airfield bombed to smithereens. The light bombers—or the posh name for them, the tactical bombers—bombed the airfield. The French kids cheered and they were shot. I saw their legs sticking through the earth. That is a war crime and it is that sort of war crime—not the events that occurred in battle in north eastern France that I describe to my sons—that was perpetrated, mainly on members of the Jewish faith in eastern Europe, that we need to consider. The other House, in which I was proud to play a part, stood clearly for dealing with such war crimes. We should not renege on that. Let us see what happens.
§ 6.40 p.m.
§ Lord Mayhew
My Lords, supporters of war crimes trials are fortunate indeed to have as their leader, and chairman, someone who speaks not only in a most agreeable and persuasive manner but who was also a Home Secretary—and a much better Home Secretary than Sir John Simon whom he mentioned.
I confess that I had hoped that the experience that we have had since the passage of the Act might have modified the enthusiasm of the noble Lord, Lord Merlyn-Rees, for pursuing the war crimes trials. I think, for instance, of the experience of other countries. I recall that during those debates the noble Lord and others urged us to follow the example of Canada, Australia and Israel. Experience since confirms all the worst fears of those who opposed the Act at that time. All the trials were disasters, especially the one in Israel, which 978 illustrated in the most dramatic way how right those noble and learned Lords were who said that it is impossible to identify people after all this time.
The trial of Demjanjuk was a show trial. It was televised. Schoolchildren were bused in. I recall seeing on the television, on the BBC news, the eye witnesses advancing on the accused, Demjanjuk, saying, with complete sincerity and conviction, "That's the man, how could I possibly mistake him?" The Israeli judiciary, and everyone, now knows that those witnesses were wrong. On that occasion it did not stop Demjanjuk being sentenced—to death, as I recall. But it was a tremendous warning of how such war crimes trials can go wrong and it fulfils all the forebodings that we had at the time. I had hoped that that might have modified the attitude of the noble Lord, Lord Merlyn-Rees.
Other events have occurred since the Act was passed. We have had a revelation of the amount of money and the substantial quantity of skilled servicemen who have been devoted not to anti-drug or anti-terrorist activities in the United Kingdom but to searching out in remote parts of Eastern Europe people who might have committed war crimes. Those people were not even British at the time.
Since the Act, there has been the passage of time itself. The noble Lord, Lord Merlyn-Rees, said—I believe I quote him—"I am not worried about delay". But we ought to be greatly worried about delay. Let us consider the Hetherington report which was the basis upon which the Government took up the cause, framed the Act, and pushed it through. The report stated,Given the age of the suspects and witnesses any proposed legislation should be introduced and brought into force as quickly as possible".That was stated five and a half years ago. In describing their investigations in eastern Europe, the authors of the report stated:The greatest difficulty we encountered was simply the age of the suspects and witnesses".That was their finding, six and a half years ago.
The offences were committed more than 50 years ago. The noble Lord states that he is not worried by the delay. But, of course, that is not the end of the delay. Justice will be further delayed. Let us assume for a moment that the Crown Prosecution Service puts a case to the Attorney-General and the Attorney-General judges in favour of the prosecution. That might occur within a month or weeks. But what then, my Lords? The defence starts to build its case. It will have to go to eastern Europe, with translators and interpreters. It will have to examine records and archives. It will have to start a desperate, almost certainly futile, search for defence witnesses. I should have thought it likely that all possible defence witnesses will either be untraceable or dead.
Eventually the trial may begin. The Act contains some unprecedented aspects, especially in relation to retrospection. Therefore there will be an enormous number of points of procedure during the trial. The trial will drag on for a long time. When the verdict is eventually reached, how old will the accused be? If he had a rather senior post when his alleged crime was committed, he will at that time be in his nineties. If he 979 were a smaller fry, he will be in his eighties. That is too old. It is far too long since the offence was committed. People's memories are wholly unreliable. Defence witnesses cannot be found. Such a prosecution is wrong.
Those of us who as soldiers took part in the liberation of Europe were brought very close indeed in the concentration camps to the horrors of which the noble Lord spoke. However, despite the appalling nature and seriousness of the charges, the passage of time has made it, in my view, not only unfair but actually indecent to bring charges under the Act.
Perhaps I may say a word about the attitude of the Government. In this House Ministers have not attempted recently to defend the Act or its purposes. Their constant cry has been, "It's on the statute book. The Commons passed it. Therefore we have to carry it out". I believe that that is a little disingenuous. After all, it was the Government who started it. The author of the report, Sir Thomas Hetherington, was asked at a meeting here, "Seeing that the Government ended war crimes trials with the support of all parties in 1948, what has caused this sudden recurrence of a demand for war crimes trials?" He put as one of the major factors the visit to Israel of the then Prime Minister, the noble Baroness, Lady Thatcher. It was perfectly legitimate. I do not complain. However, the fact is that the Government took the initiative in producing the Bill. They passed the Bill; they supported it in both Houses. They are now relentlessly seeking to implement it. The Government cannot avoid responsibility. They cannot simply say, "The House of Commons passed it and we are carrying out what is on the statute book".
Furthermore, the Bill before us now is not on the statute book. We are in a new situation as a result of the passage of time and the Government are perfectly free if they wish to support the Bill. Nothing that the House of Commons has done should stand in their way if they wish to do so. All that the Government have done meanwhile is to devote a lot of money and much badly needed trained security personnel to investigate atrocities committed more than 50 years ago in remote parts of Eastern Europe by people who were not then British. It is hard to imagine a more perverse sense of priorities than that.
§ 6.49 p.m.
§ Lord Jakobovits
My Lords, this is the third time that we are debating the subject of war crimes. Looking through the list of speakers today, it appears to me that those who are taking part have previously expressed their opinions—or at least the great majority of them. It appears from the speeches made so far that the opinions have not changed, nor is it likely that they will because these are matters of deep conviction. I wonder therefore why the debate has been introduced and why efforts are now being made in the supplementary provisions to undo what Parliament has decided by an overwhelming overall majority on two previous occasions.
The noble Lord, Lord Mayhew, cited the experience of Israel as an example of the dangers involved in bringing such prosecutions. I think that it proves the opposite. It proves that despite the legislation, the courts are still powerful enough to discern the truth, or at least 980 to question allegations if they cannot be absolutely proved. Therefore, in that case, as in so many other cases, the law has not been changed. None of the countries changed its legislation; all that was done was to apply the rigours of the law to ensure that there should be no miscarriage of justice.
But let me come to a more fundamental point. Even though I too have spoken in the two previous debates and can offer little originality in my contribution to the renewed discussion, I wish to add a couple of questions. Is it really suggested that the millions of victims are any less dead now than they were 50 years ago or, for that matter, than they were a couple of years ago when Parliament overwhelmingly passed certain legislation? Is our debt to those who have been exterminated with such fearful and unprecedented horrors any less now than it was then?
That leads me to perhaps a more topical question. As this current year is about to conclude and we usher in the new year 1995, the world will observe the 50th anniversary of the liberation of Auschwitz and Majdanek, of Dachau and of Belsen, when we first discovered the horrors that had occurred. This commemoration will be marked throughout the world. There will be gatherings in which the world will be reminded of what took place and what the rest of the world tolerated at the time. In Europe in particular, occupied as it was, there will be countless efforts made to recall, remind and remember. Shall we in this country—because by the grace of God we were spared occupation by the Nazis—be the only or nearly the only European country that will move in the opposite direction? Instead of recalling and perpetuating what happened, shall we expunge it and say that because a number of years have passed we are no longer interested in the execution of justice? It would be inconceivable that we should be the odd man out in this impending year of the 50th anniversary by giving a signal that we care less than others who suffered so much more than we did in this country.
I believe that here I can apply the final verse of the Book of Ecclesiastes the Preacher, written, as our tradition has it, by the wisest of all men. He said:This is the end of the matter; all has been heard. Fear God and observe His commandments, for this is the whole duty of man".None of the commandments is more sacred than the one in the fifth Book of Moses:Justice, justice shall you pursue".Justice needs to be pursued, and not only done when it comes our way.
I hope that even if we never find a single criminal whose guilt can be proved by all the rigid tests that we apply—and rightly—at least our statute books will record that we will for ever remember the ultimate in injustice and in cruelty that has been perpetrated and will wish to count ourselves during the coming year among those who will remember, will recall and will warn future generations that mankind will never again tolerate that fearful slight, not just on human rights but on human life by the million.
981 I believe that by sending out this message from this venerated House to our country and to the rest of the world we shall be counted among those who have not failed in the fulfilment of the law—to ensure that justice will be pursued even if it cannot always be done.
§ 6.56 p.m.
Lord Campbell of Croy
My Lords, my contribution in the debate is aimed at helping to find the answer to the question: what was it that put the United Kingdom in a thoroughly unsatisfactory situation in 1989? There had been no way of dealing with any alleged war criminals from World War II who were resident in the United Kingdom. Any new legislation in 1989 would be for events nearly 50 years earlier, with all the difficulties of obtaining clear evidence and certain identification.
The situation arose because in 1948 nothing was done to ensure that there would be legislation in the United Kingdom to deal with any war criminals who had entered this country in disguise. It is important to recognise this crucial omission. The Nuremberg tribunal was established by the victorious allies after World War II. It tried Hitler's accomplices—Goering and Hess, plus military and other leaders who had perpetrated horrors. These were the ringleaders. They and some others who were prominently suspected of war crimes were tried by that tribunal.
Some who should have been tried had escaped and were later found in South America and elsewhere, long after 1948. Others were never found. After three years, the Nuremberg tribunal was brought to an end. It was never intended to have a long life. The big fish had been dealt with. Lesser suspects had been tried in courts in the British and other zones of Germany and these were the smaller fry.
This process was handed over by the British in our zone to the newly formed German courts in the newly democratic West Germany, which continued to try cases over the next 40 years. Other countries in continental Europe also retained the means to try alleged war crimes from World War II. Britain was a notable exception. It was presumed that no war criminal would have found a place in our society here. This was an idle assumption because large numbers of refugees from areas such as the Baltic States, the Ukraine and other parts of Europe entered Britain in the late 1940s with very little screening. It was not difficult for a war criminal who was not widely or easily recognisable to conceal himself among those refugees. With false papers, he was then safe.
Until the War Crimes Act 1991, there was no way in which an accused in this country could be brought to trial in the United Kingdom for a war crime committed in World War II. In 1957 it was made possible for prosecutions to be brought in the UK, but not for war crimes that had taken place before that year. The legislation was not retrospective to World War II. The noble Lord, Lord Merlyn-Rees, recalled cases in the late 1940s when refugees came to this country from south and central Europe. I remember similar events in the late 1940s—I worked in the Foreign Office from 1946 to 1949, dealing with Eastern Europe. The alleged war 982 criminals involving our department were Yugoslavs in the United Kingdom, some of whom were sent back to Yugoslavia for trial. But the refugees who had come in from the Baltic States and the Ukraine had been behind the German and Russian front and very little was known about their background. In brief, anyone who thought in 1948 that all war criminals had been brought to trial deluded himself. Any deliberate amnesty then or calling a halt to the process in this country had the effect of a reprieve for the war criminal who had so far escaped arrest by means of disguise and deceit. Trials continued in other countries into the 1950s and later.
In my opinion, the 1991 Act was many years too late. Although the Statute of Limitations does not apply to murder, firm evidence and indisputable identification is very difficult to collect after 50 years. I take an illustration in Scotland. Recently, in a Scottish court, an individual was found to be a war criminal after he had brought a defamation case and after investigation in the Baltic States. However, no prosecutions are to be initiated in Scotland under the 1991 Act because sufficient hard evidence is not available. That is an anomalous and very unsatisfactory situation. Of course the individual should not have brought the defamation case. He must have thought that he was even safer than he was.
The noble Lord, Lord Mayhew, for whom I have the highest regard and for whom I worked in those days when I was a Foreign Office official and he was a Parliamentary Secretary at the Foreign Office, rightly recorded that the Nuremberg tribunal and the trials in the British zone were brought to an end in 1948 with general support. Unfortunately, there was a gap in UK legislation for any person in this country who might be suspected or accused. In the late 1940s I was sending notes to the noble Lord from the Official Box up there because the Commons was sitting in this Chamber after the bombing of the other place. I also sent notes to Mr. Ernest Bevin and Mr. Hector McNeil. The noble Lord, Lord Mayhew, took more notice of my notes, of course, then than he would now.
I shall end by recounting a personal experience. Leading elements of the Scottish division in which I was serving, with our accompanying armoured units, discovered Belsen. That was on 15th April 1945, exactly two weeks before I was wounded and disabled. The concentration camp happened to be on our line of advance. Many of our officers and men had witnessed horror and carnage in the previous 11 months, but they felt a sense of outrage at what they found. There had been rumours that such camps existed but this was the first one to be discovered in the West. Here was the awful proof. The press arrived as we were moving on towards the Elbe, and in the following days newspapers were full of accounts and photographs. Belsen had no 983 gas chambers but its victims were left to expire miserably from starvation and disease. We were several months too late to save Anne Frank.
§ 7.5 p.m.
§ Lord Houghton of Sowerby
My Lords, I shall be brief; at present late hours are not good for me, and I do not think that I ought to take up the time of the House if I cannot stay to the end of the debate. I apologise.
However, I wish to register my position. I am in support of the noble Lord who introduced the Bill. I am fully in support of everything that was just said by the noble Lord, Lord Campbell of Croy, and also the remarks of the noble Lord, Lord Mayhew, who spoke before him. Therefore a good deal of what I might say would be to underline what they said. But perhaps I may just offer the following advice.
The whole of this debate in favour of the course upon which we are now set ignores the fact that we have a jury system. The three countries which have joined in the compact to carry out these prosecutions for war crimes and which have our judicial system have found that their first case has been their last and nothing but frustration and social discontent has followed. We are on a course that we shall regret if we pursue it. It is far too late. Our system of judicial treatment is much more exacting and fastidious than most. When we hear about evidence that is adequate, we probably do not take into account that members of the jury have to be convinced that the evidence they hear is fully corroborated and is the basis upon which they can reach a verdict without reasonable doubt. That is a very severe test to apply to their judgment.
It is not convictions that we have to worry about—it is acquittals. Acquittals are the disaster. Other countries do not have the "fitness to plead" rules that we have. In Canada the accused was so ill during the nine months of his trial that he was able to be in the dock only for limited times on doctor's orders. At other times he appeared wilting and listless and paid no attention to the proceedings. I hope that we can avert a repetition of the social discontent and racial disharmony which follows acquittals in these cases.
Those who press for retribution through the trial of war crimes are after what they conceive to be justice and which is in fact punishment. When they do not bring about the punishment, they cannot be satisfied with the system; and they cannot be content that justice has been done.
I hope that circumstances will allow us to come out of this with honour and dignity. Next year we shall commemorate the 50th year after the ending of the war. No trials relating to events that took place over 50 years previously can possibly succeed under our system. Let us think of what the Canadian case imposed on all concerned. The noble Lord, Lord Shaughnessy, can tell your Lordships a great deal more about that case than I can. The jury listened to evidence for six months. Six months! Let us think of that jury then taking three months to consider their verdict: they came to a unanimous conclusion which led to acquittal. Then the balloon went up. It was very sad and it is still sad. They have not had another.
984 In Australia, the question arose of fitness to plead, when the accused in the first case shot himself in the chest and rendered himself incapable of going to trial. The question arose as to how long one waited for the accused to be fit to plead before going ahead. We do not realise what we are in for. I hope that wiser counsels will prevail. Let us get the emotion out of the issue now. It is a practical matter.
In Canada, 43 witnesses from eastern Europe had to be kept in Toronto for nine months while the case proceeded. There were six months of listening to testimony, with translations; the examination of witnesses had to be translated. How can that be a practical basis for a trial? In the Canadian case the defending counsel offered no defence and called no witnesses on the ground that he had no facilities for getting witnesses. The prosecution had all the opportunity and time that they cared to take to find witnesses; but the defence had no similar facilities in order to find evidence to the contrary. Let us pay attention to what noble Lords are saying in that direction.
§ 7.11 p.m.
§ Lord Lester of Herne Hill
My Lords, unlike other noble Lords who have already spoken or who will speak in this debate, I was not a Member of your Lordships' House during the turbulent and painful passage of the War Crimes Bill. Therefore I may be the only Member of the House to speak on this subject for the first time. However, I have carefully read the remarkable, protracted and sometimes emotive debates. Like most noble Lords, I wish that the Bill had never been introduced, though I do not hold that view for the reasons given by many of its harshest critics.
I do not believe that the rule of law was violated by the coming into force of the War Crimes Act 1991. It gave jurisdiction to our courts to try offences of murder or manslaughter committed as war crimes in Germany or German-occupied territory during the Second World War. It did not change the law retrospectively to make someone liable to prosecution and punishment for an act which, when he did it, he had no reason to believe was a criminal act.
The cold-blooded and sadistic crimes covered by the Act were individual crimes of mass murder, as the noble Lord, Lord Merlyn-Rees, so forcefully reminded us. They flagrantly violated the laws and customs of war as well as of peace. What was done by the perpetrators was criminal according to the general principles of law recognised by all civilised nations, including pre-war Germany.
The 1991 Act removed immunity from prosecution for those war criminals who were not British citizens during the Holocaust and its bestial atrocities. But it did not take them by surprise as to the criminality of their horrific acts. The Act was therefore fully in accordance with the international human rights codes.
Nor do I believe that the fact that the Labour Government decided in 1948, with Sir Winston Churchill's support, not to proceed with war crimes trials in the British-occupied zone, in any way precluded Parliament from passing that Act giving jurisdiction to 985 our courts. As the noble Lord, Lord Campbell of Croy, rightly observed, what was done in the late 1940s was and remains controversial. It has been powerfully criticised by writers such as Mr. Tom Bower, in his disturbing and dispiriting book Blind Eye to Murder. But what was done by the British Government (rather than Parliament) in that bleak Cold War era did not in any way decide that Nazi war criminals could obtain a safe and permanent haven from justice in this country by deceiving the Home Office and obtaining British citizenship.
Nor do I consider that the Act has authorised, still less required, unfair criminal trials. It did not create some newfangled procedure for Soviet-style or McCarthyite show trials. Rather, it included the public interest safeguard (in Section 1(3)) for the accused that cases can only come to trial with the consent of the Attorney General or, in Scotland, the Lord Advocate. That is an important safeguard in preventing miscarriages of justice. So is the even more vital safeguard of the independent judiciary in securing a fair trial by jury in accordance with the presumption of innocence, the rights of the accused and the stringent standards to which the noble Lord, Lord Houghton of Sowerby, referred.
The strongest argument made during the debates against the Bill was that it was futile because a fair trial would be very difficult to achieve for a man in his seventies, a half century after the alleged crime was committed. Such a trial would be unlikely to succeed and would be a daunting undertaking for the judge and jury as well as for the prosecution and defence.
I agree with that powerful objection. But another and more troubling reason for wishing that the Bill had never been introduced is that the controversy about its passage stirred that very light sleeper, antisemitism. It did so without contributing in a positive way to public education about the evil banalities of the Nazi atrocities and the lessons still to be learnt, especially at a time when ethnic and religious hatred and antisemitism again stalk across Europe.
In my view, the Bill and its passage revived terrible memories and nightmares. At times there seemed almost to be more concern in some quarters for septuagenarian war criminals than for the traumatic memories and feelings of the survivors who escaped them. Supporters of the Bill were accused, insensitively and unfairly, of harbouring feelings of revenge and retribution rather than the quality of mercy.
That was an exorbitant price to pay for enacting a statute that at best could not result in more than a handful of successful prosecutions. That is why I was firmly opposed to the original Bill and would have voted against it. But —I emphasise—that is past history.
So strong was the opposition in this House, led by the noble Lords, Lord Campbell of Alloway and Lord Houghton of Sowerby, and my noble friend Lord Mayhew, all of whom have spoken this evening, that the Government were compelled to invoke the Parliament Act to secure the Bill's passage. Those noble Lords should be content with their victory in forcing the Government to invoke the Parliament Act to give effect 986 to the will of the democratically elected other place. It is regrettable that now, instead of leaving matters to take their course, they seek to stultify the Act altogether by preventing proceedings from being brought in the future and by empowering the Court of Appeal (Criminal Division) to stifle any pending prosecution at its birth. That is a wholly unnecessary power because paragraphs 6 and 11 of the Schedule to the 1991 Act give the Crown Court a specific power to dismiss a charge and quash an indictment if it appears to the judge that the evidence would not be sufficient for a jury properly to convict.
I am sorry to say that this Bill reopens the wounds inflicted during the passage of the 1991 Act three years ago. It seeks to override the Act just when police investigations are concluding and the responsible public authorities are deciding whether or not it is in the public interest to bring a prosecution against suspected war criminals.
Surely we should respect the will of Parliament, as expressed in the 1991 Act, and leave it to the prosecuting authorities, the law officers and the courts to decide whether anyone should now face trial. If the noble Lord presses his Bill further we will send a message to the world that this House is so concerned with the well-being of a handful of suspected war criminals living here that the House is prepared to attempt to take power away from those entrusted by Parliament with the task of reviewing the evidence, so painstakingly obtained, and from those entrusted by Parliament with deciding whether a prosecution is or is not in the public interest. That would suggest a curious scale of values and priorities. It would also imply, without any rational basis, that we in this House lack confidence in the prosecuting authorities and the law officers, and ultimately in our independent courts including the Lord Chief Justice, to pursue justice or not to pursue justice according to the law of the land. That is why I devoutly hope that the noble Lord, Lord Campbell of Alloway, will not proceed further with his unnecessary, divisive and untimely Bill.
§ 7.20 p.m.
§ Lord Bridge of Harwich
My Lords, I have always thought that by far the gravest objection to the jurisdiction which the War Crimes Act conferred on the English courts was the near impossibility that anyone tried in the exercise of that jurisdiction could be guaranteed a fair trial. It was a near impossibility at the time when the Act went on the statute book. As the years pass the prospect of a fair trial becomes more and more remote.
The noble Lord, Lord Merlyn-Rees, spoke of miscarriages of justice. He spoke of the judiciary being under a cloud, which implies that he thinks those miscarriages were due to judicial incompetence. I hope he is wrong. I do not believe they were. I believe that the miscarriages of justice were due to the fallibility of the criminal justice system. Any criminal justice system must be fallible and regrettably will always remain so. I do not know how it can be made infallible. But however those miscarriages of justice occurred, they vividly brought home to us that an English jury, on apparently credible evidence, trying someone for a 987 crime committed in recent times and in the familiar social environment of this country, can still be shown to have been wrong and to have caused a miscarriage of justice. To ask an English jury to try an old man of my generation for one of the gravest crimes in the calendar on the basis of evidence presumably given by witnesses of similar advanced age about events which occurred in eastern Europe in circumstances of great social upheaval is surely to invite a miscarriage of justice.
Before the Bill can reach the statute book, if ever it does, more than 50 years will have passed since the latest date when any of the crimes to which the 1991 Act is directed were committed, and that is a long enough limitation period for any crime, however serious. That is why I support the principle of Clause 1 of the Bill.
That said, of course I recognise the sincerity and understand the depth of feeling of those who take the view that the crimes to which the 1991 Act was directed were of such enormity that the attempt to bring the perpetrators to justice is one which can never properly be abandoned. They must presumably proceed on the basis that, even after so long a time, a fair trial is still theoretically possible. In one of the debates on the Bill which became the 1991 Act the noble Lord, Lord Mishcon, by virtue of a vivid exercise of his fertile imagination, gave an example of how such a case may arise. He envisaged my noble friend Lord Campbell of Alloway walking along Piccadilly and recognising someone with a peculiar scar on his face as being a guard at Colditz who had subsequently murdered a prisoner. When one imagines a case of that kind it is theoretically possible that there may still be a fair trial; but the theory is a remote one.
Even the most passionate advocate of continued prosecution must recognise that whether or not there can be a fair trial in a specific case must depend on the nature of the issues and the character of the evidence involved. When the Bill which became the 1991 Act was before the House for the second time, I urged the House, having opposed a Second Reading when it was before the House on the first occasion, to give it a Second Reading in the hope that the procedures involved could be amended and improved. But the House was not persuaded with the inevitable result that, under the Parliament Act, the Bill immediately received Royal Assent without amendment. If this Bill proceeds there will be an opportunity to enhance the procedure in ways I believe are necessary.
The 1991 Act does not spell out in terms that despite its retrospective character in one sense it is still open to the courts to exercise their jurisdiction to stay a prosecution on the grounds that the defence would be substantially prejudiced by delay or that delay would make a fair trial impossible. I understand the Government's position always to have been that the courts will have that power and now that they can look at Hansard perhaps that will cure the ambiguity. But in principle it is wrong that a statute should remain ambiguous on the basis that Hansard will cure the ambiguity. I hope that if this Bill proceeds it will be possible in Committee to introduce a suitable provision making it perfectly clear that the courts have that unfettered discretion.
988 When it comes to the exercise of the discretion, had the Bill in 1991 received a Second Reading, I was minded to table an amendment on the lines of the provision in Clause 2 of this Bill. To my mind there should be an appeal either way. An application to stay a prosecution on the ground of prejudice by delay comes before the single trial judge and, as the law stands at the moment, there is no appeal from his decision. In the special circumstances of a war crimes prosecution—so long as they can and do continue—it seems to me entirely right that the onerous responsibility of deciding on an application whether, in the circumstances of a specific case, there is such prejudice that the prosecution should be stayed or whether there cannot be a fair trial should not rest on the shoulders of a single judge. Any such decision is bound to be highly controversial and it is only right that the last word and the responsibility for taking the decision should rest on the shoulders of three judges in the Court of Appeal.
§ 7.29 p.m.
§ Lord Beloff
My Lords, few noble Lords would disagree with me were Ito say that Lords Hansard does not have a very wide circulation in the Balkans. But it might be the case that someone who had perpetrated crimes of equal horror, if not on the same scale, as those alleged against the people we are discussing might come across our debates and say, "Well, it's all right chaps. I have only to get to England and I will find a group of British aristocrats and lawyers who have devoted themselves to preventing the prosecution of war criminals". War crimes, as we now know—though not on the scale of those that have been alluded to by the noble Lord, Lord Merlyn-Rees—are a feature of our world, and although we cannot prevent them, it is not for us, by indulging them, to make them more likely.
People have talked about the changes that have occurred in the past few years since 1988, when the current movement which led to the 1991 Act began, in the circumstances of some of the individuals involved. But more important are the changes that have occurred in the countries where these crimes were perpetrated. In 1988 those countries were still part of the Soviet bloc. It was obviously very difficult for our investigators to be sure of receiving the co-operation of the local police and legal authorities which they would require in order to amass the evidence that they were looking for. Circumstances in those countries have changed. We now have governments which are eager to do what they can to enlist the support and sympathy of the West. That makes it possible—I am not in the confidence of those who are in charge of the investigations—that it will not simply be a question of whether one old man can identify another. There may well be written records which were certainly not available five or six years ago and, as we know, our outlook on the Soviet Union itself—these crimes occurred not in Russia but in places which were then part of the Soviet Union—has changed enormously. For instance, the Katyn massacre was long maintained to be a crime of the Germans but has now turned out not to be so. It therefore seems that we are 989 entitled to look at whether or not this is a suitable thing to do in the light of the legislation which is on our statute book.
It is curious, because the argument has been exploded so often, that the noble Lord, Lord Mayhew, continues to insist that the agreement to cease war crimes trials in the British zone of occupation in Germany is binding on the British Parliament in relation to crimes which were not committed by Germans, nor in that territory. The decision, which was a perfectly understandable one, to end those war crimes trials was, as the noble Lord, Lord Campbell of Croy, reminded us, a part of handing over criminal jurisdiction to the burgeoning democratic courts of the new German federal republic. Indeed, to their credit, the German federal government have been from time to time prosecuting, and are still prosecuting, war crimes, where the criminals have been identified. Though they may have a different system of courts and prosecution, as is true of other continental countries, no one has so far suggested that there have been miscarriages of justice there or in the war crimes trials that have taken place in France. In other words, this is a matter which deeply affects Europe and ourselves. As the noble Lord, Lord Jakobovits, said, for many of us it is a matter of conscience.
I agree with the noble Lord, Lord Lester of Herne Hill, that there are problems in raising the issue of the motive of these appalling crimes. On the issue of anti-semitism, I am sure that it has had its effect, in the debates both in this country and in Canada and Australia, on the attitude to these crimes, but that surely is not something which we should take into account. It was wrong to massacre Jews in eastern Europe because they were Jews, just as it is wrong to massacre people in Bosnia because they are Moslems. The identity of the victims is not the important point. The important point is the motive and the conduct of the crimes.
Therefore, I can see no reason why we should, as this Bill would demand of us, suddenly intervene politically in a process which is proceeding, albeit slowly. No doubt the delays will limit the number of prosecutions and possibly the number of convictions. But I feel that it would be sending a signal to every neo-Nazi in Europe if the House of Lords was thought to be in any way acting so as to condone crimes which, as I say, have been repeated but never on the scale of those with which we are dealing.
§ 7.35 p.m.
§ Lord Shaughnessy
My Lords, to support this Bill, sponsored by the noble Lord, Lord Campbell of Alloway, is not to condone in any way the hideous, almost unbelievable, atrocities that happened in Europe in the course of World War 2. The noble Lords, Lord Mayhew and Lord Campbell of Croy, had a similar experience to mine at the end of the conflict in 1945 and witnessed the liberation—at least the freeing—of the concentration camps in north west Europe. That horrifying experience will be ingrained in the minds of many other noble Lords—it certainly is in mine—and therefore the question of even contemplating the mitigation of such crimes is not a factor so far as I am 990 concerned. I do not view this Bill in a technical sense as many other noble Lords have, but as an attempt to limit the whole process which was inaugurated with the War Crimes Act 1991. The biggest problem is the passage of time and the possibility of a fair trial after 50-odd years which have passed since any of these crimes may or may not have been committed.
There is no use repeating the problems of age, identification and the possibility of finding reliable witnesses either for the prosecution or the defence. That has all been discussed before. But if the process continues, the problem becomes bigger. Each month and year that passes the difficulties which face mounting a fair trial are increased.
The noble Lord, Lord Houghton of Sowerby, in what might have been considered as a trailer for my speech, referred to the experience under the Canadian War Crimes Act. I shall refer only to a couple of instances in order to give examples. The first prosecution was against a man called Imre Finta. As a constable under the Nazi regime, he was accused of sending a number of people to their deaths in a concentration camp. He was apprehended. I am not sure whether he was actually indicted, but after his arrest under the Canadian War Crimes Act, it was about two years before he came to trial. The whole process of assembling evidence and whatever else which had to transpire, took that long. He came to trial and in May 1990, shortly before the War Crimes Bill was debated for the first time in your Lordships' House, he was acquitted. Because of a technicality, the Crown in Canada was granted the right to appeal to a higher court. That process had gone on since May 1990. In March of this year the case reached the Supreme Court of Canada, which denied the appeal and at last Finta was discharged.
That is a very long time for a man who is now 82 years old, who has lost his business, his house, and who is now in reduced circumstances, to go through such a process. I raise this point because if that kind of thing were repeated under the War Crimes Act which we are now discussing—it probably would not because I believe that an acquittal cannot be appealed under the British criminal system—it would be a very severe curtailment of human rights and compares to the dreadful experience which people experienced under the Nazis during the war with whom we are concerned in this exercise.
No other prosecutions have been mounted under the Act in Canada. One man was charged but the proceedings were stayed because of his ill-health. He was 83 years of age. Three other prosecutions were mounted and in two of the cases they were stayed because a witness became ill and unfit to attend the trial although, if there is a recovery, the trial can be started again. In another prosecution the key witness died. In a further prosecution an application was made to take evidence in the former Soviet Union, but that was refused by the trial judge. There has been no success in any of these trials in Canada. I shall not dwell on that any more.
As some noble Lords may know, in Australia an investigation under the Special Investigation Unit of the Attorney-General's department has been set up to go 991 into the whole question of their war crimes legislation. In its final report, which took four years to prepare and which cost 40 million Australian dollars, the conclusion was that the unit found that 16 members of the Belgrade special police unit were allegedly responsible for the arrest and torture of thousands of Nazi opponents, including 856 inmates who migrated to Australia. On the evidence gathered, the SIU found it insufficient to sustain charges even though investigators believed that suspects were likely or highly likely to have committed war crimes. The report states that the others were too old or infirm to go to trial. That is the Australian experience.
I do not wish to detain your Lordships much longer. If retribution has to be made, we have to think of some other method. The experience of other jurisdictions would indicate that proceeding as Parliament has decreed with this legislation, which I accept, may not be successful. We have had no prosecutions mounted so far although we have been told that there are a number of possibilities. I believe that it was Bacon who said,Revenge is a kind of wild justice, which the more man's nature runs to, the more ought the law to weed it out".I have no proposals about how we should proceed. As I said, I think the Bill gives some hope that we can at least limit the continuing unpleasant legal situation that exists today. The noble Lord, Lord Jakobovits, quoted the Old Testament. The doctrine that is proposed in Exodus of,Eye for eye, tooth for tooth",has little relevance in this context. If we proceed under the existing War Crimes Act without limitation, we shall be doing an injustice to a hapless group of suspects, probably toothless and failing in eyesight.
§ 7.51 p.m.
§ Lord Archer of Sandwell
My Lords, like my noble friend Lord Merlyn-Rees, I have to declare an interest as an officer of the All-Party Group on War Crimes, and like the noble Lord, Lord Lester, I am speaking on this subject in your Lordships' House for the first time.
A number of threads have run through the debate. The first touches on the constitutional implications of the Bill. The effect of Clause 1 would be to disapply the War Crimes Act in respect of future prosecutions. Since we know as a fact that no prosecutions have been initiated under the Act—indeed, as I understand it, that was the very reason that the noble Lord, Lord Campbell, was induced to introduce the Bill—it would follow that, in effect, it would repeal the 1991 Act—
§ Lord Campbell of Alloway
§ Lord Archer of Sandwell
My Lords, if the noble Lord will forgive me for one moment, I believe that I can anticipate his point. If not, I shall certainly give way to him. The noble Lord asked us to remember that if the Bill is given a Second Reading and makes its way in due course onto the statute book, there will be a period of time—a window, as it were—in which the authorities can act. I understand that that was the reason that the noble Lord sought to intervene. I understand the noble Lord's desire that no time should be lost, but I am bound to say that I doubt whether it is conducive to justice to compel those concerned to initiate a prosecution by a 992 specific cut-off point, to clear their desks by a specific stroke of the clock. I would be very concerned if that were the effect of what we have done.
Whatever the merits of the 1991 Act, it is on the statute book and it would be curious to seek to repeal it three years later, particularly in view of the overwhelming majority that it received in another place, unless there had been some material and unpredictable change of circumstance since it was passed. So I listened with great care to what the noble Lord said about how the situation had changed. The answer appears to be that when the Act was passed no one knew that by the end of 1994 no proceedings would have been initiated. I believe that there are two answers to that.
First, it was obvious then that investigations would take some time. Their very nature would involve some time-consuming inquiries and no one would have the authority to undertake them in the first place until the Act was on the statute book. Certainly, as the noble Lord, Lord Beloff, pointed out, the way in which the political situation would change was not then wholly predictable. That may have made some difference. However, no one then wanted to see prosecutions being initiated without proper consideration.
Secondly, it was clear in 1991 that even if some prosecutions had been initiated, not every prosecution would have been initiated within three years. Inevitably, some cases would still be outstanding in December 1994, and if it was then considered right to make provision which would necessarily have that effect, it now seems strange that it was not envisaged that prosecutions might run into 1995.
I turn now to the question of whether it is right to impose a time limit on any category of criminal prosecution. That proposal has never found favour in this country. There is something repugnant in the suggestion that if a criminal can by subterfuge or dissimulation contrive to remain undetected for a sufficient period of time, that should earn him exemption from paying the penalty for his crimes. That is an unattractive proposition when applied to any offence. It becomes less enticing with the seriousness of the offence. When it is sought to apply it to some of the most horrifying offences in history, it surely has few attractions. It was considered by the authors of the Hetherington-Chalmers Report, who rejected it on at least two grounds. First, in paragraph 9.19, they pointed out that it is not applied in the criminal law of this country. We would have to make specific provision for a specific category of case. They pointed out the recent example of a domestic murder that was committed 27 years before the trial. Secondly, in paragraphs 5.41 and 5.45, they pointed out that the United Nations, expressing the consensus of the civilised world, had agreed in 1968 on the Convention of the Non-applicability of Statutory Limits to War Crimes and Crimes against Humanity. In 1974 the Council of Europe took the same view in a similar convention. The Bill would fly in the face of that consensus.
What is not in dispute in this debate—it has been clear from virtually every contribution—is that in each case the court should be assiduous to ensure that no injustice arises from any delay and if, in consequence, 993 there are no convictions, so be it. Where there is a doubt, clearly the benefit of the doubt should be accorded to the defendant. That is what the noble Lord appears to contemplate in Clause 2.
Whether there is a doubt depends on the facts of each individual case. As the noble and learned Lord, Lord Bridge, reminded us, it depends partly on the question at issue. In some cases, there may be an issue as to identity. Clearly, the court should have in mind that for any of us, alas, appearances change with the years. I am still surprised at how, encountering people I knew in my youth and have not seen for many years, I am frequently able to recognise them. I am sometimes flattered to discover that they recognise me. Of course, the judge should consider with the greatest care the guidance that was given in the case of Turnbull and warn the jury accordingly. Of course, a jury may be wrong. In considering any category of offence, the only way to ensure that a jury is never wrong is never to allow a jury to convict anyone. I have a great respect for British juries and I am not unduly troubled on that score.
Something may turn on a witness's opportunity for recognising the defendant and on any reason that he may have had for paying particular regard to him. I once heard someone who had spent time in a concentration camp say, "If someone is peering into your face and you know that he has absolute power of life and death over you, you are not likely to forget his face".
However, not all war crimes cases turn on the issue of identification. In many cases the defendant admits that he is the person in question; what he disputes are the acts imputed to him. Then the question may turn, as one of your Lordships indicated, on the authenticity of documentary evidence. We have good reason to know how meticulously the Nazis made and retained records even of their vilest crimes and how when they fell into the hands of Communist regimes, they were obsessively concerned to preserve them. The American courts have subjected such documents to the most scrupulous examination and have found them to be reliable. Of course, each case must turn on the issues and the nature of the evidence. No one would recommend any lapse in the usual standards.
This country undertook the exercise because there was a campaign by certain national groups in this country on behalf of those who had reason to anticipate that they might be accused of war crimes. It was a campaign to resist any extradition or deportation of those who might be accused. It was said in response to that campaign that, instead of returning them, the British Government proposed that they should be tried in this country. It would be curious indeed if, having rejected the other alternative, we then withdrew from this one. That would isolate us from the whole community of nations where the question has arisen, and it would occasion great hurt to the families of the victims.
My noble friend Lord Merlyn-Rees has already quoted what was said by the authors of the Hetherington-Chalmers Report on the point of whether crimes so monstrous should ever be forgotten. Perhaps I may quote something else of which they reminded us. 994 It was a quotation issued by President Roosevelt, Marshal Stalin and Mr. Churchill at the Moscow Declaration in 1943. They said:Let those who have hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied Powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done".That was said before many of the crimes were committed. I hope that we will not now resile from that obligation.
§ 8.1 p.m.
§ Baroness Elles
My Lords, it is just about five years since the main debates on the Hetherington-Chalmers Report took place in this House and another place. They were sombre and impressive debates. Whatever view Members of either House took, and whichever way they voted, I think that it can be said, without any fear of contradiction, that every vote was cast while conscious of the great devastation and evil that was committed, and was in no way either for or against the Bill, or could be taken as condoning any of the acts that were committed and that we had debated.
I should like at this stage to welcome the presence of the noble Lord, Lord Lester of Herne Hill, and the noble and learned Lord, Lord Archer of Sandwell, who have joined in these debates, because they have contributed great legal knowledge. I should add modestly that I, too, am speaking for the first time, but do not pretend to add to the great legal knowledge which they are contributing to the debate. I did not speak previously because there were so many distinguished noble and learned Lords speaking in the debate of December 1989. It was not because I was not a Member of the House, and perhaps I should explain that.
It is evident that there will be many more Members of your Lordships' House, as compared with Members of another place, who will have had personal knowledge and experience of the effects of the appalling and evil deeds that were committed and about which we have been thinking tonight. We have had several examples of that. I insist on saying, as some people have said before, that old men forget. The issues through which we lived are never to be forgotten. I was a young WAAF officer at Bletchley during the war in the sector dealing with the German airforce. Of course I am still subject to the Official Secret Acts, but I can say that there were things that passed my desk which I shall never forget.
I went to Crete after the war and saw columns of names of people from the age of six to 76 who were killed by the occupying forces in retaliation. Those, again, are matters that remain indelibly on one's mind. There is no question of forgetting what happened. That is why I put the argument that the War Crimes Act which was passed—I accept that it was passed through the functioning of the Parliament Act—was a piece of legislation which was not necessary to remind us and the world at large of the atrocities and evils that were committed so long ago.
I have a cousin who at the time was a young medical student at the Middlesex Hospital. He, with about 100 others, volunteered to help the Army Medical Corp in 995 Germany to deal with health and other related problems. He found himself at Belsen having to clear up some of the appalling situations there. I see that my noble friend Lord Campbell of Croy is not in his place. I should like to tell him that those young medical students had to decide who was fit enough to be kept alive. Those for whom they did not have enough medicines they had to leave to die. Those are things which a young medical student does not forget. Of course the situation at Belsen was one of the most appalling.
To return to the Bill, I should like to support it. It limits the time within which these prosecutions can take place, but the memory of the acts and the record of horror —I repeat this—is not eliminated. My noble friend Lord Campbell of Alloway has argued fully and cogently for such a limitation to be imposed for these particular cases, and he has dealt with the legal and moral issues. I believe that I am right in saying, in reply to what my noble friend Lord Beloff said in a very moving speech, that no one would now be able to evade prosecution by coming to this country because of the Geneva Conventions Act 1957. So even if people in the Balkans were to read Hansard, we need not worry that they would be able to escape to this country to avoid prosecution.
Having dealt with those issues, and with so many other noble Lords having dealt with vital and crucial issues, I wish to deal with two or three practical matters. I believe that it is accepted that all the Scottish cases have been dealt with and withdrawn. According to the Answer given by my noble friend Lady Blatch in this House on 28th November, I understand that 233 of the total of 369 cases have been investigated fully and that the CPS has decided that they will not be proceeded with. Secondly, 15 of the 34 remaining cases are still to be investigated and nine are with the CPS. I have given my noble friend the Minister notice of this question: Has there been any common factor in the investigative reports of the 223 cases which have led the CPS to advise against prosecution and which would be likely or certain to apply to the remaining 24 cases? That is important when we consider the effects of the Bill. I ask that also because I noticed in her reply that there are three cases into which the investigations started only this year. That would be relevant to whether the proposed statute of limitation would apply to those cases and which might result in a prosecution.
My second point relates to costs. I realise that this is a delicate subject and that people may think that we should not be talking about finance when we are discussing the tragedies and evils that have been committed, but it is relevant to today. The cases, in which there has not been one prosecution, have cost over £5 million so far. Those of us who sometimes come into contact with the Metropolitan Police, as opposed to the Metropolitan Police War Crimes Unit, and who are so impressed with the valuable work that they do when dealing with crime on the streets and in people's houses know that they are short of financial resources. Is it therefore justifiable to spend that kind of money on these special cases in which most noble Lords have led me to believe that even one prosecution is unlikely. 996 Could not that £5 million be better spent by the police authorities in dealing with today's crimes and seeking to protect present and future victims of crime?
The CPS is heavily burdened in reading through the vast number of documents which result from the investigations. They have led it to advise the Attorney General that there should not be any prosecutions. Is it right that that service which is so often criticised—I must confess that I, too, have criticised it from time to time—for failing to be efficient and occasionally failing to be at court, should be burdened by this extra large and important task when the results are again going to be negative?
No one condones the acts that were committed. Nobody who lived during that period will ever forget them. I do not believe that anyone who hears the debates in your Lordships' House, or anywhere else, or who reads a newspaper will ever forget them. However, I believe that the funds and the people who are being made available to deal with the cases should be diverted to deal with today's problems and not left to deal with those of 50 years ago.
§ 8.10 p.m.
My Lords, I echo the noble Baroness's final comments about the horror of these crimes. However, I am perhaps one of the youngest Members of your Lordships' House and I believe that we must bear in mind that the majority of any jury may be in the same position. They will not have been alive when these offences were supposed to have been committed.
Difficult moral and ethical questions are posed. I read the Second Reading debates of the original War Crimes Act in Hansard. I found them interesting but the content was heavy. The arguments against the War Crimes Act appeared to be stronger.
I have also listened to many Starred Questions in your Lordships' House and have been dismayed at the reluctance of the various Ministers to give an indication of the age of the youngest suspect. That cannot conceivably be due to a poor brief; it must be possible to anticipate such a simple and obvious question. Clearly, many suspects will be too old or too feeble to plead. Will the Minister say how old the youngest suspect is?
I support the noble Lord's Bill because I do not believe that anyone will be convicted or even prosecuted under the Act. I do not rely upon my own judgment but that of your Lordships' House when debating the original Bill.
§ 8.12 p.m.
§ Lord Dacre of Glanton
My Lords, after the debates on the War Crimes Bill in 1991 I read in the press about those Peers who believed that time carried away guilt. I do not believe that anyone here today holds that view. We all agree that the crimes to which we are referring should be neither forgiven nor forgotten. They are unexampled in modern history and it is most important that we should remember them. Our generation will never forget them because they passed through our consciousness. But we want them to be remembered by later generations. If we are to achieve that we need an 997 emphatic gesture. Several noble Lords have spoken as though these trials will be that gesture. I do not believe that. I believe that the trials will send an indistinct message. Perhaps they will never take place; as we know, none has taken place yet. Time is passing and perhaps none will take place.
I believe that a true history is the proper means of recording these horrible events. The true history is being constructed, I may say, to a large extent by the Germans themselves. When I say that the crimes should never be forgiven I refer to the authors of them and not their descendants who are guiltless in that respect. I should like the real record of this awful period to be in a correct and accurate history and not in muddled trials leading nowhere.
There are enemies of a true history. We all know about the historical revisionists in France, in America and in this country. There were none in Germany but perhaps the situation has changed. Such people wish to argue that these crimes did not take place. There are also well-meaning people who, through failure to understand their true nature and to distinguish between extermination camps and concentration camps, sometimes play into their hands. I wish to ensure that the historical record is clear and emphatic and that it is passed on to the next generation. I do not believe that the lesson will be conveyed by trials if, in fact, they ever take place.
The noble Lord, Lord Mayhew, has made many of the comments I intended to make. I take the liberty of emphasising one point. We heard about the trials which foundered in America, Canada and Australia. But the classic case is that of Ivan Demjenjuk. He was identified as Ivan the Terrible of Treblinka. Inquiries into the case began in 1975. The process dragged on. He was denaturalised in America in 1981 and after a further five years he was extradited to Israel. Two years after that he was sentenced to death. Three years later, in 1991, new evidence was produced which totally destroyed the case that had been based on the evidence of 13 Israeli witnesses. They saw him not on a television screen but face to face in Israel. They all swore, allegedly independently, that he was the man whom they knew. What is the use of people saying that if one has once looked into the eyes of an extermination camp guard or torturer one will recognise him wherever one sees him? Here were 13 Israeli subjects who had looked into the face of Ivan the Terrible in Treblinka and said that they recognised him. In fact, they had "recognised" a man who had never been in Treblinka in his life.
I do not believe that there will be any effective trial. By the time the evidence has been collected, the defence has had time to prepare its cases and the trials have been mounted, all such people will be dead. What will be gained? I do not believe that justice or even the monumental record which people want will be achieved. What will be left will be a fuzzy impression and, to a great extent, acquittal, as was said by the noble Lord, Lord Houghton of Sowerby.
The monument that I should like this generation to leave to the next generation, in order to show how thin is the crust of civilisation and how easily, if the rule of 998 law, accepted morality and international order are allowed to lapse, the beast in man can emerge, will not result from the kind of justice that well-meaning people are seeking through trials which will not be effective. The trials may achieve condemnation but they will not leave an effective impression on the next generation. That is what really matters. We need to make an emphatic gesture which will last and make an impression. We do not want a muddle such as will emerge from the trials which are envisaged.
Noble Lords have referred to previous debates in this House and the other place and have said that Parliament voted by an overwhelming majority in favour of the Bill. The noble Lord, Lord Jakobovits, said that, as did other noble Lords. But this House is part of Parliament and this House voted the other way by a substantial majority. Therefore, Parliament did not vote in favour of it by a substantial majority. The House of Commons did but that is only half of Parliament, whatever the respective powers conferred by the constitution. We know that votes in the other place are subject to more discipline and are less independent than they are in this House. That is the message I should like to leave. I support the Bill of my noble friend Lord Campbell of Alloway.
§ 8.20 p.m.
§ Lady Saltoun of Abernethy
My Lords, like other noble Lords, I have never questioned the heinousness of the crimes, the perpetrators of which the War Crimes Bill was designed to bring to trial. I have never questioned that they took place because on the morning after the press got into Belsen, I saw the newspapers before my parents could hide them from me.
Having said that, I support the Bill. There is very little that I can add to what the noble Lords, Lord Campbell of Alloway, Lord Mayhew, Lord Houghton of Sowerby, Lord Dacre of Glanton, Lord Shaughnessy and the noble and learned Lord, Lord Bridge of Harwich, have said. I support it because I believe that it is very doubtful, after the passage of so much time, whether it is possible for any of the suspects to receive a fair trial.
If we had a statute of limitation in this country we should not be discussing this matter now. I do not know why we do not have that. It may be because Article 4 of the Magna Carta says that justice should not be prolonged, meaning postponed. Since we disregard that, perhaps we should consider introducing a statute of limitation in this country for murder cases. Meanwhile, Clause 1 would provide such a statute in this particular context.
Clause 2 introduces one of the most sensible and practical procedures of the Scottish judicial system in the context of prosecutions under the War Crimes Act. I wonder whether those procedures could not be adopted usefully in England as a general rule.
§ 8.23 p.m.
§ Lord Cochrane of Cults
My Lords, I am grateful to my noble friend Lord Campbell of Alloway for introducing this Bill. It seeks to rectify a situation which he has described in detail, all the problems which it engenders, and the injustices that it may cause. It is doubtless causing anxiety among many people who, as 999 matters stand at present, are innocent and elderly. I do not know whether or not they are innocent but I do know that when I first spoke in your Lordships' House in April 1991 I found it a terrifying experience. I spoke on this subject for the first time in your Lordships' House after the noble and learned Lord, Lord Shawcross. The House was packed, unlike now, and I did not know whether I should be able to cope with a problem of this complexity in the presence of so many experts.
But with the passage of years—and how the years have gone by—the difficulties which I tried to address then about ensuring a fair trial have not diminished. The problem remains intractable and I can see no solution.
In replying to my noble friend on 28th November, my noble friend Lady Blatch said, quite correctly, that there is no limit on the time which needs to elapse before a charge of homicide or murder can be laid. As I see it, that is perfectly true. But what was not said was that it derives from common law and I believe that common law never assumed that anybody would try to lay a charge some 55 years or thereabouts after the events are alleged to have taken place. There is no doubt that a great many of those crimes did take place. But the passage of time is a great impediment.
Perhaps I may remind my noble friend Lady Blatch of another circumstance for which the law made no provision—the opening of shops on a Sunday in Scotland. That was never considered necessary but, with the passage of time, shops opened in Scotland. It was not provided for earlier because it was deemed to be unthinkable. I believe that the same applies to the laying of charges of murder or homicide after very many years. That is why I do not find that particular argument very convincing.
On the last occasion on which this matter was debated, my noble and learned friend Lord Hailsham of Saint Marylebone said that he knew of no case where a charge of murder had been preferred after 27 years. Earlier today I had an opportunity to speak to the noble and learned Lord, who confirmed that as far as he knew—with the qualification that he had not researched it in detail but nobody had complained in the interval—27 years still remained a fair answer.
We are a long way from 1st September 1939. Unlike the noble Lord to whom I was speaking at dinner, on '1st September 1939 I was 12 years, 11 months and one week old. I can remember it. But because of that distance of time there are problems of identification: whether the chap was there, if it happened, and whether he did it.
That was brought to my mind the other day at a dinner given for the former pupils of the prep school which I attended. The first year that was truly represented was 1935 and there were four of us. I had not seen three of them since 1939, as far as I can tell within the limits of evidence and recollection. I did not recognise them and, indeed, I hardly recognised their names until they added a few supporting details. One of the four I had seen once. It is an awfully long time ago. Okay, we were young then and we have matured. If people want to know how I have matured, they can look at my picture in Dod's, which was taken in 1957. It is the best one that I have. Again, a chap may confess and 1000 say, "Yes, of course I did it", but has he gone dotty, has it been screwed out of him, or does he want to get his name in the Sun? I do not know.
On the day to which I alluded earlier noble and learned Lords remarked, as they have again this evening, on the retrospective enlargement of the jurisdiction. Is that right? I do not think that it is. If we count back, we are now some 55 years from September 1939. Let us go back, those of us who were alive then. I made this argument in my maiden speech and it attracted a modest degree of approbation and I hope that I shall be equally favoured tonight. We can perhaps go back to 1884, the year after my father was born. I looked it up and saw that, in February of that year, General Gordon was sent to the Sudan. In November the Mahdi occupied Omdurman. The annual Army Act was passed which set the billeting allowance for an ordinary soldier at tuppence halfpenny.
I am now convinced, as other noble Lords and other noble and learned Lords have said, that it is time to leave the problem alone. All that can be said has been said. For my part, I believe that it is now time to leave this awful affair for judgment by a greater power than ourselves, as we in time will face in death.
§ 8.30 p.m.
§ Lord Hylton
My Lords, the noble Lord, Lord Mayhew, and the noble Lord, Lord Dacre of Glanton, both referred to the case of Mr. John Demjanjuk. It so happened that I found myself in January 1992 having breakfast in a hotel in Jerusalem with his American defence counsel. At that time, Mr. Demjanjuk had been convicted in a show trial in Israel of being, as has been mentioned, Ivan the Terrible, a Nazi concentration camp guard in the Ukraine. I am glad to say that that man was later cleared on appeal in Israel. It turned out to have been a case of mistaken identity.
I also happen to have been in contact with members of the groups known as the Birmingham Six, the Guildford Four and the Ulster Defence Regiment Four. The first two cases were heard before juries in England, while the third case was heard before a judge alone in Northern Ireland. All three of them were severe, serious cases of miscarriage of justice. They just go to show that, even in the most esteemed systems of justice, things can go wrong. Indeed, they can even go wrong when the cases are recent and are being tried relatively soon after the events in question.
In my view, there should be a worldwide period of limitation on the prosecution of serious crimes, including murder and genocide. I would suggest a period of 30 years. After all, that is the equivalent of one whole generation. To adopt such a period would be to follow the good precedent set by Belgium.
I trust that the Bill will receive a Second Reading. I support it at the same time as supporting the prosecution of recent war criminals for offences committed in such countries as Croatia and Bosnia. As a layman, I support 1001 the noble Lord, Lord Campbell of Alloway, because I cannot see how anyone in the circumstances that we are discussing can get a fair trial after 50 years.
§ 8.33 p.m.
§ Lord Gridley
My Lords, I have not come to your Lordships' House today to be critical of the Government's actions in pursuing those who, in their opinion, were responsible for war crimes. However, I hope to be constructive and I am critical of the delay that has occurred in that operation. Looking back over that period, it seems to me that, basically, the Second World War was about preserving territorial boundaries, the preservation of people when under attack and the preservation of the freedom of those who were suffering in that respect. We also went to war 65 years ago to rid the world of Hitler's Germany and the brutal power wielded by his secret police over the European territories invaded, conquered and occupied by the Germans.
I speak with an interest in the matter because as an hereditary Peer one Christmas I was looked after by Tenno Heika the Emperor of Japan when I was interned in Changi Goal. He sent us some of his excellent brandy. Unfortunately some of us were suffering from sores due to malnutrition, so it was handed to our doctors to use to treat us.
In tonight's debate we have not considered whether it would be normal for people who are active, or those who are rather slow in pursuing obtaining evidence, to bring a suitable case against people in Scotland or Britain which would be evidence of past action during the war.
Also of relevance is the fact that one must realise that the secret police operated in Hitler's Germany. His so-called method of government was to use secret police in his own territory. When he occupied the territories of northern Europe, he brought those individuals with him. The peoples of occupied Europe suffered from the action taken by him in those territories, which lasted for six years until we had our victory.
When victory came I was amazed to find that those in occupation had used that kind of government in a Country. Many people were in dire disorganisation; they were accusing one another of giving evidence against each other. Indeed, there existed grave disorganisation generally.
It seems to me that the only way we can get some evidence—that is, if it is obtainable and reliable after 50 years—would be from those who had suffered. That is where the evidence would be. It would be extremely difficult to get it.
I am not privy to what is going on in Scotland or to the difficulty that people are finding there. However, generally it is very unwise or very unusual for the British to be slow in bringing charges against such people after a lapse of many years. I do not think that they would stand for it. I do not believe that it is acceptable in any court of law in Britain to delay such an action against a person who has to be tried. The 1002 evidence must be brought against that person. Then he is either cleared and goes free, or he is sentenced for what he has done.
I wrote a great deal about what I was going to say. However, I have tried to meet the spirit of what has been said this evening. Some of the speeches have been quite brilliant. I do not feel capable of arguing the matter from the legal aspect. I can simply speak from my experience of those things about which I have felt so strongly since I have been back in this country. I see the wonderful things that are done or that people try to do and how we carry out our affairs generally—except, of course, what happens in the press. It is a fact that this is a fair place to be.
I remember when the victory came, I went outside and Mountbatten was there in all the glory of his naval uniform. A great load left my mind. There is nothing more terrible than to be defeated, to lose one's freedom and not to know what on earth will happen to get one out of the situation. How different at a time of victory! I am eternally grateful for the way in which we were rescued and for the action that this great country took in bringing that about. I only hope that the debate this evening, which I think and hope will be useful to the Government, will enable them to make things move faster than they are at present.
I praise my noble friend Lord Campbell of Alloway for having brought this matter to our attention again. I warmly support what he has said. I think that we must make some effort to take a decision on this matter and either convict people of crimes which they have committed or let them go free. That is the way that Britain carries out its affairs. I warmly hope, with all my heart, that we will adopt that course.
§ 8.40 p.m.
Lord Belhaven and Stenton
My Lords, in supporting my noble friend Lord Campbell of Alloway, I should like first to say, as other noble Lords have said, that I have no wish to detract in any way from the wickedness of the crimes which we are discussing. I wish that the perpetrators had been caught quite a long time ago; but as many noble Lords have said, "caught" is the relevant word here.
In the 16th century I believe that it was a custom occasionally to dig up corpses and to try them. I suggest that if we keep this up much longer that is what we may have to do in this country. But, seriously, I ask how many more years will have to pass before we bury this matter and take more note of what is happening now in many parts of the world. However, if we must go back 50, 60 or 70 years we will find that Germany was not the only European country to practise mass terrorism. Lenin is quoted—at a period before the events in Germany—as having said,Do you imagine that the victory can be ours without the most extreme revolutionary terror"?Terror there was. And after Lenin, it got worse and worse.
It is astonishing to me, and perhaps to other noble Lords, that in the course of these investigations we are discussing —I apologise if I am wrong—the help of the KGB was enlisted. The KGB, as your Lordships well 1003 know, is exactly the same organisation as the NKVD, Cheka, OGPU and many other acronyms, but it is one still-existing organisation. I have to say that one might as well, had things turned out otherwise, have enlisted the help of the Gestapo in the investigation of Soviet crimes.
The Hetherington Report gives a brief account of the activities of the NKVD in 1939–40 in the Baltic states and eastern Poland. The full horror of these activities stretches the imagination of those of us who have lived under civilised regimes. I would tell your Lordships in this context that my Polish mother-in-law, having seen her father and many others murdered by the NKVD, fled to the German occupied area of Poland as she thought it was safer than the Russian occupied area. It was not exactly a good area to go to but it was the best thing she could find. That gives one an idea of what it was like in the Soviet occupied area.
My point is this: at that time, crimes were committed by the German and Soviet authorities which beggar belief. Every day nowadays in the Ukraine and other areas of the former Soviet Union more evidence of atrocious Soviet crimes is coming to light. The mass graves at Katyn of Polish soldiers are by no means unique, and evidence of mass murder is being dug up everywhere. Yet no one has suggested that ex-members of the NKVD should be investigated. Some may be living here but not a finger has been lifted against them. Their crimes were as bad or worse as those of others, but they were on the winning side. Soviet judges actually sat on the Nuremberg tribunal. Perhaps they knew something about war crimes.
We would do far better to pay more attention to what is happening in the world today. On Monday the noble Earl, Lord Winchilsea, asked an Unstarred Question on Moroccan atrocities in the Western Sahara. This year appalling atrocities continue to be committed by countries most of which are members of the United Nations. There is Tibet, Rwanda, Bosnia and East Timor to mention but a few. There is a long list. It is nearly 50 years ago since the Gestapo and SS committed their last crimes. The perpetrators are old and almost impossible to identify. I believe we ought now to leave the judgment to Almighty God.
§ 8.45 p.m.
§ Lord McIntosh of Haringey
My Lords, as in all debates on Private Members' Bills I should make it clear that the Opposition does not have a collective view and that I speak for myself personally.
What is curious about this debate is that although noble Lords have come to very different conclusions, they are really not in disagreement about the fundamental facts behind the issue. No one disagrees with our recognition of the horror of war crimes, particularly not the noble Lord, Lord Belhaven and Stenton, who wishes to extend the discussion beyond German war crimes. He is quite right to do that; but we are talking about German war crimes, and no one believes that the horror of those crimes should go unrecognised in any way.
1004 I do not believe that anyone is departing from the principle that crimes of this sort should, if possible, in principle be pursued indefinitely, and from the principle that there should be no statute of limitations for crimes of this kind. If convictions can be achieved, the law should make that possible. That is why I believe that the War Crimes Act 1991 was thought to be unwise by a number of people—I am not talking about this House—but it was not thought to be wrong in principle. It was not thought to be wrong in principle to pursue war crimes. At the same time, I sense, even among those who support the War Crimes Act with most conviction, that they feel there will not be any convictions arising from it. That is certainly my view. I believe we are embarking on this exercise because we believe it is right to do so and not because we think that anyone will be convicted, and certainly not from any view that it is desirable to put someone aged 80 in prison for a period of, in theory, 25 years, or whatever length the life sentence may be in their case. Therefore we are not looking at the results; we are looking at the principle behind pursuing war crimes indefinitely.
I have to say that in those circumstances, with those options, I opt for pursuing the principle that we do not impose a statute of limitations on war crimes which we would not impose on any other crime. I support the view that the War Crimes Act 1991, however imprudent it may be in judicial terms, ought not to be overturned. Let us be clear that the Bill of the noble Lord, Lord Campbell of Alloway, would overturn the War Crimes Act. If it were carried, there would he no War Crimes Act.
I now turn to my final argument for disagreeing personally with this Bill, and for wishing that Clause 1, certainly, should not succeed. I have no legal expertise to enable me to assess the virtues of Clause 2 of the Bill. My final argument is as it was when I voted for the War Crimes Bill in 1991, and in the previous Session. This Bill was carried by an overwhelming majority on a free vote in the elected Chamber and I do not think it would be right for us to seek to overturn it now by a Private Member's Bill.
§ 8.49 p.m.
§ Baroness Blatch
My Lords, my noble friend Lord Campbell will know from the Answer I gave to his Question on 28th November 1994 (at col. 473 of Hansard) that his Bill raises a most important point; indeed a fundamental question of principle. The title of the Bill explains that a purpose of the proposed legislation is to place a time bar on the institution of proceedings under the War Crimes Act 1991. The 1991 Act, as noble Lords will recall from the lengthy and detailed debates in Parliament during the passage of that legislation, is about acts of murder, manslaughter, or, in Scotland, culpable homicide which were committed as war crimes in Europe during the Second World War. Such offences are of the gravest kind it is possible to imagine. That, as the noble Lord, Lord McIntosh, said, is agreed all over the House, whatever side of the debate noble Lords are on. We do not have a time bar in the United Kingdom on bringing charges for murder, manslaughter or culpable homicide and that applies 1005 irrespective of the circumstances in which such acts are committed. Clearly, therefore, the proposal in the Bill now before us—that, in effect, an exception should be made for such acts committed as violations of the laws and customs of war—requires more than usually careful attention.
Before I go to the detail of the Bill, I do not think that it will come amiss if I remind noble Lords briefly of the background to the War Crimes Act and of the Government's policy on war crimes in relation to the Act. Just over five years ago, the Report of the War Crimes Inquiry (Cm 744) was presented to Parliament. That inquiry was conducted by Sir Thomas Hetherington and Mr. William Chalmers at the request of my right honourable friend the then Home Secretary. The inquiry had been appointed following allegations that persons now living in the United Kingdom committed war crimes during the Second World War. The inquiry was asked, among other things, to obtain and examine relevant material relating to the allegations and to consider, in the light of the likely probative value in court proceedings of the relevant documentary material and the evidence of potential witnesses, whether the law of the United Kingdom should be amended in order to make it possible to prosecute such persons for war crimes.
The inquiry recommended that our courts should indeed be given jurisdiction over such crimes and that consideration should be given to the investigation of a number of cases and to possible prosecutions. The report of the inquiry was published in June 1989 and recommended action as soon as possible. Soon after, in March 1990, the Government introduced into Parliament the War Crimes Bill, now the War Crimes Act.
The Bill proposed, in line with the recommendations of the inquiry, that our courts should be given jurisdiction over murder, manslaughter and culpable homicide committed as violations of the laws and customs of war during the Second World War in Germany or German-held territory by people who are now British citizens or resident in the United Kingdom, the Channel Islands or the Isle of Man.
The Act makes clear that such people may include those who were not British at the material time. I emphasise this because our courts already had jurisdiction over murder, manslaughter and culpable homicide committed abroad by British nationals, by virtue of Section 9 of the Offences Against the Person Act 1861 and Section 6(1) of the Criminal Procedure (Scotland) Act 1975, which was a consolidating statute incorporating the corresponding provision in Section 29 of the Criminal Justice (Scotland) Act 1949. Indeed, our courts already had jurisdiction over grave breaches of the 1949 Geneva Conventions, including wilful killing and torture, wherever in the world the offence was committed and whatever the nationality of the offender, by virtue of the Geneva Conventions Act 1957. But that Act did not apply to grave breaches committed before its enactment.
I should also emphasise that the War Crimes Act did not create any new offences. Violations of the laws and customs of war have long been criminal according to 1006 the general principles of law recognised by this country and all other members of the community of civilised nations. What the Act did was to make it possible to proceed against people who, at the time of the alleged war crimes, did not have British nationality and who would, therefore, have escaped liability for prosecution before the Act came into force.
The Bill was approved in another place on a free vote by a large majority—to be precise, by 273 votes to 60. Noble Lords will recall that the Bill was then denied a Second Reading in this House, in June 1990, by 207 votes to 74. The Government then reintroduced the Bill in identical form in another place in March 1991, where it was again approved on a free vote, and again by a large majority—by 254 votes to 88. It was subsequently denied once more a Second Reading by noble Lords, in April 1991, by 131 votes to 109. The Bill was enacted in May 1991 through operation of the Parliament Acts 1911 and 1949.
These details of the passage of the Act make clear that the legislation aroused strong feelings and passions—all of which have been illustrated again today. But the War Crimes Act is now law. The police and the prosecuting authorities do, therefore, have a clear remit and clear responsibilities to investigate and prosecute, as appropriate, where there is information that people now living in the United Kingdom committed war crimes in Europe during World War II. The Government stand fully behind the principle of the Act. The Government's declared policy is that those who committed most terrible crimes in Nazi-occupied Europe during the Second World War should not be able to use the privilege of residence in the United Kingdom to escape justice.
I should make clear that the Hetherington-Chalmers Inquiry was just that—an inquiry. It was not a criminal investigation. Investigations with a view to possible prosecutions were not necessarily appropriate or possible until the Act came into force. It came into effect on Royal Assent in May 1991. Investigations began later that month and it was understandable that the police and the prosecuting authorities should have wanted to proceed without delay. They had a formidable task ahead of them. The report of the Hetherington-Chalmers Inquiry included recommendations that investigations be undertaken in no less than 124 cases known to the inquiry team and, both before and after the coming into force of the Act, further information was received. The Government accordingly ensured that the police were resourced to undertake the necessary investigations. These were thought likely to take some time, not only because inquiries had in some cases to be made far away in unfamiliar territory, such as in parts of the former Soviet Union, but also because the events to be investigated took place a long time ago. But there was a clear expectation when the Act came into effect that information that war crimes had been committed should be acted on. As I said in response to my noble friend's Question on 28th November, there is no statutory time bar for laying charges of murder, manslaughter or culpable homicide in the United Kingdom and this applies no less where such acts are committed as war crimes.
1007 Since May 1991, the Metropolitan Police War Crimes Unit has investigated 369 cases in England and Wales. Of these, a further 112 people who were investigated are now dead. Further to my Answer last week to my noble friend Lord Campbell of Alloway, I understand that 23 people are now being investigated, of whom nine are being considered for prosecution by the Crown Prosecution Service. That leaves 234 cases which have been dropped.
There are no investigations at present in Scotland or Northern Ireland. I cannot, of course, say what decisions will be taken regarding prosecutions or when decisions will be reached. Such matters are for the independent consideration of the Director of Public Prosecutions and the Attorney-General. But the figures clearly show that substantial progress has been made with the investigations.
It is against that background that I turn to the detail of the Bill put forward by my noble friend, Lord Campbell of Alloway. The Bill has two substantive clauses. The first clause provides that no prosecutions shall be instituted for offences in relation to the War Crimes Act 1991 with effect from the coming into force of the Bill, if enacted. Such a provision, if it were passed into law, would render the War Crimes Act ineffective. The clause would be tantamount to repeal of the 1991 Act and would, therefore, mean that people who did not have British nationality at the material time would again be immune from prosecution.
Parliament did not intend at the time the War Crimes Act was enacted that the police and prosecuting authorities should have a prescribed period of time in which to undertake investigations into war crimes and bring charges as appropriate. That point was well made by the noble and learned Lord, Lord Archer. The police and prosecuting authorities were enabled to see their work through to a conclusion, and, as I said, they have already made substantial progress.
But in the context of Clause 1, I must return again to the point of principle to which I have already alluded. I question whether Parliament would ever wish seriously to contemplate a time bar on institution of proceedings for such serious offences as murder, manslaughter and culpable homicide. To do so would be viewed with the utmost concern and alarm. Clause 1 of the Bill does not, of course, propose introduction of a time bar for such acts generally but is nonetheless dangerous in that its effect would be to make an exception for people who did not have British nationality and committed uniquely horrible acts against humanity in Nazi-occupied Europe.
Clause 2 of my noble friend's Bill would confer jurisdiction on the Criminal Division of the Court of Appeal to consider appeals against refusals by the Crown Court to dismiss charges, on grounds of delay or abuse of process, by persons indicted for crimes by virtue of the War Crimes Act 1991. The function of the Criminal Division of the Court of Appeal is to hear appeals against convictions after trial. It is not to determine questions of jurisdiction during trial. That is not to say that where a person has been indicted, whether or not on charges in relation to the 1991 Act, he cannot challenge the indictment. He can, by applying for the proceedings to be stayed on the ground of abuse 1008 of process, including delay. If such an application were refused, there would be the opportunity to seek judicial review of that decision in the High Court. Like Clause 1, therefore, Clause 2 proposes that in war crimes matters we depart from general criminal law and procedure. Both clauses, therefore, if enacted, would set precedents whose effects would be far-reaching.
My noble friend Lord Campbell said that he aimed, through Clause 2, to put England and Wales on a par with Scotland. But I have to say to him that the different legal systems make such comparisons rather misleading. In particular, Scotland does not have the same system of judicial review as we have in this country.
I think I can fairly say that this Bill is not necessary to remove any possible injustice which might be thought to arise from operation of the War Crimes Act 1991. A prosecution will not be brought on a bare prima facie case. Rather, the test will be whether there is a realistic prospect of conviction. Furthermore, proceedings by virtue of the War Crimes Act may be instituted in this country only with the consent of the Attorney-General. If proceedings are instituted, then, as I explained, the Crown Court has inherent jurisdiction to stay those proceedings on grounds of abuse of process, including delay. But we have to think also of the enormity of war crimes and of those who suffered at the hands of the perpetrators of such crimes. The passage of time and the difficulties in investigating these crimes do not diminish the wrong that was done nor the need, now that the 1991 Act has been enacted, to investigate the evidence as in any other case of murder or manslaughter.
My noble friend Lord Dacre challenged claims that Parliament had agreed. Each time I mentioned the War Crimes Act I referred to it as having been passed by Parliament. It is, of course, true that the House of Commons voted overwhelmingly for it, as I said. But the Parliament Act is a proper part of our process. It was invoked and was accepted, and that ought to be an end to it. I believe that technically one can state that Parliament has had its say.
The question was also asked: could not the money be better spent or put to better use? I have to refer to the overwhelming commitment by the House of Commons and the invoking of the Parliament Act, including the provision of the necessary money for the war crimes legislation. The question of costs in bringing criminal procedures has to be weighed against the gravity of the offences alleged. There can be few, if any, graver allegations than those being dealt with under the War Crimes Act.
The protracted and complicated nature of the inquiry was known to Parliament when the Act was passed. It was also recognised that officers would have to visit scenes of crimes and witnesses in many different countries. It was known that it would be expensive and all matters were reflected in the budget that was set at that time. The same considerations apply to the Crown Prosecution Service which, of course, is the responsibility of my right honourable friend the Attorney-General.
1009 The noble Earl, Lord Attlee asked whether I could tell him the age of the youngest person under investigation. I am afraid that I am not able to give him that information but I shall write to him if it should become available to me.
My noble friend Lady Elles asked whether there was any common reason for decisions not to prosecute. There are no common reasons for decisions not to prosecute which can be identified. In some cases, there was a lack of credible eye-witness evidence of the alleged crimes; in others, no allegation of murder or manslaughter was made. In some cases, death has intervened. Each case currently under investigation will be considered on its merits.
This is a Private Member's Bill and the Government would not therefore propose to vote against it. But, as I have explained, the provisions of the Bill would have profound implications which the Government do not feel able to accept.
§ Lord Bridge of Harwich
My Lords, before the noble Baroness sits down, may I ask her one question on a matter of procedure? If I heard her rightly, she said that a decision of a trial judge in a Crown Court is subject to judicial review. My understanding is that that was the law, as pronounced by the divisional court, until the recent decision of your Lordships' House in its judicial capacity to which I was a party and in which we overruled that decision. Unless our decision has in turn been departed from, the present law, as I understand it, is that a decision on an application to stay a prosecution on the grounds of delay or abuse of process is not open to judicial review in the Crown Court. It was for that reason that I gave such wholehearted support to 1010 my noble friend's Clause 2, so that the ultimate responsibility for such a decision should rest with three judges and not with one.
§ Baroness Blatch
My Lords, I am incredibly diffident about taking on the noble and learned Lord, Lord Bridge, on the matter. My understanding is that the judicial review process applied. I shall, of course, write to the noble and learned Lord and make my reply available to the House when I have taken proper technical advice on the matter.
§ 9.7 p.m.
§ Lord Campbell of Alloway
My Lords, this has been a good-natured, balanced debate on a very serious subject. At this hour of night I believe all noble Lords would agree that it is-appropriate that I should thank all those who spoke for and against Clause 1—even the noble Lord, Lord Lester of Herne Hill, who perhaps when he reads the Official Report tomorrow may think that he went a bit over the top.
My heart bleeds for my noble friend the Minister, because the Home Office did not do its homework properly on Clause 2. Anyway, she could not have answered many of the arguments in my speech because obviously her brief was written before the speech was made.
All that having been said, we come to the point that there has been a balanced debate on Clause 1, and nobody has spoken against Clause 2. The two are not mutually dependent. They require separate consideration. I commend this Bill to the House.
§ On Question, Bill read a second time and committed to a Committee of the Whole House.
§ House adjourned at nine minutes past nine o'clock.