War Crimes Prosecutions (Hansard, 21 July 1994)

The Lord Chancellor
My Lords, the Metropolitan Police War Crimes Unit is continuing to investigate some 28 cases and has submitted interim reports in 10 of those to the Crown Prosecution Service. Police inquiries are not yet complete and no decisions can be taken about prosecution until they are. Accordingly, the authority of the Attorney-General has not been sought in any case to institute a prosecution under the War Crimes Act 1991.

§ Lord Campbell of Alloway
My Lords, I thank my noble and learned friend for his reply, but the delay involved is perhaps a little disappointing to some of us. We now know, as a result of the Written Answer on 1lth July, that no charges are to be preferred in Scotland on the advice of Crown counsel and, from the press release of 14th July issued by the Director of Public Prosecutions, on the advice of Treasury counsel, no charges are to be preferred in the Falklands affair. In 362 those circumstances, may I ask my noble and learned friend whether the advice of Treasury counsel has yet been sought on any of those cases under consideration for prosecution, we were told, on 27th June? If so, why has the advice not already been sent to Mr. Attorney?

The Lord Chancellor
My Lords, the situation so far as Scotland is concerned is as described by my noble friend. As regards the cases to which this Answer refers, as I said, the police inquiries are not yet complete. Therefore, the stage at which it is appropriate to have advice on whether there are proper prospects that would justify continuing the matter has not yet arrived. The Question relates to the authority of the Attorney-General and, as I said, unless and until the director has received a completed report from the police, it would not be appropriate for the Attorney-General's consideration to be requested.

§ Lord Boyd-Carpenter
My Lords, can my noble and learned friend say what is the annual expenditure on these activities?

The Lord Chancellor
My Lords, the annual expenditure has varied from year to year over the period for which these activities have lasted. As regards the police activity, it is anticipated that it will probably be less in the next year than in the immediately past year. The investigations are complicated and your Lordships would, I am sure, wish them to be thorough so that the answer that emerges would be one on which all noble Lords would find it possible confidently to rely.

§ Baroness Mallalieu
My Lords, given that any trial under this Act, if one eventually takes place, is likely to happen at least 50 years after the alleged offence was committed, and given that the trial judge will inevitably be asked by the defence to refuse to allow the trial to proceed because the period of delay presents difficulties in having a fair trial at all, can the noble and learned Lord tell us what is the longest period of delay between the commission of an offence and a successful prosecution of which his department is aware?

The Lord Chancellor
My Lords, I would need a very long memory to answer that question properly. I do not know that the precise length of the period between the commission of the offence and the date of the trial is in itself conclusive on the matter. Much depends on the circumstances. One can imagine a conscience coming alive even after quite a long time which would lead to a confession and which in all the circumstances of the case was reasonable and would justify a conviction. Of course, I accept that a length of time between the commission of an alleged offence and the date of the trial may be likely to produce circumstances which require careful handling in any trial. In the course of the speeches on the Bill that preceded this Act, a good deal of attention was paid to that and I believe that the justice system is capable of coping with it. Of course, if injustice were to result from the continuation of the trial, I feel sure that the judge would not allow the trial to proceed. These are 363 circumstances which any decision the Attorney-General might eventually have to take in the matter would have to take into account.

§ Lord Mayhew
My Lords, is the noble and learned Lord aware that more than four years have now passed since the publication of the Hetherington Report, on which the Government relied extensively when the Bill was before this House? If one of these cases is referred to the Attorney-General, can we be assured that he will consult with the authors of the report as to whether they are still of the opinion that proceedings would be justifiable under this Act?

The Lord Chancellor
My Lords, I am not sure that it would necessarily be right for the Attorney-General to consult with the authors of the report. That would be a matter for the Attorney-General. I would not think it right for me to seek to restrict those whom he might consult. But I would think it highly likely that, if the Attorney-General's view was required on a particular case, the police investigations to which I referred, which have been fairly extensive, would have superseded in their effect the investigations which Hetherington and Chalmers were able to carry out. After all, one of the purposes of the Act was to create a jurisdiction that would enable a proper police investigation of these matters to be undertaken. I would expect the results of that to supersede the preliminary investigation that Hetherington and Chalmers were able to carry out.

§ Lord Renton
My Lords, bearing in mind that it has been possible to complete these extensive investigations in Scotland within the three years since Parliament passed the Act, how is it that they are not yet complete and do not appear to be anywhere near complete in England?

The Lord Chancellor
My Lords, it is obvious that a number of circumstances could contribute to that. The precise nature of the evidence available might well have an effect, as might the number of cases in question, the need for the police unit—which is a reasonably specialist unit—to take the cases in some kind of order, and so on. All of those factors might contribute.
The Scottish criminal prosecution system has been accustomed to working under very strict limits, as my noble friend knows. It may just be that that also would have an effect on the speed with which these investigations were completed.

§ Lord Stoddart of Swindon
My Lords, can the noble and learned Lord say what is the age of the youngest person who is under investigation; what is the age of the oldest person under investigation; and how many of those who are under investigation have died during the course of the past four years?

The Lord Chancellor
My Lords, I have to say that I do not have those figures in my head. But I imagine that the youngest will be quite old and the most elderly will be even older. But I am not sure that that is altogether relevant to the question of whether they should be prosecuted. After all, I do not think that there is an age exemption related to the prosecution of crime. 364 If an elderly person commits a crime, that person will be surely as subject to prosecution as a younger person — although I can quite understand that in some circumstances age may be an extenuating factor.

§ Lord Hayhoe
My Lords, now that the Deregulation and Contracting Out Bill is making good progress through Parliament, can my noble and learned friend hold out any hope that its provisions will be used to get rid of this unwanted War Crimes Act 1991?

The Lord Chancellor
My Lords, certainly not. I do not believe for a moment that the scope of the deregulation Bill—which is, as my noble friend says, making excellent progress; and I wish it speedy progress for the remaining stages—would cover this matter. In any event, Parliament in its wisdom decided that a jurisdiction should be created to enable these investigations to be carried on. I should think that the right thing to do is to seek to complete them in as speedy an order as possible, having regard to the need for the thoroughness to which I referred earlier.

§ Lord Jenkins of Putney
My Lords, the noble and learned Lord has said that the period between the commission of the crime and the trial is not the only factor to be taken into consideration. It is, nonetheless, a very relevant and interesting factor. Under these circumstances, would he be prepared to consider again the question that was put by my noble friend, and perhaps place in the Library in Written Answer or letter form a reply that would enable the House to consider to what extent it is relevant in the matter that is under review?

The Lord Chancellor
My Lords, obviously I am very willing to undertake any investigations that may be necessary, subject to the fact that they would not involve disproportionate cost. For me to search out the records of all the cases that have ever taken place to see what was the longest time between the commission of the offence and the date of the trial would require rather extensive investigation. With all respect to the noble Baroness who asked the question—I think I know exactly why the question was asked—the point is whether the passage of time has so affected the nature of the evidence, and so on, that the interests of justice could not be served by a trial. That is a matter of principle. It does not depend precisely on the length of time in question in any particular case.

Noble Lords
Next Question!

§ Lord Boardman
My Lords, my noble and learned friend referred to the difficulty in estimating the annual amounts that had been expended. Can he say what is the total expenditure that has been incurred to date on these investigations?

The Lord Chancellor
My Lords, my recollection is that to the end of the last financial year the total expenditure was £5.2 million in Scotland and in England and Wales.