HL Deb 01 February 1995 vol 560 cc1570-80

7.55 p.m.

Lord Campbell of Alloway

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Campbell of Alloway.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE LORD SKELMERSDALE IN THE CHAIR.]

Clause 1 [Limitation]:

On Question, Whether Clause 1 shall stand part of the Bill?

The Earl of Harrowby

I was one of the people who voted in your Lordships' House against the Bill proceeding. Since then I have had an experience which I should like to explain briefly to the Committee.

Throughout most of the war I was in the Stoke City Field Regiment. However, I was too busy after the war ever to attend its reunions. When I retired three years ago, I attended a reunion for the first time. Despite an attendance of perhaps 150 ex-members of the regiment, I recognised not one of them after that 50 year gap. I believe that that exemplifies why noble Lords were so unhappy with the concept of the original Bill. It is interesting to speculate on why noble Lords' opinion was not accepted in another place. I believe that the reasons were two-fold. First, noble Lords have a greater spread of age; and that is an advantage. The spread is less concentrated in middle age than in another place. Secondly, noble Lords can exercise a more objective view without having to look over their shoulders. I trust that my noble friend's initiative regarding the Bill will receive a happier reception from another place than it received on the last occasion.

Lord Simon of Glaisdale

I, too, voted against the Second Reading of the Bill and spoke previously when the matter was debated on the Hetherington-Chalmers report. The question now is: what shall we do with the Bill? It seems to me that the desirable course is for the Attorney-General to follow the course that has been taken by the noble and learned Lord the Lord Advocate and simply drop the proceedings. Indeed, it would be anomalous if a different legal regime were instituted in this country from that in Scotland.

I had three reasons for opposing the Bill. First, in reality it was retrospective legislation, although not according to the rules which apply to statutory construction and which are not really relevant here. Secondly—it is a point which has been referred to by the noble Earl—I referred to the difficulties of identification and the consequence that it would be impossible to vouchsafe a fair trial to whoever was brought to trial.

However, I believe that there is a third reason. I refer to the danger of a backlash if the prosecutions proceed. We had warning of that as early as the Hetherington-Chalmers report. When those two public servants were holding a press conference and discussion the other side of Parliament Square, the British National Party, full of anti-semitism and xenophobia, was demonstrating against what was proposed. It seems to me that if the prosecutions go ahead there is a real danger of extremist parties cashing in in that way.

The question is: what is the easiest way to facilitate the Attorney-General taking the course which I suggested? It is rather like the rustic who was asked the way to Little Kirkhampton. He said: "If I were going to Little Kirkhampton, I would not start from here." If we want to arrive at the consummation which appeals overwhelmingly to the Committee, we would not start from where we are now. In my view, the best thing is to give the noble Lord, Lord Campbell of Alloway, his Bill here. I venture to suggest that it should then be dropped before it gets to the other place. If there were a challenge between the two Chambers, it would be difficult for the Attorney-General to take the course I have ventured to propose.

Lord Campbell of Alloway

I am grateful to my noble friend Lord Harrowby and the noble and learned Lord, Lord Simon. In my mind, there is no question or intention of there being any confrontation with another place. I am grateful to both speakers for what they said about the War Crimes Act and for their support for the Bill. I would be grateful if Mr. Attorney were to say, "There will be no prosecutions". If there are to be no prosecutions, there is no need for the Bill. I am the last person in the world to seek to bring pressure in that direction. At the moment, however, for the reasons I gave at Second Reading and shall not repeat, I have no option but to proceed. I commend the clause.

Clause 1 agreed to.

Lord Bridge of Harwich

moved Amendment No. 1: After Clause 1, insert the following new clause: ("Jurisdiction of Crown Court . For the avoidance of doubt it is hereby declared that on any prosecution for an offence under the War Crimes Act 1991 the Crown Court has jurisdiction to quash the indictment on the ground that, in the circumstances of the case, the lapse of time from the date when the offence was alleged to have been committed to the date when the prosecution was instituted—

  1. (a) is likely to cause substantial prejudice to the defendant in the conduct of his defence; or
  2. (b) is likely to make a fair trial impossible.").
The noble and learned Lord said: In moving this amendment, I wish to make clear at the outset something that is self-evident anyway. The proposed new clause and Clause 2 as I propose to amend it are wholly independent of Clause 1. They have utility of necessity only so long as the jurisdiction to prosecute offenders for alleged offences, by virtue of the jurisdiction conferred by the War Crimes Act 1991, remains in existence and so long as there is still a prospect that that jurisdiction will be invoked.

I commend the amendment on the premise—and for present purposes I accept it—that it is at least theoretically possible in some cases to have a fair trial of a person who is charged with an offence, notwithstanding that more than 50 years have elapsed since the date when the offence is alleged to have been committed. However, if that is possible in some cases—and I venture to hope that no one will dispute the proposition—it will be manifestly impossible in others. Perhaps that will be so in the great majority of cases.

If a distinction is to be made between those cases which can fairly be tried and those which cannot, it will have to be made by the judiciary. If this House had done as I urged it to do when the War Crimes Bill came before it for the second time and had given the Bill a Second Reading, I should have thought it appropriate then to move an amendment to the same effect as that which I now propose. This is the most important amendment that I hoped to have the opportunity to propose then. Now the Bill proposed by my noble friend Lord Campbell presents at least the theoretical opportunity—I do not know that it is any more than that—for the omission to be remedied.

The amendment makes clear the scope of the court's jurisdiction, on a prosecution under the War Crimes Act 1991, to stay the proceedings on the ground of prejudice by delay. As the 1991 Act stands, there seems real doubt as to the scope of the jurisdiction. In the absence of any statutory period of limitation applying to prosecutions on indictment, the citizen's safeguard against stay of prosecutions rests in the discretion of the court to stay a prosecution on indictment, to quash the indictment, halt the proceedings—whatever phrase one uses does not matter—on the ground that the accused has been so prejudiced by delay that the matter should not proceed. The other side of the coin is that it is not possible to have a fair trial.

The normal ground on which such an application of common law proceeds is that of prejudice by delay. But, as I understand the law, it is also necessary to show to some extent that the prosecution bears responsibility for that delay. To take an obvious illustration, if a murder victim has been so successfully buried in a hidden place that the crime does not come to light until more than 20 years later, the court would give short shrift to an application on behalf of the defence for a stay of proceedings on the ground that he had been prejudiced by the delay in bringing the prosecution.

My real concern about the operation of the 1991 Act as it stands is that the court may be invited to say—and it is an arguable proposition—that since there was no jurisdiction to bring a prosecution for any of the crimes before the 1991 Act reached the statute book, the prosecution is in no way at fault in having failed to bring the prosecution earlier. Therefore, the delay prior to the date when the Act came into force should be disregarded. The sole purpose of the amendment—and it is purely a declaratory amendment—is to remove that doubt, to make it clear that such an argument is not acceptable. It is to make it clear that the whole period of delay from the date when the offence is alleged to have been committed is to be taken into account by the court in deciding whether it has substantially prejudiced the defence and rendered a fair trial impossible. That was the view of the effect of the statute which was commended to the House on behalf of the Government when the Bill was first introduced. In moving the Second Reading of the War Crimes Bill on 4th June 1990, in reply to a point that was made by my noble friend Lord Campbell, the noble Earl, Lord Ferrers, said: I would only remind him of this: under the law as it stands, it is possible for the defence to apply to have a charge dismissed on the ground that the length of time which has elapsed since the offence occurred has made it impossible for the accused to be able to gather together the evidence which he needs for his defence and thereby be sure of obtaining a fair trial. There is nothing in the Bill which alters that position in any way. It will remain open to the judge to prevent a case from proceeding if he believes that a fair trial will be impossible".—[Official Report, 4/6/90; col. 1085.] I know that as the law stands now—it was not so when the noble Earl, Lord Ferrers, pronounced those words—by virtue of the decision of this place in the case of Pepper v. Hart (a decision in which, as I recall, there was only one dissenting voice) the court may now resort to Hansard as a means of resolving any uncertainty as to Parliament's intention in enacting a particular statute. My submission to the Committee is that it clearly cannot be right in principle to rely on reference to Hansard, even if it is possible, to clarify an uncertainty. The proper course is that the statute should declare clearly and unambiguously on its face the intention of Parliament as to the scope of the jurisdiction that it confers upon the court. That is precisely what this amendment sets out to do. I beg to move.

Lord Campbell of Alloway

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

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

8.15 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

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

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

I will not take up the invitation that my noble and learned friend seemed to tempt me with to reopen any questions about Pepper v. Hart. I entirely agree with him that it is not a wise principle to rely on that decision, however many of my noble and learned friends supported it and however unique was the dissenting voice. I am sure it would be agreed on all sides that it would be better to make the matter clear. For that reason, my noble and learned friend will remember that I was of the same view as he in relation to an amendment that might have been put forward if this House had granted a Second Reading to the original Bill when it came here for the second time. However, that particular opportunity did not open to my noble and learned friend. The result is that he has taken it up now.

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

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

Lord Bridge of Harwich

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

On Question, amendment agreed to.

Clause 2 [Jurisdiction of the Court of Appeal]

Lord Bridge of Harwich

moved Amendment No. 2: Page 1, line 8, leave out from ("on") to the end of line 12 and insert ("any ground referred to in section (Jurisdiction of Crown Court) above an appeal shall lie to the Court of Appeal (Criminal Division) from the decision of the Crown Court granting or refusing the application."). The noble and learned Lord said: In moving this amendment I make clear, as is apparent on the face of the amendment, that its effect is to render a decision by the trial judge in a Crown Court either to grant or to refuse an application to stay—I use that phrase because I cordially agree with my noble and learned friend the Lord Chancellor that it is the commonly used phrase, although it has the same effect as an order to quash—a prosecution on the ground of delay amounting to an abuse of process. The effect of the amendment is that such a decision would be open to the Court of Appeal. It was thought—indeed it was believed to be the law at the time when the War Crimes Act was passed—that such a decision was open to judicial review.

That proposition was advanced in the course of the debate on the Second Reading of this Bill by the noble Baroness, Lady Blatch. I ventured to question it and she was good enough subsequently to concede in correspondence that the view had become out of date. The judicial review of a decision by a Crown Court judge is subject to Section 29(3) of the Supreme Court Act 1981, which precludes any judicial review of a decision made by a Crown Court in exercise of its jurisdiction in matters relating to trial on indictment". Unfortunately, over the years the courts have taken different views as to the effect of that provision. In the case decided in 1991 by the Queen's Bench Divisional Court —surprisingly, the Committee may think—the conclusion was reached that an order staying proceedings on indictment on the ground that they amounted to an abuse of process was subject to judicial review on the basis that such a decision was not in the matter relating to trial on indictment.

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

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

If a prosecution under the Act of 1991 is ever brought, it will be because the Attorney-General has authorised it and has taken the view that a fair trial is possible. The defence is almost bound to apply to have it stayed and to contend that a fair trial is not possible. The decision is likely to attract great public interest and to be a highly controversial and sensitive one. In my submission, it would not be right that the burden and responsibility of pronouncing the last word in such circumstances on the question of whether or not the prosecution should go ahead should rest with a single judge. It would be right that it should be subject to an appeal to the Court of Appeal (Criminal Division). As I said, that is what this amendment would effect. I beg to move.

Lord Campbell of Alloway

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

As I am addressing the Committee, perhaps I may deal with a serious misunderstanding that arose—I have given notice that I would raise this matter—between the Home Office and myself on Clause 2. After Clause 2 was considered at Second Reading, the Home Office wrote (the letters are in the Library): Alan Campbell argued that it was needed because, in his view, such prosecutions should never be brought in the first place". I did not so argue. I have never argued that prosecutions should never be brought in the first place. The letter goes on: My response to Alan's point is simply that I do not accept his general proposition that war crimes prosecutions should never be brought". I have never on this Bill or any other Bill in any other circumstances ever made such a proposition or so argued. I asked for an unqualified retraction and apology, which has been given. I am content to accept that it was not intended to state in this letter what was so plainly stated. I am obliged to the Chamber for allowing me to correct the record.

The Lord Chancellor

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

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

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

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

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

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

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

8.30 p.m.

Lord Bridge of Harwich

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

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

There was a point not specifically addressed by my noble and learned friend the Lord Chancellor. It was the most powerful point concerning the desirability of introducing a right of appeal in war crimes cases; that is, if it is not introduced then the position of the single judge, the trial judge, in having to make such a sensitive and controversial decision—whichever way he may make it—will be invidious. I beg to move.

On Question, amendment agreed to.

Clause 2, as amended agreed to.

Clause 3 [Short title and extent]:

Lord Bridge of Harwich

moved Amendment No. 3: Page 1, line 15, leave out from ("(2)") to ("only") and insert ("Sections (Jurisdiction of Crown Court) and 2 of this Act apply"). The noble and learned Lord said: Amendment No. 3 is a minor and purely consequential drafting amendment which follows from the two amendments already accepted. I beg to move.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

House resumed: Bill reported with amendments. House adjourned at twenty-two minutes before nine o'clock.