HL Deb 02 March 2000 vol 610 cc677-91

4.30 p.m.

Lord Williams of Mostyn

My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable and learned friend the Solicitor-General on the role of the Crown Prosecution Service in respect of Senator Pinochet.

"The Crown Prosecution Service, as prosecuting authority for England and Wales, has today advised the Metropolitan Police Service that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would not be admissible in a criminal prosecution in England and Wales and could not be put into admissible form without a full police investigation. On the material presently available to the CPS therefore, there is no realistic prospect in this jurisdiction of convicting Senator Pinochet of any criminal offence.

"The CPS has also advised the Metropolitan Police Service that, in view of the independent medical report on Senator Pinochet commissioned by the Home Secretary, and taking into account representations made to the Home Secretary concerning the report, no court in England and Wales would allow a trial of Senator Pinochet to take place, whatever the evidence.

"Following that advice the Metropolitan Police Service has decided that no purpose would be served in seeking to effect the arrest of Senator Pinochet.

"These decisions are necessary because of Article 7 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that if a state does not extradite, it must consider whether to prosecute the person itself.

"Accordingly, following the Home Secretary's decision today not to extradite Senator Pinochet to Spain, the Spanish extradition papers were submitted formally to the CPS as the independent prosecuting authority for England and Wales.

"The CPS in turn formally referred the papers to the Metropolitan Police Service, which is responsible for investigating offences and deciding whether to arrest or charge people.

"In fact, the papers had previously been supplied to the CPS and the police and had been carefully studied by them, and so both the CPS and the police are in a position today to announce their decisions. But before I say more, let me set out the CPS's involvement in this case.

"First, there has been its role as agent for the Kingdom of Spain. That arose following Senator Pinochet's arrest on 16th October 1998 pursuant to a warrant issued by the fifth central magistrates court in Madrid. So, on 18th October 1998, the Crown Prosecution Service commenced acting as agent on behalf of the Kingdom of Spain in the extradition proceedings. It has continued to act for the Kingdom of Spain throughout the extradition process.

"In its role as agent for the Kingdom of Spain, the CPS has acted in accordance with the instructions of the requesting state. This is in accordance with longstanding reciprocal arrangements common between this jurisdiction and other countries. In doing so, it has been quite independent of the United Kingdom Government.

"In performing its role as agent for the Kingdom of Spain, the CPS has given confidential legal advice on the extradition proceedings and received instructions.

"I turn now to the separate, and distinct, function of the CPS in this matter, which is the main focus in this Statement—that is, as the independent prosecuting authority for England and Wales. Its involvement in this regard has arisen in two ways.

"First, in October 1998, two firms of solicitors, acting for a number of individuals, applied to the then Attorney-General for Law Officer consent to prosecute Senator Pinochet in this jurisdiction. This was for offences of torture contrary to Section 134 of the Criminal Justice Act 1988, and for offences of hostage taking contrary to the Taking of Hostages Act 1982. The papers in one of those applications was also copied by the solicitors to the Metropolitan Police Service, which in turn sought the advice of the CPS as prosecuting authority. In these circumstances, the then Attorney-General deemed it appropriate to liaise with the CPS before reaching a final conclusion on the applications for Law Officer consent to prosecute. The Attorney-General also received advice from senior Treasury counsel. Subsequently, the Attorney-General advised the solicitors: that decisions on whether or not to grant Law Officer consent to prosecute are made by applying the tests set out in the code for Crown prosecutors; that the legislation criminalising torture and hostage-taking is not retrospective—a point later confirmed by a decision of the Appellate Committee of the House of Lords; and that the material submitted in support of the applications contained insufficient admissible evidence against Senator Pinochet to justify the granting of Law Officer consent to prosecute for either offence.

"Consent to prosecute was, accordingly, refused.

"I should add here that a third firm of solicitors, acting for a number of Chileans, applied last week for my consent to prosecute Senator Pinochet for offences of torture. That application has been carefully considered and the advice of counsel obtained. Again, the code for Crown prosecutors was applied to the decision-making process. The first requirement of the code is that there should be sufficient admissible evidence for there to be a realistic prospect of conviction before a prosecution may follow. The application contained no evidence of a kind admissible in this jurisdiction and I accordingly declined to grant my consent.

"The second function of the Crown Prosecution Service, as prosecuting authority, has been to consider the case for a prosecution of Senator Pinochet in this jurisdiction under Article 7 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. I have already outlined that provision.

"The CPS and police recognised that Article 7 might come into operation in respect of the Spanish extradition papers. Therefore, in March and April 1999, to prepare for that contingency, the CPS obtained copies of all the relevant Spanish extradition papers. That was in its capacity as the prosecuting authority for England and Wales. The Metropolitan Police Service, as investigating authority, was also supplied with a copy of those papers. All this was done with the agreement of the Kingdom of Spain and the Home Office.

"The Spanish extradition papers were allocated to separate lawyers in the CPS from those acting for the Kingdom of Spain. The CPS's provisional conclusion was that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would not be admissible in a criminal prosecution in England and Wales; and that the material could not be made admissible without a full police investigation. The CPS advised the police along these lines. Whether or not the Metropolitan Police Service institutes a full investigation in this or any other case is a matter for it to decide.

"It may help the House to understand the CPS's provisional conclusion if I explain that in European extradition proceedings it is not necessary to bring evidence before a court to show that a person has committed the offences of which he or she is accused. All that is necessary is that the court here must be satisfied that the allegations amount to an extradition crime and that the formal request complies with the requirements of the Extradition Act 1989 and the European Convention on Extradition 1959. This explains why the CPS has come to its provisional conclusion that, in the absence of a full investigation by the police, there is no admissible evidence for the purpose of a prosecution here.

"In addition to this evidential consideration, the CPS, again in its role as independent prosecuting authority, received a copy of the medical report prepared by the independent experts commissioned by the Home Secretary. This was in January this year and with the consent of Senator Pinochet. The CPS has also seen the representations made to the Home Secretary concerning that report. The report and subsequent advice makes it clear that Senator Pinochet's ill health is now such that he would not be able to defend himself properly in any criminal prosecution brought in this country. The CPS's provisional conclusion in the light of this material was that no court in England and Wales would allow a trial of Senator Pinochet to take place because of his ill health, whatever the evidence. Again, the CPS advised the police of this.

"In reaching its provisional conclusions, the CPS consulted me. I agreed with them, after myself taking the best independent legal advice available.

"I should add here that my noble and learned friend the Attorney-General has not involved himself as Law Officer in this case. He and I agreed that his previous patronage of Redress, from which he resigned on taking ministerial office in May 1997, meant that it would be more appropriate if I handled the case. The solicitors acting for Senator Pinochet were advised of this in September last year.

"Following today's formal submission of the Spanish extradition papers to the CPS under Article 7(1), the CPS has confirmed its provisional conclusions: first, the material in the possession of the CPS would not be admissible in any criminal prosecution in England and Wales and it could not provide a realistic prospect of conviction; secondly, an investigation, for which the police are responsible, would be required to gather evidence admissible in this jurisdiction; and, thirdly, whatever evidence might be available, no court in England and Wales would allow a trial of Senator Pinochet to take place in view of his ill health. I agree with these conclusions.

"Accordingly the CPS has not applied for Law Officer consent to prosecute Senator Pinochet for torture in respect of the Spanish extradition material. The Metropolitan Police Service and Senator Pinochet's lawyers have been advised of the CPS's conclusions. The Metropolitan Police Service, which has taken its own legal advice, has decided not to arrest Senator Pinochet.

"The House will also be aware that on 11th and 13th November and 15th December 1998, my right honourable friend the Home Secretary received requests for the extradition of Senator Pinochet from the Confederation of Switzerland, the Republic of France and the Kingdom of Belgium. Further requests were received from the Republic of France on 4th February 1999 and from the Kingdom of Belgium on 12th October 1999.

"On 9th December 1998 the Home Secretary decided not to issue an authority to proceed with regard to the requests from France and Switzerland. On 27th January 1999 the Home Secretary decided not to issue an authority to proceed with regard to the request from the Kingdom of Belgium. On 22nd February 1999 and 19th November 1999 respectively the Home Secretary decided not to issue an authority to proceed in respect of the second French and second Belgian requests.

"Following the Home Secretary's decisions, the extradition papers were submitted to the Crown Prosecution Service as the prosecuting authority for England and Wales in accordance with Article 7(1) of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The CPS in turn referred the papers to the Metropolitan Police Service to enable the investigating authorities to consider them. The CPS also advised the police that the allegations contained in the Swiss, both French and both Belgian requests did not disclose offences which could be tried here since the conduct alleged in each of the requests occurred before the relevant legislation came into force.

"Accordingly the CPS will not apply for Law Officer consent to prosecute Senator Pinochet for torture in respect of the Swiss, French and Belgium extradition material.

"In performing its role under Article 7 of the convention in respect of the Swiss, French and Belgian material, the CPS has also taken into account the medical report commissioned by the Home Secretary and the representations made to the Home Secretary concerning Senator Pinochet's medical condition. The CPS has concluded that no court in England and Wales would permit a trial of Senator Pinochet to take place in these circumstances, whatever the evidence. The CPS has consulted me about these matters and I agree with the CPS conclusions".

My Lords, that concludes the Statement.

4.43 p.m.

Lord Cope of Berkeley

My Lords, I warmly thank the noble and learned Lord the Attorney-General for repeating the Statement and for being willing to take questions on it, particularly in view of the fact that he had debarred himself, as it were, from the consideration for reasons which we understand entirely and accept.

I am a layman in legal matters, although I am not without helpful advice. I think that advice from A P Herbert would have been valuable in this case. As I understand from the Statement, at no time have the Crown Prosecution Service, the Metropolitan Police or the Solicitor-General considered that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would be admissible in a criminal prosecution in England and Wales, and that the material stood no prospect of convicting Senator Pinochet of any crime in the English courts. It would be helpful to know from the noble and learned Lord—because it was not revealed in the Statement—when the CPS first reached the view that no prosecution could succeed and why these proceedings could not have been brought to a conclusion at that point. On the assessment by the CPS of the evidence and the other material available, if the action was bound to fail then it should have been brought to a conclusion at that stage.

I realise that the CPS was acting as agent for the Kingdom of Spain in large part. After all, a lawyer owes it to his client not to proceed if, in his judgment, his case cannot succeed. He should not accept instructions to persist in something that is bound to fail.

I understand that no evidence is required to succeed in extradition proceedings alone—only allegations and the fact that the charges are covered by the relevant legislation. I should like to ask how it could ever be possible in an extradition case, where no evidence of that kind is produced, to prosecute within the United Kingdom.

I should like to ask about the legal costs of the whole affair. As I understand it, the costs total several million pounds. I am not clear how much of that will fall on the British taxpayer. Has the CPS been paid, or will it be paid, by the Kingdom of Spain for the work that it did in the role of agent?

This whole matter, from the legal point of view as well as in terms of the political and other considerations, will clearly be the subject of much further study by many people. Do the Government intend to publish in some form a full account of the affair? The Government have given quite a lot of information today. It would be helpful if a full, authorised account from the point of view of the Government could be set out, if only as a preliminary to the consideration of extradition law which is to take place. I would welcome such an account in the light of all the complexities of this particular case.

4.49 p.m.

Lord Thomas of Gresford

My Lords, I thank the noble and learned Lord the Attorney-General for repeating the Statement. I express my own relief that the Crown Prosecution Service has clearly acted professionally and properly in this matter and kept separate its functions as agent of Spain, on the one hand, and in its own capacity on the other.

While welcoming the Statement, there are certain lessons to be learnt. I am glad that there is to be a fresh look at extradition law. I wish to make three points. First, in cases of universal jurisdiction such as conspiracy to torture, as this one was, surely, until there is the establishment of the international criminal court, the United Kingdom should either accept the responsibility itself of prosecuting people who have committed these crimes—as I suggested to the House in July 1999 when last we debated this matter—or, alternatively, should refuse requests for extradition to jurisdictions with no greater claim than our own. I found it unedifying that countries should queue up to make extradition requests in this way.

Secondly, the Statement says that there was no admissible evidence for prosecution in this country. What exactly does that mean? The allegations were not bare allegations. They could not have succeeded, as they did succeed before the metropolitan magistrate, unless there was a statement of facts that demonstrated that an extradition crime had been committed. Those facts could readily have been turned into admissible evidence for the courts of this country with not a great deal of investigation by the Metropolitan Police. Was it the fact that the allegations were simply hearsay—simply second-hand evidence—or were there not, as I am sure there must have been, witnesses to these facts who were identified and who could have given first-hand evidence in the courts if an investigation had been carried out to turn their evidence into a form which is acceptable in every court in this country? Could that evidence have been obtained easily? Did the Crown Prosecution Service ever ask the police to investigate along those lines?

My third point relates to the medical issues. If this case demonstrates anything, it demonstrates that there should be transparency on medical issues. Senator Pinochet is certainly not unfit to travel, having regard to the way in which he left this jurisdiction within a matter of minutes of the decision being announced. If there was an approach by his advisers in October last year, as the noble Lord, Lord Bassam of Brighton, said, why was an undertaking ever given by the Home Secretary that the results of that medical examination, which the senator requested, would not be published? That would not happen in the ordinary courts of this country because, where there is an issue of fitness to plead that is in any way controversial, it is not decided by a Minister; it is decided by a jury which is sworn to try the particular issue as to whether a person is fit to plead. The medical evidence can be examined, looked at and published for all to understand it. It is only in circumstances where there is clearly a medical problem—I recall only one such case where a person was about to die—that the Attorney-General can issue a nolle prosequi, which puts an end to the proceedings. Surely the lesson of this is transparency on medical issues.

4.52 p.m.

Lord Williams of Mostyn

My Lords, perhaps I may explain some of the apparent confusions which have arisen. There are a number of distinct areas which need to be considered separately. The first is the matter with which Mr Straw, as Home Secretary, had to deal; and that is in the context of the Extradition Act 1989, which was brought in by the previous government. As the noble Lord, Lord Cope, rightly observed, what is required for the purposes of court proceedings in this country is relatively limited; that is to say, there has to be the assertion of the fact that a relevant offence has been committed together with an adherence to the appropriate formal procedures. That having been done, the magistrate himself has very little discretion, if any, in the context of the Extradition Act 1989.

There has been a good deal of misapprehension, partly arising out of the long, drawn-out proceedings which were carried out on an entirely different basis altogether; namely, the issues ultimately decided by the Appellate Committee of your Lordships' House as to whether or not state immunity or any similar legal concept could apply to Senator Pinochet in the circumstances of the present case. It is well known to your Lordships that the Appellate Committee on the second occasion came to the conclusion that Senator Pinochet indeed had no continuing immunity in certain circumstances. That is one set of legal circumstances with which the Home Secretary has to deal. That has nothing at all to do with whether there is admissible evidence under the rules of evidence and the rules of justice in this country as to whether Senator Pinochet might be tried here.

The important matter is this. By virtue of Article 7(1) of the convention, if the requested state—the United Kingdom in this instance—does not extradite, there is an automatic obligation on the national authorities to consider the prosecution internally within this jurisdiction. So it is not a question of "Does the CPS want to pay any attention?" or "Do the Metropolitan Police want to inquire?" There is an obligation on the United Kingdom, by virtue of Article 7(1) of the convention, to consider these matters. That is exactly the point of the letter that was sent from my office to Senator Pinochet's solicitors on 1st September last year, pointing out that I would disqualify myself from any consideration relating to this matter because I had previously been patron of Redress, an organisation which tries to help people who have been tortured by state engines of oppression. I decided to disqualify myself. But in that letter we pointed out to Senator Pinochet's solicitors—I think rightly and I hope your Lordships will think fairly—that if there were to be a non-extradition, the Article 7(1) obligations would still apply. My office took the view—I have no doubt rightly—that it would not be fair to anyone for there to be a decision against extradition and then for the Article 7 position, perhaps if his lawyers had not considered it—I did not know whether they had or they had not—to be sprung upon them.

No admissible evidence in the context of our country's jurisdiction is required for the extradition proceedings. Your Lordships may have views as to whether that is right or wrong. I repeat: the provision was brought in by the previous government. As the Home Secretary said in the Statement read out by my noble friend Lord Bassam, it is 10 years ago now and it needs to be looked at for all kinds of reasons. The Home Secretary is setting up that review.

As I said when repeating the Statement made by my honourable and learned friend the Solicitor-General, the Metropolitan Police Service makes its own decision about whether to investigate. It does not go on the basis of any instruction from the CPS. The facts were these. Of the material available, from whatever source, there was nothing that was available and admissible in this jurisdiction which could lead to the sensible prospect of a successful prosecution. The code for Crown prosecutors has a two-fold test. First, is there a realistic prospect of conviction? Secondly, are there public interest considerations which militate against a prosecution? There was no admissible evidence which could have formed the basis of a realistic prospect of conviction in this jurisdiction. The public interest matter did not therefore arise. But since the CPS knew the conclusion of the medical team, which was referred to in some detail by noble friend Lord Bassam, it rightly came to the view that no court in England and Wales would allow a trial to continue.

There are a number of circumstances in which a prosecution can be halted. I have the right to enter a nolle if I want to. A jury can be empanelled, as the noble Lord, Lord Thomas of Gresford, said. Frequently these days, as your Lordships will know, applications are made to judges to stop cases on the basis of abuse of process because of the nature of the defendant's ill health. So it is not simply a jury decision. The judge can decide; I can decide; or a jury can decide.

Questions were raised about the CPS and whether or not a lawyer has a duty not to follow instructions which, to the lawyer in his professional, ethical capacity, appear inappropriate. That is not the situation. The CPS acted, as the CPS always does and has done for a number of years, as the agent for a foreign government; in this case, the Kingdom of Spain. The lawyers who dealt with the other issues were completely separate and distinct. They were not acting for any client; they were discharging their public duty as part of a statutory body set up within this jurisdiction.

I was asked whether a full account could be given. An extremely full Written Answer—I appreciate that your Lordships may not have had the opportunity to see it—has been lodged. It bears some study. A good deal of the chronology is well known. All I can say is this. We must all ask ourselves, if we have anything to do with the administration of justice: did we discharge our duties properly? I have no doubt at all that my colleague the Solicitor-General and the Director of Public Prosecutions in charge of the Crown Prosecution Service behaved immaculately and discharged their legal duties without fear or favour.

The noble Lord, Lord Cope, asked about costs. I am not in a position to give the final figure. Not all the bills have been received. The best information I had earlier was that £600,000 had been run up. I do not pretend for a moment that that is a definitive figure. If one wants a goal as valuable as the rule of law applied internationally, it is sometimes necessary to pay.

5 p.m.

Lord Waddington

My Lords, does the noble and learned Lord agree that, after this unfortunate history—which, to put it at its lowest, has not exactly improved relations between this country and Chile—it is important to see whether we can learn some practical lessons? If, in the future, it comes to the knowledge of the Government, through diplomatic channels, for instance, or as a result of a request for VIP treatment, that a politician from a country where human rights abuses are known to have occurred, such as China or Russia, is about to enter this country, will the Government first inquire of the CPS and others whether an arrest warrant is a serious risk? If there is such a risk, will they advise the person not to come? Or will the Government welcome the person into the country and then have him arrested? It is an important question.

Lord Williams of Mostyn

My Lords, of course it is an important question. It is an important political question. I must stress to your Lordships that I do not act politically in this arena—nor should I; nor have any of my predecessors. I act as an independent legal officer. I make no decisions of the sort queried by the noble Lord. He wondered whether or not the Foreign Office or the Home Office might tip off someone coming into this country. But that would seem to be the very kind of collusion that he and the noble Lord, Lord Cope, deprecated earlier. I stress that my work is confined to the legal role which is placed by statute on the Attorney-General. I have nothing to do with whether or not people are tipped off, nor indeed whether people are arrested.

The noble Lord, Lord Waddington, used the phrase, "the unfortunate history". I do not think that history will regard this matter as unfortunate. I think the verdict of history will be that Jack Straw behaved immaculately well, and that although the legal proceedings were lengthy, they upheld something that matters: that, however powerful you are, and to whatever elevated status you have aspired, if you commit monstrous crimes the law will not be silent.

Lord Alton of Liverpool

My Lords, surely the noble and learned Lord will accept that, notwithstanding the impeccable credentials of the Attorney-General and the integrity of the Home Secretary, the sight of General Pinochet returning to Chile today will not send a message that dictators will be brought to trial and will find no corner in which to hide. Does he agree that, since 1948 and the creation of the convention on genocide and torture, the practical problem has been that no individual country has been properly able to police these kinds of cases, and that this saga has again demonstrated our impotence when it comes to dealing with such matters? Will the noble and learned Lord therefore reflect for a moment on the need to create an international court that will deal with these matters and on the failure so far, not least of the American administration, to ratify the creation of an international court? Where do Her Majesty's Government now stand in that process?

Lord Williams of Mostyn

My Lords, I agree with the spirit of the noble Lord's remarks, as I so often do; however, I do not agree with his conclusion. I believe that those who, it is alleged, were monstrously treated, had their relatives taken away from them—or, in that agreeable phrase, whose relatives were disappeared—ought to have some comfort. They will have immediate disappointment—of course they will—and there is no solace I can offer them, except from the proposition, I repeat, that; however mighty you are, in the end the law will not remain silent. That is of no immediate consolation. I recognise that, I hope with a decent humility.

International law is developing very quickly in this area. My noble friend Lord Bassam pointed out that in the Queen's Speech we gave our undertaking to become a full party in the International Criminal Court. I do not think that anyone who has heard Robin Cook speak on this matter doubts his commitment. At present, there is a tribunal sitting in respect of allegations of atrocities in Rwanda, with convictions having been obtained. There is a tribunal on atrocities sitting in the former republic of Yugoslavia, with convictions having been obtained. Sanctions are available in the international criminal justice system. We have legal duties that do not depend on the politics of the moment. I know that the noble Lord will agree. I mentioned Article 7. Under those duties, if extradition fails, we have to consider prosecution. Assertion and allegation, statement of facts, are not the same as admissible evidence.

Perhaps I may bring one final point into the equation. If the rule of law matters, even disagreeable people, even guilty people, are entitled to benefit from it. It is possible that Senator Pinochet was guilty of these offences; he has not been tried. It is possible that he is not guilty of these offences, he has not been tried. But guilty or not guilty, if he is not fit to stand trial it is abusive of the legal process to make him stand trial.

Lord Lamont of Lerwick

My Lords, perhaps I may ask the noble and learned Lord the Attorney-General about the role of the CPS as agent for the Kingdom of Spain. Does he agree that it is important that the CPS acts only as the agent of the Kingdom of Spain and is not proactive as a prosecution authority? In that context, can the noble and learned Lord explain why the CPS did not confine itself simply to meeting representatives of Judge Garzon, but held meetings with Joan Garces, the political secretary of Salvador Allende? Why was that necessary?

Lord Williams of Mostyn

My Lords, I do not know. As I said, I disqualified myself even from looking at any papers. I may be the only person in this House who has not read the medical reports on Senator Pinochet because, however they might have come to me, I thought that it was not right to involve myself in them, having given the undertaking that I did to Senator Pinochet's solicitors.

I believe that the CPS acted rightly within its remit as agent for the Kingdom of Spain. That is a longstanding and well-known arrangement between sovereign jurisdictions and the CPS here. When it acts as a proactive prosecution authority—a phrase that has been used by the noble Lord, Lord Lamont—that is in a separate category, and I assure the House that wholly different lawyers dealt with those matters.

Lord Lamont of Lerwick

My Lords, will the noble and learned Lord ensure that I receive an answer to my question?

Lord Williams of Mostyn

My Lords, of course; I can certainly ask my colleague the Solicitor-General, who had more knowledge of this matter on a day-to-day basis. If he does not know the answer—I do not know whether the noble Lord's suggestion is factually right—I shall make sure that I obtain the answer. I shall provide it to the noble Lord as soon as may be and will place a copy in the Library.

Lord Richard

My Lords, will my noble and learned friend confirm one point? Is it the case that, in relation to extradition proceedings, the evidence that it is necessary to produce for the purpose of those proceedings does not have to be admissible evidence in the sense that we would use the term if, say, a defendant were standing trial here? As I understand the position, there was not sufficient evidence available to the CPS for anyone to be tried here; however, there was sufficient for the purpose of the extradition proceedings. In that respect, therefore, the CPS behaved perfectly properly.

Lord Williams of Mostyn

My noble friend is absolutely right. I do not think that any court that has examined this matter has come to a contrary conclusion. It was found that the extradition proceedings were correct; that there was no appropriate or relevant immunity for Senator Pinochet. Therefore, the whole conduct following the arrest has been upheld by the courts in our jurisdiction. However, my noble friend is quite right. That does not necessarily make the background material admissible, bearing in mind the rules of evidence that we have in our system.

Lord Simon of Glaisdale

My Lords, as one who presumes to think that both Law Officers and the Crown Prosecution Service acted with propriety in this case, arising out of a point made by the noble Lord, Lord Lamont, can consideration be given to the dual role of the CPS which may give rise to misunderstanding; namely, as agents for a foreign government and its traditional function as a prosecuting authority in this country?

Lord Williams of Mostyn

My Lords, your Lordships will be aware that I always pay very careful attention to the observations of the noble and learned Lord. His suggestion may be an avenue usefully to be followed. Substitute arrangements would have to be made. The present arrangements are well known, but that does not necessarily mean that they are perfect in every respect. I shall certainly give thought to the suggestion, even if the conclusion is that the arrangements work perfectly well at the moment. There is a possibility of confusion, which was why earlier I took a moment or two to explain the difference between the nature of extradition proceedings and successful criminal prosecutions in this country.

The Earl of Onslow

My Lords, I should like to put two questions which I preface with a comment. It seems to me that the result is: phew! We are off the hook. Senator Pinochet has now gone home and we do not have to offend more people than is absolutely necessary. First, will the noble and learned Lord answer the very apposite question put by my noble friend Lord Cope? At what stage was it realised that Senator Pinochet should not be tried? It seems to me from the response of the noble and learned Lord that that realisation was a good deal earlier than the day before yesterday. If so, the man should have been let go a lot earlier than this morning. Secondly, allegations have been made that the original warrant issued by the Spanish court was faulty. If the CPS acted only as agent, was it under a duty to point out to the foreign court that its process was wrong or merely to act on the evidence presented to it? If it is to give legal advice to foreign governments, that is very different from acting as agent.

Lord Williams of Mostyn

My Lords, the noble Earl confuses two issues which I tried to keep separate. He asked—almost rhetorically—whether, if it had been decided a long time ago that Senator Pinochet could not be tried, he should have been discharged a long time ago. That is the confusion which I sought to illuminate earlier. When the material went to the Metropolitan Police on the date specified in the Statement the intention was to discover whether there was any admissible evidence for the purposes of a possible prosecution in this country. We have the jurisdiction and the obligation to consider a prosecution under Article 7(1) of the convention. That is one set of factual circumstances. That has nothing whatever to do with whether or not Senator Pinochet is fit to stand trial in Spain. They are completely separate matters. The disqualification for trial in Spain is the nature of the concluded medical evidence, whereas the disqualification for trial in this jurisdiction is that there is insufficient admissible evidence for a prosecution to be properly mounted. Those are wholly separate and distinct circumstances.

The question of whether when one is the lawyer or agent of a client one simply acts on the evidence is not really in point. If there is faulty documentation, then it is the duty of the lawyer to point out to the person whom he represents that it is faulty. But, if there were a faulty warrant, it would have been perfectly open to the lawyers representing Senator Pinochet (of whom there were many), in whose hands many days and weeks of court time were spent, to take that point. If they did take that point, it does not seem to have succeeded.

Lord Tebbit

My Lords, I thank the noble and learned Lord for the lucidity and care with which he has answered the questions put to him. We can all understand why he was so successful in persuading juries. I should like to put a question to which the noble and learned Lord may want to give overnight consideration before he replies. In the light of all that he has said about the need to ensure that those who commit such vile crimes as torture and murder and cause people to disappear should not escape the law, is he now entirely comfortable with the legislation, which he helped to take through this House, which enables those who tortured and caused to disappear United Kingdom citizens in Northern Ireland to be protected from prosecution?

Lord Williams of Mostyn

My Lords, I do not believe that anyone who was present on the occasions to which the noble Lord refers would have gone away happy. They would have gone away having tried as best they might to reconcile the almost irreconcilable. Let us remember that the legislation was voted through, not by executive fiat or on the basis, "We are powerful and above the law", but by two Chambers of a free Parliament, which I believe makes a very significant moral and political difference. But I join with the observations of the noble Lord. I was not happy about it. There are many things about compromises, legal or political, with which neither he nor I feel entirely content. However, sometimes we have to bite the bullet—the noble Lord has much more experience than I—and go for the best rather than the perfect solution.

Lord Monson

My Lords, can the noble and learned Lord tell the House whether the Government will consider compiling and publishing a list of all the countries where torture has been officially sanctioned at one time or another during the past 50 years? Such a list would be quite a long one. In this way one would be able to judge whether double standards are being applied by the international community.

Lord Williams of Mostyn

My Lords, I am not sure what practical validity would derive from that. The sub-text to the question of the noble Lord is that the rogue countries are perfectly well known. One should try to devise a system of justice that works rather than—I hope that he does not find my adjective disagreeable a—cosmetic list. The fact is that these were grave crimes and whoever was guilty of them caused monstrous, wicked offence not only to living human beings, who then had their lives taken from them, but to their relatives. To appreciate that one has only to go occasionally to South America, as I did before the election of the previous government when in power, to talk to people whose lives are utterly bereft and whose faces are blank because they simply do not know what happened to their 16 year-old son or brother 30 years ago.

Lord Monson

My Lords, I did not suggest that my list should be "cosmetic" but a complete one.

Lord Williams of Mostyn

My Lords, one can produce lists for all kinds of purposes. I am wondering whether the moral seriousness of what we are now discussing is really attended to by the production of a list which everyone knows about anyway.

The Earl of Onslow

My Lords, I apologise to the House for rising to my feet again, although we still have three minutes. It appears from what the noble and learned Lord said that we shall prosecute the vile who have no power but not the vile who have power. We welcomed to this country the President of China, who is not exactly a parish councillor from Scunthorpe. We also have as part of the establishment Martin McGuinness and Mr Adams, who are up to their elbows in blood, because it is convenient to us. As a Conservative, I have no difficulty with that because there are times when the ends justify the means. But it is slightly sickening that somebody who has no power is prosecuted for these horrible crimes. I totally agree with the noble and learned Lord's description of these crimes. It is unattractive that we prosecute the "weak vile" but not the "strong vile".

Lord Williams of Mostyn

My Lords, I do not put Senator Pinochet in the category of the "weak vile". According to the medical evidence which the Home Secretary looked at and accepted on the basis that it was independent material, he is now weak. But he was not weak when he came here; nor was he weak in the years of his power and his glory. I do not know of any admissible evidence against either Mr McGuinness or Mr Adams—

The Earl of Onslow

My Lords—

Lord Williams of Mostyn

My Lords, if the noble Earl has some, I expect that he will discharge his duty by providing it to the relevant authorities. I repeat: I know of no admissible evidence against either of the two men he identified sufficient to justify a charge of murder, if that is what he is alleging.

The Earl of Onslow

My Lords, perhaps I may ask the Minister to look up the instructions to the Grenadier Guards in Ulster 15 years ago: to arrest McGuinness on a charge of murder; he was their most wanted man. I assume that the authorities had some evidence for that: that they would not have done it just for a whim—"Let's lock up all ginger-headed Ulstermen".

Lord Williams of Mostyn

My Lords, the noble Earl identifies precisely the trap he should be avoiding. To arrest someone it is necessary to have reasonable grounds to suspect that he has committed an offence. Thank God in our country reasonable grounds for suspicion are not the same as proof beyond reasonable doubt.