House of Commons Hansard Debates for 16 Dec 1992

Mr. David Winnick (Walsall, North) : I hope that my colleagues who represent Scottish constituencies will forgive me for intervening briefly in the debate.

The subsection passed in another place is very unfortunate. The hon. and learned Member for Fife, North-East (Mr. Campbell) fairly spoke of his opposition to the War Crimes Act and gave his reasons for supporting--as I do--the Government amendment to overturn what

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was done in another place. Unlike the hon. and learned Gentleman, who speaks from the Liberal Democrat Benches, I supported the War Crimes Act. I gave my reasons at the time and it would be inappropriate, and no doubt out of order, for me to attempt to so again today.

Although I supported the Act, I always did so on the basis that justice must be done. I was not concerned with revenge, as some critics argued. If I had been of the view that so many years have elapsed since the crimes took place during the last war that it would be impossible to get justice, I would not have supported the legislation. I am concerned with justice. Nevertheless, just because they happened half a century ago, it does not mean that the people who are alleged to have been responsible for some of the most monstrous crimes that have ever been committed should not be brought to justice, if that is possible. I believe that people living in the United Kingdom and in Scotland may well have to face justice for such crimes. Should those people be brought to court, under our system the courts will decide whether they are guilty.

Earlier today, I read the debate in another place. As several of their Lordships made clear, when the subsection was debated on 4 June it was almost a replay of the War Crimes Act. Perhaps the word "almost" is not necessary--it was as if their Lordships had decided that, as they had lost the first time round, they would use the Bill to put forward their arguments against the Act. The measure was being used by people who were totally opposed to the Act, which seems unfortunate.

I am pleased that the Government have decided to invite the House to overturn what their Lordships have done, and I am sure that the House will gladly take up the invitation.

Mr. Bill Walker : I shall be brief. I congratulate my right hon. Friend the Secretary of State on the way in which he moved the amendment.

The stand taken by the hon. and learned Member for Fife, North-East (Mr. Campbell) deserves comment. He is a credit to the House and to his profession, because at least he is consistent on matters of principle. That is important, especially in legislation and law. As he said, it would be wrong for the use of modern technology to be excluded for one crime.

As everyone knows, war crimes will not be restricted to what happened during the ghastly period between 1939 and 1945. One could argue that many war crimes are being perpetrated at this moment. Who knows whether, at some future date, a resident of Scotland will be charged with a war crime? It is proper and right that the amendment should be supported by the House.

Mr. Lang : I am grateful to hon. Members who have taken part in the debate. I could not help noticing how different the tone of the debate has been compared with the tone and content of the debate in the other place. Their Lordships were wrong to use the measure to reopen the war crimes issue. By so doing, they have injected anomalies into the relationship between the laws of Scotland and England and between war crimes and other serious crimes.

I am grateful to the hon. and learned Member for Fife, North-East (Mr. Campbell) for his comments. I too voted against the original motion. I was persuaded otherwise as

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matters proceeded, but I feel the same way as he does about the amendment, for precisely the reasons that he eloquently and effectively put before the House.

I also note and am grateful for the comments made by the hon. Member for Walsall, North (Mr. Winnick) and by my hon. Friend the Member for Tayside, North (Mr. Walker). I hope that the unanimity of those taking part in this short but important debate will not be lost on their Lordships in another place and that they will recognise the view of this House on an important matter.

Amendment agreed to.

Clause 47

Short title, commencement and extent

Lord James Douglas-Hamilton : I beg to move amendment No. 16, in page 29, line 41, leave out Paragraph 5 of Schedule 5 to' and insert

This section and, is so far as relating to paragraph 5 of Schedule 5 of this Act, section 46(1) of'.

Madam Deputy Speaker : With this it will be convenient to take Government amendment No. 27.

Lord Douglas-Hamilton : It was agreed in Committee that the provisions in paragraph 5 of schedule 5 should come into effect as soon as the Bill was passed. It is necessary for that purpose that the paving provision in clause 46(1), in so far as it relates to paragraph 5 of schedule 5, should come into effect simultaneously. Amendment agreed to.

Schedule 3

Documentary Evidence in Criminal Proceedings

Amendments made : No. 29, in page 32, line 38, at beginning insert

Except where it is a statement such as is mentioned in paragraph 2A(b) and (c) below,'.

No. 12, in page 33, line 6, leave out

but', if it was supplied indirectly, only if each person through whom it was supplied received'

and insert

unless, in the case of information supplied indirectly, it appears to the court that any person through whom it was so supplied did not both receive and supply'.

No. 30, in page 33, line 29, at end insert--

2A. A statement in a document shall be admissible in criminal proceedings as evidence of the fact that the Statement was made if-- (

(a) the document satisfies the conditions mentioned in sub-paragraph (1)(a) and (b) of paragraph 2 above ;

(b) the statement is made, whether directly or indirectly, by a person who in those proceedings is an accused ; and

No. 31, in page 35, line 22, after but', insert , except in paragraph 6(1)(a),'.-- [Lord James Douglas-Hamilton.]

Schedule 5

Minor and Consequential Amendments

Amendments made : No. 17, in page 39, line 48, at end insert-- ( ) In section 233(1) (note of appeal), the existing words from "within six weeks" to the end shall be

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paragraph (a) and after that paragraph there shall be added the word "; or" and the following paragraph--

"(b) as the case may be, within four weeks of the passing of the sentence in open court, the Lord Advocate may lodge such a note with the Clerk of Justiciary, who shall send a copy to the said judge and to the convicted person or that person's solicitor.".

( ) In section 234(1) (presentation of appeal in writing), after the word "appellant" there shall be inserted the words "other than the Lord Advocate".

( ) In section 236B(2) (extension of certain periods), for the words "233(1)" there shall be substituted the words "233(1)(a)". ( ) In section 236C (signing of documents), after the words "to appeal" there shall be inserted the words "or (except where the appellant is the Lord Advocate) any".

( ) In section 238 (admission of appellant to bail), for subsections (1) and (2) there shall be substituted the following subsections--

"(1) The High Court may, if it thinks fit, on the application of a convicted person, admit him to bail pending the determination of-- (

(a) his appeal ; or

(b) any appeal by the Lord Advocate against the sentence passed on conviction.

(2) A person who is admitted to bail under subsection (1) above shall, unless the High Court otherwise directs, appear personally in court on the day or days fixed for the hearing of the appeal or of any application for leave to appeal ; and in the event of his failing to do so the court may--

(a) if he is the appellant--

(i) decline to consider the appeal of application ; and (

(ii) dismiss it summarily ; or

(b) whether or not he is the appellant--

(i) consider and determine the appeal or application ; or (

(ii) without prejudice to section 3 of the Bail etc. (Scotland) Act 1980 (breach of conditions), make such other order as the court thinks fit.".

( ) In section 239(1) (notice of date of hearing), for-- (

(a) the words "appellant or applicant", in both places where they occur, there shall be substituted the words "convicted person" ; and (

(b) the word "latter", there shall be substituted the words "appellant or applicant".

( ) In section 240 (presence of appellant at hearing), for the word "An", where it first occurs, there shall be substituted the words "A convicted".

( ) After section 242 there shall be inserted the following section--

"Special provision where appellant is Lord Advocate. 242A. Where the Lord Advocate is the appellant, sections 241 and 242 of this Act shall apply in respect of the convicted person, if in custody, as they apply to an appellant or applicant in custody.".

( ) In section 243 (provision as to warders attending court), for the words "the last foregoing section" there shall be substituted the words "section 242 of this Act".

( ) In section 252 (powers of High Court), after the words "228(1)" there shall be inserted the words "or 228A"

( ) In section 258 (sentence in absence), after the word "appellant" there shall be inserted the words "(or, where the Lord Advocate is the appellant, the convicted person)".

( ) In section 261 (notice of determination of appeal), after the word "applicant" there shall be inserted the words "(or, where the Lord Advocate is the appellant, to the convicted person)". ( ) In section 264 (disqualification, forfeiture, etc), in each of subsections (1) and (2)--

(a) for the word "two" there shall be substituted the word "four" ; and

(b) after the words "228(1)(b)" there shall be inserted the words "or 228A".

( ) In section 265 (fines and caution), after subsection (4) there shall be inserted the following subsection--

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"(4A) A convicted person who has been sentenced to the payment of a fine and has duly paid it shall, if an appeal against sentence by the Lord Advocate results in the sentence being quashed and no fine, or a lesser fine than that paid, being imposed, be entitled, subject to any order of the High Court, to the return of the sum paid or as the case may be to the return of the amount by which that sum exceeds the amount of the lesser fine.".

( ) In section 268 (reckoning of time spent in custody pending appeal)--

(a) in subsection (1)--

(i) for the words "an appellant" there shall be substituted the words "a convicted person";

(ii) after the word "appeal" there shall be inserted the words ", or as the case may be of any appeal by the Lord Advocate against the sentence passed on conviction,"; and

(iii) for the word "this", where it occurs qualifying the word "sentence", there shall be substituted the word "that";

(b) for subsection (2) there shall be substituted the following subsection- -

"(2) The time (including any period consequent on the recall of bail) during which a convicted person is in custody pending the determination of his appeal, or as the case may be of any appeal by the Lord Advocate against the sentence passed on conviction, shall subject to any direction which the High Court may give to the contrary be reckoned as part of any term of imprisonment under that sentence."; and

(c) in subsection (3), after the word "appellant" there shall be inserted the words "(or, where the appellant is the Lord Advocate, of a convicted person)".

( ) In section 269 (extract convictions)--

(a) for the word "two" there shall be substituted the word "four"; and

(b) after the words "228(1)(b)" there shall be inserted the words "or 228A".

( ) In section 270 (custody of trial documents, etc.)--

(a) in subsection (2)--

(i) for the words from the beginning to "proceedings" there shall be substituted the words "Until any period allowed under or by virtue of this Part of this Act for lodging intimation of intention to appeal (or any longer period allowed by virtue thereof for lodging a note of appeal) has elapsed, all documents and other productions produced at the trial of a convicted person shall be kept" ; (

(ii) after the words "228(1)(b)" there shall be inserted the words "or 228A" ; and

(iii) the words "of two weeks or any extension thereof authorised by the High Court" shall cease to have effect ;

(b) in subsection (3)--

(i) after the words "228(1)(b)" there shall be inserted the words "or 228A"; and

(ii) for the words "to his" there shall be substituted the words ", as the case may be, to the convicted person's"; and

(i) after the words "228(1)(b)" there shall be inserted the words "or 228A"; and

(ii) for the words "such period of two weeks or extension thereof as aforesaid" there shall be substituted the words "the period mentioned in subsection (2) above".

( ) In section 273(1) (register of appeals), after the words "228(1)(b)" there shall be inserted the words "or 228A".'. No. 18, in page 41, line 48, at end insert--

( ) In section 277(2) (list of provisions non-compliance with which may be waived), in the first column, under the entry relating to section 242, there shall be inserted the entry "242A".'. No. 19, in page 42, line 14, at end insert--

( ) In section 442(1)(b)(ii) (prosecutor's appeal against sentence on point of law), for the words "in such proceedings" there shall be substituted the words "on such conviction".

( ) In section 442B (method of appeal against sentence alone)-- (

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(a) after the words "Where a" there shall be inserted the word "convicted";

(b) after the word "Act", where it first occurs, there shall be inserted the words ", or the prosecutor desires so to appeal by virtue of section 442(1)(c) thereof,"; and

(c) for the proviso there shall be substituted the words "; but nothing in this section shall prejudice any right to proceed by bill of suspension, or as the case may be advocation, against an alleged fundamental irregularity relating to the imposition of the sentence.".

( ) In section 452A (disposal of stated case appeal)--

(a) in subsection (1), after the word "subject" there shall be inserted the words "to subsection (2) below and" ; and

(b) for subsection (2) there shall be substituted the following subsection- -

"(2) The High Court shall, in an appeal--

(a) against both conviction and sentence, subject to section 453D(1) of this Act, dispose of the appeal against sentence ; or (

(b) by the prosecutor, against sentence, dispose of the appeal, by exercise of the power mentioned in section 453C(1) of this Act.".

( ) In section 453B (appeals against sentence only)--

(a) in each of subsections (1), (7) and (8), after the words "442(1)(a)(ii)" there shall be inserted the words ", or by virtue of section 442(1)(c)," ;

(b) for subsection (2) there shall be substituted the following subsection- -

"(2) The note of appeal shall, where the appeal is

(a) under section 442(1)(a)(ii) be lodged, within one week of the passing of the sentence, with the clerk of the court from which the appeal is to be taken ; or

(b) by virtue of section 442(1)(c) be so lodged within four weeks of such passing." ;

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