Select Committee on Northern Ireland Affairs Minutes of Evidence


Examination of Witnesses (Questions 480-497)

SIR ALASDAIR FRASER AND MR JAMES SCHOLES

13 MAY 2008

  Q480  Chairman: No, but you would see it as being something unexceptionable with which you could find yourself, as you say, content?

  Sir Alasdair Fraser: I think if society considers that this is appropriate I would be very content. There would need to be a reasonably broad consensus for that consent to be meaningful.

  Q481  Chairman: Thank you very much, that is very helpful. Taking things as they are at the moment, what do you find to be the greatest obstacles in bringing prosecutions dealing with crimes committed long ago?

  Sir Alasdair Fraser: There would be a range of problems. The memory of witnesses is fickle.

  Q482  Chairman: Indeed.

  Sir Alasdair Fraser: And documentation would not have been kept or prepared in the manner that it would be today. With scientific techniques, whilst they give a great opportunity for finding fresh evidence, one is caught by the manner in which exhibits have been handled and their integrity. I think it is very difficult to go back 30 years and be able to put together sufficient evidence that will withstand the proper, rigorous scrutiny that it will receive.

  Q483  Chairman: As one who could not, in his time, vote for the War Crimes Bill for those reasons, I fully understand why you make those points. When we went to visit the HET team we did have pointed out to us the number of very damaging attacks on police stations over the period of the Troubles which resulted in destruction of much valuable evidence. We also had pointed out to us that there were two fairly devastating attacks on the Forensic Laboratories. All of these things make it more and more difficult. What is absolutely crucial, and it has been underlined, of course, by a recent case is that if prosecutions are to be brought everybody has got to be persuaded that this truly is a fair trial and that it will stand up to the scrutiny to which you just referred.

  Sir Alasdair Fraser: Things go in cycles in the legal system. At one point it might have been the treatment of individuals in police custody that was the point of focus, then whether or not someone had made some adjustment to interview notes. I think we are now in the phase where fresh, vigorous scrutiny has been brought to the manner in which exhibits are being handled, and quite properly so.

  Q484  Chairman: Yes. Last year, Parliament, in its wisdom, decided that the era of Diplock was over but that there should be a remaining provision for trial without jury here. Have there been any trials without jury since Diplock?

  Sir Alasdair Fraser: Yes. I am called upon to issue a certificate and if I suspect that a condition which Parliament has set is met, for example the defendant is involved in a proscribed organisation, and consider there is a risk that by reason of that the administration of justice might be affected then there will be a trial before a judge sitting alone. I take the decision on the basis of a very thorough analysis of the evidence and intelligence. In some cases I have granted a certificate and in others refused. Interestingly, I refused a certificate in a transitional case which was heading for a Diplock trial because the conditions are different.

  Q485  Chairman: Yes. Can you tell the Committee how many certificates you have granted and how many you have refused.

  Mr Scholes: Somewhere in the region of 22. I cannot be absolutely accurate but it is somewhere around that figure.

  Q486  Chairman: 22 granted?

  Mr Scholes: 22 certificates issued, yes. Obviously those cases have not come to trial yet.

  Q487  Chairman: No, I appreciate that. This is very, very helpful because, after all, we were all involved in this legislation. How many refused?

  Sir Alasdair Fraser: I would say one.

  Q488  Chairman: One.

  Sir Alasdair Fraser: I think so. It is a very small number.

  Q489  Chairman: You were very proper in the remarks you made about possible legislation, but can you say on this piece of legislation that you are content with the way it is indeed allowing you to operate, or has Parliament not got it right?

  Sir Alasdair Fraser: Parliament always gets it right!

  Q490  Chairman: Would that that were the case, Sir Alasdair, would that that were the case.

  Sir Alasdair Fraser: I would admit that in approaching the Bill I was not at ease with the prosecutor being cast as the decision-maker. I preferred the previous arrangement whereby the Attorney took that decision.

  Q491  Chairman: So did I, yes. That is very interesting because we did have the Attorney before us on this very issue and I and colleagues pressed him on that point. Having said that, you are reasonably content with the way it is now enabling you to work even though you would prefer not to have that specific responsibility?

  Sir Alasdair Fraser: Yes. I do not think it has been tested yet.

  Q492  Chairman: No.

  Sir Alasdair Fraser: One would anticipate some judicial review of a decision or perhaps an abuse application.

  Q493  Lady Hermon: Against a certificate having been granted?

  Sir Alasdair Fraser: Yes.

  Q494  Lady Hermon: That has not yet arisen?

  Sir Alasdair Fraser: It has not.

  Q495  Lady Hermon: The grounds for review, if my memory services me well, and it does not always, are judicially kept very narrow indeed, are they not?

  Mr Scholes: Yes, dishonesty, bad faith or other exceptional circumstances.

  Sir Alasdair Fraser: I think in this particular case my colleague is right. It is very hard to have a Director's decision overturned in the absence of malfeasance, but on this issue probably one would be applying the Wednesbury approach whether or not it was reasonable. That is probably a lower standard that the applicant would have to establish.

  Chairman: Before we move into private session, are there any other questions?

  Q496  Lady Hermon: Yes, Sir Patrick, I have got one. I am always very interested in finding out how morale is within an organisation. How would you describe morale, because we are looking at how we are dealing with the past in Northern Ireland? The contingent of prosecutors who are looking at the past, would you say they regard that work as something of a privilege or is it something of an albatross that they just have to get on with and do?

  Sir Alasdair Fraser: It is the former. It would be viewed as difficult work within my service and it would be a feather in one's cap if one was designated to take that work forward.

  Q497  Lady Hermon: Really.

  Mr Scholes: Sir Alasdair Fraser: There would be no reluctance at all.

  Lady Hermon: That is a very interesting response. Thank you for that.

  Chairman: Thank you very much indeed. Are there any other questions? In which case, could I ask the members of the public to withdraw, please, and Sir Alasdair and Mr Scholes will stay. Thank you very much indeed.


 
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