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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