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6.56 p.m.

Lord Campbell of Croy: My Lords, my contribution in the debate is aimed at helping to find the answer to the question: what was it that put the United Kingdom in a thoroughly unsatisfactory situation in 1989? There had been no way of dealing with any alleged war criminals from World War II who were resident in the United Kingdom. Any new legislation in 1989 would be for events nearly 50 years earlier, with all the difficulties of obtaining clear evidence and certain identification.

The situation arose because in 1948 nothing was done to ensure that there would be legislation in the United Kingdom to deal with any war criminals who had entered this country in disguise. It is important to recognise this crucial omission. The Nuremberg tribunal was established by the victorious allies after World War II. It tried Hitler's accomplices—Goering and Hess, plus military and other leaders who had perpetrated horrors. These were the ringleaders. They and some others who were prominently suspected of war crimes were tried by that tribunal.

Some who should have been tried had escaped and were later found in South America and elsewhere, long after 1948. Others were never found. After three years, the Nuremberg tribunal was brought to an end. It was never intended to have a long life. The big fish had been dealt with. Lesser suspects had been tried in courts in the British and other zones of Germany and these were the smaller fry.

This process was handed over by the British in our zone to the newly formed German courts in the newly democratic West Germany, which continued to try cases over the next 40 years. Other countries in continental Europe also retained the means to try alleged war crimes from World War II. Britain was a notable exception. It was presumed that no war criminal would have found a place in our society here. This was an idle assumption because large numbers of refugees from areas such as the Baltic States, the Ukraine and other parts of Europe entered Britain in the late 1940s with very little screening. It was not difficult for a war criminal who was not widely or easily recognisable to conceal himself among those refugees. With false papers, he was then safe.

Until the War Crimes Act 1991, there was no way in which an accused in this country could be brought to trial in the United Kingdom for a war crime committed in World War II. In 1957 it was made possible for prosecutions to be brought in the UK, but not for war crimes that had taken place before that year. The legislation was not retrospective to World War II. The noble Lord, Lord Merlyn-Rees, recalled cases in the late 1940s when refugees came to this country from south and central Europe. I remember similar events in the late 1940s—I worked in the Foreign Office from 1946 to 1949, dealing with Eastern Europe. The alleged war

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criminals involving our department were Yugoslavs in the United Kingdom, some of whom were sent back to Yugoslavia for trial. But the refugees who had come in from the Baltic States and the Ukraine had been behind the German and Russian front and very little was known about their background. In brief, anyone who thought in 1948 that all war criminals had been brought to trial deluded himself. Any deliberate amnesty then or calling a halt to the process in this country had the effect of a reprieve for the war criminal who had so far escaped arrest by means of disguise and deceit. Trials continued in other countries into the 1950s and later.

In my opinion, the 1991 Act was many years too late. Although the Statute of Limitations does not apply to murder, firm evidence and indisputable identification is very difficult to collect after 50 years. I take an illustration in Scotland. Recently, in a Scottish court, an individual was found to be a war criminal after he had brought a defamation case and after investigation in the Baltic States. However, no prosecutions are to be initiated in Scotland under the 1991 Act because sufficient hard evidence is not available. That is an anomalous and very unsatisfactory situation. Of course the individual should not have brought the defamation case. He must have thought that he was even safer than he was.

The noble Lord, Lord Mayhew, for whom I have the highest regard and for whom I worked in those days when I was a Foreign Office official and he was a Parliamentary Secretary at the Foreign Office, rightly recorded that the Nuremberg tribunal and the trials in the British zone were brought to an end in 1948 with general support. Unfortunately, there was a gap in UK legislation for any person in this country who might be suspected or accused. In the late 1940s I was sending notes to the noble Lord from the Official Box up there because the Commons was sitting in this Chamber after the bombing of the other place. I also sent notes to Mr. Ernest Bevin and Mr. Hector McNeil. The noble Lord, Lord Mayhew, took more notice of my notes, of course, then than he would now.

I shall end by recounting a personal experience. Leading elements of the Scottish division in which I was serving, with our accompanying armoured units, discovered Belsen. That was on 15th April 1945, exactly two weeks before I was wounded and disabled. The concentration camp happened to be on our line of advance. Many of our officers and men had witnessed horror and carnage in the previous 11 months, but they felt a sense of outrage at what they found. There had been rumours that such camps existed but this was the first one to be discovered in the West. Here was the awful proof. The press arrived as we were moving on towards the Elbe, and in the following days newspapers were full of accounts and photographs. Belsen had no

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gas chambers but its victims were left to expire miserably from starvation and disease. We were several months too late to save Anne Frank.

7.5 p.m.

Lord Houghton of Sowerby: My Lords, I shall be brief; at present late hours are not good for me, and I do not think that I ought to take up the time of the House if I cannot stay to the end of the debate. I apologise.

However, I wish to register my position. I am in support of the noble Lord who introduced the Bill. I am fully in support of everything that was just said by the noble Lord, Lord Campbell of Croy, and also the remarks of the noble Lord, Lord Mayhew, who spoke before him. Therefore a good deal of what I might say would be to underline what they said. But perhaps I may just offer the following advice.

The whole of this debate in favour of the course upon which we are now set ignores the fact that we have a jury system. The three countries which have joined in the compact to carry out these prosecutions for war crimes and which have our judicial system have found that their first case has been their last and nothing but frustration and social discontent has followed. We are on a course that we shall regret if we pursue it. It is far too late. Our system of judicial treatment is much more exacting and fastidious than most. When we hear about evidence that is adequate, we probably do not take into account that members of the jury have to be convinced that the evidence they hear is fully corroborated and is the basis upon which they can reach a verdict without reasonable doubt. That is a very severe test to apply to their judgment.

It is not convictions that we have to worry about—it is acquittals. Acquittals are the disaster. Other countries do not have the "fitness to plead" rules that we have. In Canada the accused was so ill during the nine months of his trial that he was able to be in the dock only for limited times on doctor's orders. At other times he appeared wilting and listless and paid no attention to the proceedings. I hope that we can avert a repetition of the social discontent and racial disharmony which follows acquittals in these cases.

Those who press for retribution through the trial of war crimes are after what they conceive to be justice and which is in fact punishment. When they do not bring about the punishment, they cannot be satisfied with the system; and they cannot be content that justice has been done.

I hope that circumstances will allow us to come out of this with honour and dignity. Next year we shall commemorate the 50th year after the ending of the war. No trials relating to events that took place over 50 years previously can possibly succeed under our system. Let us think of what the Canadian case imposed on all concerned. The noble Lord, Lord Shaughnessy, can tell your Lordships a great deal more about that case than I can. The jury listened to evidence for six months. Six months! Let us think of that jury then taking three months to consider their verdict: they came to a unanimous conclusion which led to acquittal. Then the balloon went up. It was very sad and it is still sad. They have not had another.

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In Australia, the question arose of fitness to plead, when the accused in the first case shot himself in the chest and rendered himself incapable of going to trial. The question arose as to how long one waited for the accused to be fit to plead before going ahead. We do not realise what we are in for. I hope that wiser counsels will prevail. Let us get the emotion out of the issue now. It is a practical matter.

In Canada, 43 witnesses from eastern Europe had to be kept in Toronto for nine months while the case proceeded. There were six months of listening to testimony, with translations; the examination of witnesses had to be translated. How can that be a practical basis for a trial? In the Canadian case the defending counsel offered no defence and called no witnesses on the ground that he had no facilities for getting witnesses. The prosecution had all the opportunity and time that they cared to take to find witnesses; but the defence had no similar facilities in order to find evidence to the contrary. Let us pay attention to what noble Lords are saying in that direction.

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