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7.11 p.m.

Lord Lester of Herne Hill: My Lords, unlike other noble Lords who have already spoken or who will speak in this debate, I was not a Member of your Lordships' House during the turbulent and painful passage of the War Crimes Bill. Therefore I may be the only Member of the House to speak on this subject for the first time. However, I have carefully read the remarkable, protracted and sometimes emotive debates. Like most noble Lords, I wish that the Bill had never been introduced, though I do not hold that view for the reasons given by many of its harshest critics.

I do not believe that the rule of law was violated by the coming into force of the War Crimes Act 1991. It gave jurisdiction to our courts to try offences of murder or manslaughter committed as war crimes in Germany or German-occupied territory during the Second World War. It did not change the law retrospectively to make someone liable to prosecution and punishment for an act which, when he did it, he had no reason to believe was a criminal act.

The cold-blooded and sadistic crimes covered by the Act were individual crimes of mass murder, as the noble Lord, Lord Merlyn-Rees, so forcefully reminded us. They flagrantly violated the laws and customs of war as well as of peace. What was done by the perpetrators was criminal according to the general principles of law recognised by all civilised nations, including pre-war Germany.

The 1991 Act removed immunity from prosecution for those war criminals who were not British citizens during the Holocaust and its bestial atrocities. But it did not take them by surprise as to the criminality of their horrific acts. The Act was therefore fully in accordance with the international human rights codes.

Nor do I believe that the fact that the Labour Government decided in 1948, with Sir Winston Churchill's support, not to proceed with war crimes trials in the British-occupied zone, in any way precluded Parliament from passing that Act giving jurisdiction to

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our courts. As the noble Lord, Lord Campbell of Croy, rightly observed, what was done in the late 1940s was and remains controversial. It has been powerfully criticised by writers such as Mr. Tom Bower, in his disturbing and dispiriting book Blind Eye to Murder. But what was done by the British Government (rather than Parliament) in that bleak Cold War era did not in any way decide that Nazi war criminals could obtain a safe and permanent haven from justice in this country by deceiving the Home Office and obtaining British citizenship.

Nor do I consider that the Act has authorised, still less required, unfair criminal trials. It did not create some newfangled procedure for Soviet-style or McCarthyite show trials. Rather, it included the public interest safeguard (in Section 1(3)) for the accused that cases can only come to trial with the consent of the Attorney General or, in Scotland, the Lord Advocate. That is an important safeguard in preventing miscarriages of justice. So is the even more vital safeguard of the independent judiciary in securing a fair trial by jury in accordance with the presumption of innocence, the rights of the accused and the stringent standards to which the noble Lord, Lord Houghton of Sowerby, referred.

The strongest argument made during the debates against the Bill was that it was futile because a fair trial would be very difficult to achieve for a man in his seventies, a half century after the alleged crime was committed. Such a trial would be unlikely to succeed and would be a daunting undertaking for the judge and jury as well as for the prosecution and defence.

I agree with that powerful objection. But another and more troubling reason for wishing that the Bill had never been introduced is that the controversy about its passage stirred that very light sleeper, antisemitism. It did so without contributing in a positive way to public education about the evil banalities of the Nazi atrocities and the lessons still to be learnt, especially at a time when ethnic and religious hatred and antisemitism again stalk across Europe.

In my view, the Bill and its passage revived terrible memories and nightmares. At times there seemed almost to be more concern in some quarters for septuagenarian war criminals than for the traumatic memories and feelings of the survivors who escaped them. Supporters of the Bill were accused, insensitively and unfairly, of harbouring feelings of revenge and retribution rather than the quality of mercy.

That was an exorbitant price to pay for enacting a statute that at best could not result in more than a handful of successful prosecutions. That is why I was firmly opposed to the original Bill and would have voted against it. But —I emphasise—that is past history.

So strong was the opposition in this House, led by the noble Lords, Lord Campbell of Alloway and Lord Houghton of Sowerby, and my noble friend Lord Mayhew, all of whom have spoken this evening, that the Government were compelled to invoke the Parliament Act to secure the Bill's passage. Those noble Lords should be content with their victory in forcing the Government to invoke the Parliament Act to give effect

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to the will of the democratically elected other place. It is regrettable that now, instead of leaving matters to take their course, they seek to stultify the Act altogether by preventing proceedings from being brought in the future and by empowering the Court of Appeal (Criminal Division) to stifle any pending prosecution at its birth. That is a wholly unnecessary power because paragraphs 6 and 11 of the Schedule to the 1991 Act give the Crown Court a specific power to dismiss a charge and quash an indictment if it appears to the judge that the evidence would not be sufficient for a jury properly to convict.

I am sorry to say that this Bill reopens the wounds inflicted during the passage of the 1991 Act three years ago. It seeks to override the Act just when police investigations are concluding and the responsible public authorities are deciding whether or not it is in the public interest to bring a prosecution against suspected war criminals.

Surely we should respect the will of Parliament, as expressed in the 1991 Act, and leave it to the prosecuting authorities, the law officers and the courts to decide whether anyone should now face trial. If the noble Lord presses his Bill further we will send a message to the world that this House is so concerned with the well-being of a handful of suspected war criminals living here that the House is prepared to attempt to take power away from those entrusted by Parliament with the task of reviewing the evidence, so painstakingly obtained, and from those entrusted by Parliament with deciding whether a prosecution is or is not in the public interest. That would suggest a curious scale of values and priorities. It would also imply, without any rational basis, that we in this House lack confidence in the prosecuting authorities and the law officers, and ultimately in our independent courts including the Lord Chief Justice, to pursue justice or not to pursue justice according to the law of the land. That is why I devoutly hope that the noble Lord, Lord Campbell of Alloway, will not proceed further with his unnecessary, divisive and untimely Bill.

7.20 p.m.

Lord Bridge of Harwich: My Lords, I have always thought that by far the gravest objection to the jurisdiction which the War Crimes Act conferred on the English courts was the near impossibility that anyone tried in the exercise of that jurisdiction could be guaranteed a fair trial. It was a near impossibility at the time when the Act went on the statute book. As the years pass the prospect of a fair trial becomes more and more remote.

The noble Lord, Lord Merlyn-Rees, spoke of miscarriages of justice. He spoke of the judiciary being under a cloud, which implies that he thinks those miscarriages were due to judicial incompetence. I hope he is wrong. I do not believe they were. I believe that the miscarriages of justice were due to the fallibility of the criminal justice system. Any criminal justice system must be fallible and regrettably will always remain so. I do not know how it can be made infallible. But however those miscarriages of justice occurred, they vividly brought home to us that an English jury, on apparently credible evidence, trying someone for a

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crime committed in recent times and in the familiar social environment of this country, can still be shown to have been wrong and to have caused a miscarriage of justice. To ask an English jury to try an old man of my generation for one of the gravest crimes in the calendar on the basis of evidence presumably given by witnesses of similar advanced age about events which occurred in eastern Europe in circumstances of great social upheaval is surely to invite a miscarriage of justice.

Before the Bill can reach the statute book, if ever it does, more than 50 years will have passed since the latest date when any of the crimes to which the 1991 Act is directed were committed, and that is a long enough limitation period for any crime, however serious. That is why I support the principle of Clause 1 of the Bill.

That said, of course I recognise the sincerity and understand the depth of feeling of those who take the view that the crimes to which the 1991 Act was directed were of such enormity that the attempt to bring the perpetrators to justice is one which can never properly be abandoned. They must presumably proceed on the basis that, even after so long a time, a fair trial is still theoretically possible. In one of the debates on the Bill which became the 1991 Act the noble Lord, Lord Mishcon, by virtue of a vivid exercise of his fertile imagination, gave an example of how such a case may arise. He envisaged my noble friend Lord Campbell of Alloway walking along Piccadilly and recognising someone with a peculiar scar on his face as being a guard at Colditz who had subsequently murdered a prisoner. When one imagines a case of that kind it is theoretically possible that there may still be a fair trial; but the theory is a remote one.

Even the most passionate advocate of continued prosecution must recognise that whether or not there can be a fair trial in a specific case must depend on the nature of the issues and the character of the evidence involved. When the Bill which became the 1991 Act was before the House for the second time, I urged the House, having opposed a Second Reading when it was before the House on the first occasion, to give it a Second Reading in the hope that the procedures involved could be amended and improved. But the House was not persuaded with the inevitable result that, under the Parliament Act, the Bill immediately received Royal Assent without amendment. If this Bill proceeds there will be an opportunity to enhance the procedure in ways I believe are necessary.

The 1991 Act does not spell out in terms that despite its retrospective character in one sense it is still open to the courts to exercise their jurisdiction to stay a prosecution on the grounds that the defence would be substantially prejudiced by delay or that delay would make a fair trial impossible. I understand the Government's position always to have been that the courts will have that power and now that they can look at Hansard perhaps that will cure the ambiguity. But in principle it is wrong that a statute should remain ambiguous on the basis that Hansard will cure the ambiguity. I hope that if this Bill proceeds it will be possible in Committee to introduce a suitable provision making it perfectly clear that the courts have that unfettered discretion.

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When it comes to the exercise of the discretion, had the Bill in 1991 received a Second Reading, I was minded to table an amendment on the lines of the provision in Clause 2 of this Bill. To my mind there should be an appeal either way. An application to stay a prosecution on the ground of prejudice by delay comes before the single trial judge and, as the law stands at the moment, there is no appeal from his decision. In the special circumstances of a war crimes prosecution—so long as they can and do continue—it seems to me entirely right that the onerous responsibility of deciding on an application whether, in the circumstances of a specific case, there is such prejudice that the prosecution should be stayed or whether there cannot be a fair trial should not rest on the shoulders of a single judge. Any such decision is bound to be highly controversial and it is only right that the last word and the responsibility for taking the decision should rest on the shoulders of three judges in the Court of Appeal.

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