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7.51 p.m.

Lord Archer of Sandwell: My Lords, like my noble friend Lord Merlyn-Rees, I have to declare an interest as an officer of the All-Party Group on War Crimes, and like the noble Lord, Lord Lester, I am speaking on this subject in your Lordships' House for the first time.

A number of threads have run through the debate. The first touches on the constitutional implications of the Bill. The effect of Clause 1 would be to disapply the War Crimes Act in respect of future prosecutions. Since we know as a fact that no prosecutions have been initiated under the Act—indeed, as I understand it, that was the very reason that the noble Lord, Lord Campbell, was induced to introduce the Bill—it would follow that, in effect, it would repeal the 1991 Act—

Lord Campbell of Alloway: My Lords—

Lord Archer of Sandwell: My Lords, if the noble Lord will forgive me for one moment, I believe that I can anticipate his point. If not, I shall certainly give way to him. The noble Lord asked us to remember that if the Bill is given a Second Reading and makes its way in due course onto the statute book, there will be a period of time—a window, as it were—in which the authorities can act. I understand that that was the reason that the noble Lord sought to intervene. I understand the noble Lord's desire that no time should be lost, but I am bound to say that I doubt whether it is conducive to justice to compel those concerned to initiate a prosecution by a

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specific cut-off point, to clear their desks by a specific stroke of the clock. I would be very concerned if that were the effect of what we have done.

Whatever the merits of the 1991 Act, it is on the statute book and it would be curious to seek to repeal it three years later, particularly in view of the overwhelming majority that it received in another place, unless there had been some material and unpredictable change of circumstance since it was passed. So I listened with great care to what the noble Lord said about how the situation had changed. The answer appears to be that when the Act was passed no one knew that by the end of 1994 no proceedings would have been initiated. I believe that there are two answers to that.

First, it was obvious then that investigations would take some time. Their very nature would involve some time-consuming inquiries and no one would have the authority to undertake them in the first place until the Act was on the statute book. Certainly, as the noble Lord, Lord Beloff, pointed out, the way in which the political situation would change was not then wholly predictable. That may have made some difference. However, no one then wanted to see prosecutions being initiated without proper consideration.

Secondly, it was clear in 1991 that even if some prosecutions had been initiated, not every prosecution would have been initiated within three years. Inevitably, some cases would still be outstanding in December 1994, and if it was then considered right to make provision which would necessarily have that effect, it now seems strange that it was not envisaged that prosecutions might run into 1995.

I turn now to the question of whether it is right to impose a time limit on any category of criminal prosecution. That proposal has never found favour in this country. There is something repugnant in the suggestion that if a criminal can by subterfuge or dissimulation contrive to remain undetected for a sufficient period of time, that should earn him exemption from paying the penalty for his crimes. That is an unattractive proposition when applied to any offence. It becomes less enticing with the seriousness of the offence. When it is sought to apply it to some of the most horrifying offences in history, it surely has few attractions. It was considered by the authors of the Hetherington-Chalmers Report, who rejected it on at least two grounds. First, in paragraph 9.19, they pointed out that it is not applied in the criminal law of this country. We would have to make specific provision for a specific category of case. They pointed out the recent example of a domestic murder that was committed 27 years before the trial. Secondly, in paragraphs 5.41 and 5.45, they pointed out that the United Nations, expressing the consensus of the civilised world, had agreed in 1968 on the Convention of the Non-applicability of Statutory Limits to War Crimes and Crimes against Humanity. In 1974 the Council of Europe took the same view in a similar convention. The Bill would fly in the face of that consensus.

What is not in dispute in this debate—it has been clear from virtually every contribution—is that in each case the court should be assiduous to ensure that no injustice arises from any delay and if, in consequence,

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there are no convictions, so be it. Where there is a doubt, clearly the benefit of the doubt should be accorded to the defendant. That is what the noble Lord appears to contemplate in Clause 2.

Whether there is a doubt depends on the facts of each individual case. As the noble and learned Lord, Lord Bridge, reminded us, it depends partly on the question at issue. In some cases, there may be an issue as to identity. Clearly, the court should have in mind that for any of us, alas, appearances change with the years. I am still surprised at how, encountering people I knew in my youth and have not seen for many years, I am frequently able to recognise them. I am sometimes flattered to discover that they recognise me. Of course, the judge should consider with the greatest care the guidance that was given in the case of Turnbull and warn the jury accordingly. Of course, a jury may be wrong. In considering any category of offence, the only way to ensure that a jury is never wrong is never to allow a jury to convict anyone. I have a great respect for British juries and I am not unduly troubled on that score.

Something may turn on a witness's opportunity for recognising the defendant and on any reason that he may have had for paying particular regard to him. I once heard someone who had spent time in a concentration camp say, "If someone is peering into your face and you know that he has absolute power of life and death over you, you are not likely to forget his face".

However, not all war crimes cases turn on the issue of identification. In many cases the defendant admits that he is the person in question; what he disputes are the acts imputed to him. Then the question may turn, as one of your Lordships indicated, on the authenticity of documentary evidence. We have good reason to know how meticulously the Nazis made and retained records even of their vilest crimes and how when they fell into the hands of Communist regimes, they were obsessively concerned to preserve them. The American courts have subjected such documents to the most scrupulous examination and have found them to be reliable. Of course, each case must turn on the issues and the nature of the evidence. No one would recommend any lapse in the usual standards.

This country undertook the exercise because there was a campaign by certain national groups in this country on behalf of those who had reason to anticipate that they might be accused of war crimes. It was a campaign to resist any extradition or deportation of those who might be accused. It was said in response to that campaign that, instead of returning them, the British Government proposed that they should be tried in this country. It would be curious indeed if, having rejected the other alternative, we then withdrew from this one. That would isolate us from the whole community of nations where the question has arisen, and it would occasion great hurt to the families of the victims.

My noble friend Lord Merlyn-Rees has already quoted what was said by the authors of the Hetherington-Chalmers Report on the point of whether crimes so monstrous should ever be forgotten. Perhaps I may quote something else of which they reminded us.

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It was a quotation issued by President Roosevelt, Marshal Stalin and Mr. Churchill at the Moscow Declaration in 1943. They said:

    "Let those who have hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied Powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done".

That was said before many of the crimes were committed. I hope that we will not now resile from that obligation.

8.1 p.m.

Baroness Elles: My Lords, it is just about five years since the main debates on the Hetherington-Chalmers Report took place in this House and another place. They were sombre and impressive debates. Whatever view Members of either House took, and whichever way they voted, I think that it can be said, without any fear of contradiction, that every vote was cast while conscious of the great devastation and evil that was committed, and was in no way either for or against the Bill, or could be taken as condoning any of the acts that were committed and that we had debated.

I should like at this stage to welcome the presence of the noble Lord, Lord Lester of Herne Hill, and the noble and learned Lord, Lord Archer of Sandwell, who have joined in these debates, because they have contributed great legal knowledge. I should add modestly that I, too, am speaking for the first time, but do not pretend to add to the great legal knowledge which they are contributing to the debate. I did not speak previously because there were so many distinguished noble and learned Lords speaking in the debate of December 1989. It was not because I was not a Member of the House, and perhaps I should explain that.

It is evident that there will be many more Members of your Lordships' House, as compared with Members of another place, who will have had personal knowledge and experience of the effects of the appalling and evil deeds that were committed and about which we have been thinking tonight. We have had several examples of that. I insist on saying, as some people have said before, that old men forget. The issues through which we lived are never to be forgotten. I was a young WAAF officer at Bletchley during the war in the sector dealing with the German airforce. Of course I am still subject to the Official Secret Acts, but I can say that there were things that passed my desk which I shall never forget.

I went to Crete after the war and saw columns of names of people from the age of six to 76 who were killed by the occupying forces in retaliation. Those, again, are matters that remain indelibly on one's mind. There is no question of forgetting what happened. That is why I put the argument that the War Crimes Act which was passed—I accept that it was passed through the functioning of the Parliament Act—was a piece of legislation which was not necessary to remind us and the world at large of the atrocities and evils that were committed so long ago.

I have a cousin who at the time was a young medical student at the Middlesex Hospital. He, with about 100 others, volunteered to help the Army Medical Corp in

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Germany to deal with health and other related problems. He found himself at Belsen having to clear up some of the appalling situations there. I see that my noble friend Lord Campbell of Croy is not in his place. I should like to tell him that those young medical students had to decide who was fit enough to be kept alive. Those for whom they did not have enough medicines they had to leave to die. Those are things which a young medical student does not forget. Of course the situation at Belsen was one of the most appalling.

To return to the Bill, I should like to support it. It limits the time within which these prosecutions can take place, but the memory of the acts and the record of horror —I repeat this—is not eliminated. My noble friend Lord Campbell of Alloway has argued fully and cogently for such a limitation to be imposed for these particular cases, and he has dealt with the legal and moral issues. I believe that I am right in saying, in reply to what my noble friend Lord Beloff said in a very moving speech, that no one would now be able to evade prosecution by coming to this country because of the Geneva Conventions Act 1957. So even if people in the Balkans were to read Hansard, we need not worry that they would be able to escape to this country to avoid prosecution.

Having dealt with those issues, and with so many other noble Lords having dealt with vital and crucial issues, I wish to deal with two or three practical matters. I believe that it is accepted that all the Scottish cases have been dealt with and withdrawn. According to the Answer given by my noble friend Lady Blatch in this House on 28th November, I understand that 233 of the total of 369 cases have been investigated fully and that the CPS has decided that they will not be proceeded with. Secondly, 15 of the 34 remaining cases are still to be investigated and nine are with the CPS. I have given my noble friend the Minister notice of this question: Has there been any common factor in the investigative reports of the 223 cases which have led the CPS to advise against prosecution and which would be likely or certain to apply to the remaining 24 cases? That is important when we consider the effects of the Bill. I ask that also because I noticed in her reply that there are three cases into which the investigations started only this year. That would be relevant to whether the proposed statute of limitation would apply to those cases and which might result in a prosecution.

My second point relates to costs. I realise that this is a delicate subject and that people may think that we should not be talking about finance when we are discussing the tragedies and evils that have been committed, but it is relevant to today. The cases, in which there has not been one prosecution, have cost over £5 million so far. Those of us who sometimes come into contact with the Metropolitan Police, as opposed to the Metropolitan Police War Crimes Unit, and who are so impressed with the valuable work that they do when dealing with crime on the streets and in people's houses know that they are short of financial resources. Is it therefore justifiable to spend that kind of money on these special cases in which most noble Lords have led me to believe that even one prosecution is unlikely.

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Could not that £5 million be better spent by the police authorities in dealing with today's crimes and seeking to protect present and future victims of crime?

The CPS is heavily burdened in reading through the vast number of documents which result from the investigations. They have led it to advise the Attorney General that there should not be any prosecutions. Is it right that that service which is so often criticised—I must confess that I, too, have criticised it from time to time—for failing to be efficient and occasionally failing to be at court, should be burdened by this extra large and important task when the results are again going to be negative?

No one condones the acts that were committed. Nobody who lived during that period will ever forget them. I do not believe that anyone who hears the debates in your Lordships' House, or anywhere else, or who reads a newspaper will ever forget them. However, I believe that the funds and the people who are being made available to deal with the cases should be diverted to deal with today's problems and not left to deal with those of 50 years ago.

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