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War Crimes (Supplementary Provisions) Bill [H.L.]

6.51 p.m.

Report received.

Clause 1 [Limitation]:

Lord Wilberforce moved Amendment No. 1:

Page 1, line 6, leave out ("the passage of this Act") and insert ("this Act comes into force").

The noble and learned Lord said: My Lords, in moving this amendment I shall also speak to Amendment No. 2, which is in my name, together with that of the noble Lord, Lord Campbell of Alloway. At the same time, noble Lords may also care to cast an eye upon Amendment No. 3 in the name of the noble Lord, Lord Mishcon, which relates to the same subject. I need not explain the amendments; they are completely self-explanatory. I should just like to add a word or two as to the motivation for putting them forward.

As noble Lords will know very well, the War Crimes Act 1991, to which this Bill is supplementary, was a House of Commons measure; it was passed there by a large majority, and was not welcomed by this House. However, it became law under the constitution and it must be accepted as such. I feel absolutely convinced that none of your Lordships would wish to treat it otherwise. It is the law, and we would not wish in any way to undermine it or stultify it at this stage. It was in that spirit that I looked at the Bill.

When I first saw Clause 1 as originally drafted, I must say, with all respect to the noble Lord, Lord Campbell of Alloway, that I thought it was perhaps a little confrontational. I am sure that noble Lords would not wish it to be so. I am also sure that noble Lords would wish to avoid any appearance of confrontation or of attempting to stultify the Act of 1991. In that spirit, I

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thought of introducing the idea of a closing period—a decent period after the Bill comes into force—which would establish a limit for prosecutions under the Act.

The fact that I introduced this clause in the amendments was intended to reflect the opinions of many noble Lords who spoke on this Bill at Second Reading, when, as noble Lords will remember, there was a very extended debate. It was also my intention to reflect a good deal of the feeling in the other place when the 1991 Act was debated, and when it was emphasised, not once but many times, that there was a need for urgency and speed in disposing of this matter.

I note also that the noble Lord, Lord Mishcon, in his Amendment No. 3, follows in effect the language of Amendment No. 1 and does not seem to disagree in principle with the establishment of a time limit—though the noble Lord has a different period to put before your Lordships. I note also that there is no amendment before the House to delete Clause I of the Bill, which is the clause that would remain were neither of our amendments to be accepted. The principle of introducing a moderate—a reasonable—period might be acceptable to the House.

As to the period itself, I chose the period of three months: one has to think of some figure, and that seemed reasonable, giving us in effect about six months or slightly longer from this time. It also seemed to bear some relation to the timetable, in so far as we know it, of the investigations, the prosecution considerations by the CPS, and so on. I will not enlarge upon that; noble Lords will have the dates in mind, and the noble Lord, Lord Campbell, or the noble Baroness may wish to amplify the point. That was the basis on which I ventured to select the period of three months.

I suggest with all respect that this is not an undermining amendment. It is not one that stultifies or repeals the Act of 1991. (I take those words from previous debates.) It is well within the intention of the present Bill, as expressed by many noble Lords at Second Reading, and I believe that it reflects a good deal of the intention of the other place as expressed in 1990. So far as concerns the Government, I think I can safely say that the amendment renders the present Bill less unacceptable than it would be without it. I do not pretend that I shall go over the edge to "acceptable", but it makes it "less unacceptable".

I shall pay very great attention to what is said about the amendment by the noble Lord who is the sponsor of the Bill. I was very cheered and heartened when he decided to add his name to it. If he has any comment or suggestion as to its future course, I will of course pay very great attention. At this point I beg leave to move Amendment No. 1.

Lord Campbell of Alloway: My Lords, the Government are committed to opposing Amendments Nos. 1 and 2, and also Amendment No. 3, for the reasons already given at Second Reading. The Government will countenance for all time, without limitation, that suspects who have the presumption of innocence, however so long investigated, and whensoever investigated, or to be investigated, may be

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charged and tried under the Act. In so doing, they will keep, so to speak, the cell door ever open, if not, at least, ajar.

Noble Lords may well think that the crucial point in the speech of the noble and learned Lord, Lord Wilberforce, on his motivation for introducing Amendments Nos. 1 and 2 was the affirmation of the rectitude in introducing some period of limitation to end an extraordinary situation which could not have been envisaged. For, as noble Lords may remember, when this Bill was before Parliament some five years ago, both Houses were assured that, on the evidence then available but not disclosed, these trials were then warranted. It was assumed that they would ensue with dispatch in accordance with our concepts of justice, and that they would be fair.

That point was strongly insisted upon by the noble Lord, Lord Mishcon, whom we are delighted to see in his place this evening. We hope that he has recovered from his unnerving experiences. By his amendment, as I understand it, he accepts, as my noble and learned friend said, the principle of Clause 1 of the Bill as well as its other provisions. I shall listen, as I always do, with deference and respect to what the noble Lord, Lord Mishcon, may say in due course. But, as at present advised, I should not be prepared to accept his amendment, for reasons which perhaps I may give later. However, I am very much indebted to the noble Lord for his support in principle of the Bill.

With regard to proceedings before Parliament, some five years ago it was not envisaged by another place that the police investigations, which were set up in 1988, would continue in one form or another until today; that, notwithstanding the ending of the specific police grant funding for the unit on 31st March this year, the investigations would continue thereafter; that no steps would be taken to expedite any decision by the CPS on whether to seek the consent of Mr. Attorney to the institution of proceedings; and that the Government would be content to be unable to say when any such decision would be made. To save time, I refer your Lordships to the Official Report of the other place on 12th January at col. 266 and to a letter dated 13th February 1995 that I received yesterday from the Home Office.

Again, some five years ago it was not envisaged by the other place that today there would still be 21 suspects in England, 15 of whom have been under investigation since 1988, and who had been candidates for prosecution since before 29th June 1994, when all those living in Scotland had been excluded by the Lord Advocate. It was not envisaged that two investigations would have been instituted as late as last year, 1994; nor indeed that further investigations could be initiated for all time in the future. That was never within the possible contemplation of the other place or indeed of your Lordships' House, having regard to the manner in which the Government then put forward this Bill.

If charges are to be laid this year within the period of the proposed amendment, we are looking at a delay of some 52 to 57 years before substantive trial. Your Lordships may well feel that these amendments, as the noble and learned Lord said, afford a modest and

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reasonable opportunity for the CPS and Mr. Attorney to decide whether to charge on the available evidence. They are not stultifying amendments; they are not confrontational amendments; and they are not unreasonable amendments. Indeed, they all but commend themselves in the name of justice.

7 p.m.

Lord Mishcon: My Lords, having been engaged in activities which I assure your Lordships in some cases were not so pleasant as addressing your Lordships' House, I was not able to participate in the previous proceedings on the Bill. I appreciate the courteous remarks made by the noble Lord, Lord Campbell of Alloway, who always speaks with courtesy. Sometimes he makes comments with which I do not agree, but they are always said with great moderation.

I should like to make it absolutely clear—otherwise I should be insincere—that I have never liked this Bill. Having said that, I believe it to be the duty of this House, when a Bill is presented to it, whether it be a private or a public Bill, to ensure that it is in the best possible state before it goes to another place. I have taken it for granted that when your Lordships allowed the Second Reading of the Bill, they approved of the principle of the Bill. I am sure that every Member of your Lordships' House takes a respectful view of what the House did at Second Reading. Accordingly, in my judgment, it is the duty of every Member to try to ensure thereafter that, if the principle has to be admitted, at least the Bill leaves this House in the best possible state. Therefore, my amendment is not meant to be a wrecking amendment. It is meant to be an improving amendment.

Perhaps I may give your Lordships my reasons. In the first place, as a lawyer—a humble one in the presence of the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Campbell of Alloway, but one who, in all humility, insists upon saying what he has to say—I find that at the very least the House should be very wary about the question of limitation in regard to heinous offences, which has not been admitted in our law over the centuries. There is no statute of limitations that applies to murder, manslaughter or culpable homicide in our law. But we have made an exception, in agreeing to the principle of this Bill, so that the heinous war crimes of which this House is very well aware should have a limitation period attached to them.

Therefore, my first reason for tabling my amendment is to ensure that, if we have to admit that principle, as long a period as is reasonable ought to be put on the face of the Bill, so as at least to show the Bill's unusual nature. When it goes to another place, we should realise that we are doing something very exceptional, as I said, by allowing as long a period as is reasonable. I should have thought that a 12-month period, from the date of Royal Assent, was right.

My second reason advanced for that period is that it does no harm. If we agree to the limitation period and that Clause 1 of the Bill provides adequate time for a prosecution to be brought, we ought to give as long a period as we reasonably can. Your Lordships will bear in mind that there are investigations taking place and it would be quite wrong to cut them off if they are likely

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to lead to a prosecution out of respect for those who are conducting the inquiries. I refer, of course, to the police, the Crown Prosecution Service and thereafter the final sanction of the Attorney-General, for whose judgment I hope your Lordships would always have respect.

Are we doing any harm as regards the rest of the Bill by allowing 12 months after Royal Assent? Clause 2 declares that the Crown Court can have jurisdiction to quash the indictment on the grounds it sets out. It was conceded on all sides that although the insertion of that clause does no harm, it certainly adds nothing to our law because that is the right of the Crown Court in any event. There is thereby no harm done in regard to Clause 2 in having an extended period of limitation.

When we consider Clause 3—the only other operative clause in the Bill—we see that it gives a certain jurisdiction to the Court of Appeal to deal with cases where there is doubt as to whether there is likely to be a fair trial. Either that is something which ought to be given in all criminal cases because it is a just procedure, or it is not. As it stands, it is a right which is limited to war crimes. Either it is right that the Court of Appeal should have that jurisdiction—at the moment it only has jurisdiction after conviction—or it is not. If it is right and it is a sensible procedure, then we should have time to consider the matter in Parliament and apply it to all criminal cases. Why should it be selected only for war crimes? Again, an extended period would give the opportunity, if Parliament so decided and so wanted, to deal with that procedural point which may or may not be an improvement to our criminal law.

Having spoken to Amendments Nos. 1 and 2, I tabled my amendment for consideration by the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Wilberforce, as to whether, having heard what I have to say —I say this with great respect to them—they can concede the amendment so that it will go to another place with your Lordships at least having shown that, when admitting this principle, your Lordships have been careful to ensure that an unjust precedent is not set.

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