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Lord Tebbit: My Lords, I am grateful to my noble friend for giving way. I doubt whether my device will be superior; I think that it may be more effective; and it will undoubtedly be triggered on Wednesday.

Earl Attlee: My Lords, I thank my noble friend for that intervention.

I agree with every word that I have heard this evening. I should like to draw the Minister's attention to a possible condition that the Secretary of State may decide to impose on any licence given. As Guardsmen Fisher and Wright are serving soldiers, it would be possible to remit them to the charge of their commanding officer. They would then effectively be confined to barracks. That would obviously be a temporary measure. It would of course make the Secretary of State's decision easier and less risky and therefore more speedy. I hope that the Minister will draw that possibility to the attention of his right honourable friend the Secretary of State.

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8.20 p.m.

Lord Thomas of Gresford: My Lords, there is a long and ancient history which supports the presentation of an Address to Her Majesty on every matter of foreign and domestic policy, including the administration of justice. We support fully the presentation of such an Address in this exceptional case. It is a step forward that the Government have indicated to the noble Lord, Lord Campbell of Alloway, that they do not intend to oppose his Motion.

The Monarch swears in the Coronation Oath that justice in this country shall be "administered in mercy". Sir William Blackstone, the great legal historian, traced the history of the royal pardon to the laws of Edward the Confessor. He said:

    "the royal prerogative of mercy ... is part of the power of the Sovereign of his pure grace to show mercy to an offender by mitigating or removing the consequences of conviction".

It is important to understand that a pardon does not necessarily remove the conviction itself. We have an adversarial process in this country which is designed to examine the evidence, but only the evidence which is put before the court: our processes are not concerned with the unfettered pursuit of the truth. In this case I have already commented on the fact that the trial judge could act only on the evidence placed before him. Judges have the power to call witnesses themselves, but it is rarely exercised. Here, the prosecution chose to rely upon the evidence of three bystander witnesses on the vital question as to whether the sergeant searched McBride. Their account at the trial differed in significant ways from their original statements to the police. Neither Swift, nor Williams, who was with him, was called to give evidence for the prosecution. The defence cannot be criticised for refusing to put their clients' interests at risk by calling them themselves.

The conviction then went on appeal, but the Court of Appeal has a limited function: it is only to supervise the operation of the lower courts and to correct their mistakes. It is not to hold a re-hearing of the facts which the tribunal of fact--here the judge alone--has decided. In this country the principle that the verdict of a jury is virtually sacrosanct prevails. It is less obvious that that principle--the findings of fact by a single judge in a Diplock court--should apply to those decisions.

A jury, from time to time, will acquit where justice demands. It may acquit in the teeth of the evidence. The Clive Ponting case is an example where a jury acquitted even though directed by the trial judge to convict. A jury may also convict when to the professional eye there is inadequate evidence, but almost invariably the instinct and common sense of the jury are correct. A judge who sits alone is trained professionally to analyse and sift the evidence that is put before him. His instinct is ruled out. If mistakes may happen in jury trials--we know that they do--how much more likely are they to occur in a Diplock court under the adversarial system?

The prerogative of mercy recognises that the judicial process is fallible and that the evidence before the court does not necessarily give rise to the right decision. The prerogative has different uses: to be merciful--for example, a free pardon to someone who is terminally

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ill; to substitute one form of punishment for another--for example, the commutation of a death sentence to life imprisonment; but, importantly and thirdly, to recognise that the public interest may no longer be furthered by having an offender serve the full penalty imposed. That may be because of doubts that arise subsequent to a trial about the soundness of the conviction.

Lord Justice Watkins, when he was considering the Bentley case--which is back today before the Court of Appeal--in 1994 (QB at 365) said:

    "The prerogative is a flexible power and its exercise should be adapted to meet the circumstances of the particular case. We would adopt the language of the Court of Appeal in New Zealand....'the prerogative of mercy can no longer be regarded as no more than an arbitrary monarchial right of grace and favour'. It is now a constitutional safeguard against mistakes".

Here, the Address is aimed not necessarily at a free pardon: Her Majesty is asked to exercise the prerogative of mercy:

    "to release Guardsmen Fisher and Wright from mandatory life imprisonment in exceptional circumstances".

It is to ask for a remission of their sentence. The noble and gallant Lord, Lord Bramall, inquired as to the constitutional position. The exercise of the prerogative has, by convention, rested with the Secretary of State since the accession of Queen Victoria in 1837 because, as Fenton Bresler once put it, she was regarded as both too young and of the wrong sex to preside over a "hanging" cabinet.

Perhaps I may therefore draw the Secretary of State's attention to the George Davis case in 1976 when, as noble Lords will remember, a long public campaign went on. The then Home Secretary, my noble friend Lord Jenkins of Hillhead, as he now is, decisively exercised the power of prerogative. He said:

    "I do not have evidence of Mr. Davis' innocence to justify my recommending a free pardon. I have considered whether I should refer the case to the Court of Appeal ... But this would be a lengthy process and it is not at present clear that all the relevant material now before me could be considered by the court. My conclusions about the shift in the balance of evidence in the case are such that it would not be right for Mr. Davis to remain in prison any longer. I have therefore decided to recommend the exercise of the Royal Prerogative to remit the remainder of Mr. Davis' sentence. He is being released today".

When later questioned about whether that created a precedent he said:

    "I always look extremely carefully at all individual cases ... I am sure my hon. Friend and the House will appreciate, it is important that one should proceed in these matters with expedition and decisiveness when one is convinced that it is right to do so. One should not get in to the position of not being able to do what is right in a particular case because to do so would mean having to act in the same manner in a number of cases which may be far less strong".--[Official Report, Commons, 11/5/76; cols. 230-33.]

So the question of precedent is not something that should hold back the Secretary of State.

There is an overwhelming case for saying that the full truth did not come out at this trial due to the selectivity of witnesses called by the prosecution. But, irrespective of that, it is manifestly unjust that those two guardsmen should remain any longer in prison.

Much concern is exercised for the sensitivities of the Protestant and Catholic communities in Northern Ireland. They are to get--perhaps rather more quickly

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than public opinion in England, Wales and Scotland might allow--their unique and novel machinery for remission. The basic sense of justice and fair play which moves the people on this side of the water should equally move the Secretary of State to release these men, not, as the noble Lord, Lord Chalfont, said, after ponderous review but tomorrow.

8.30 p.m.

Lord Kingsland: My Lords, in this harrowing matter it is important to keep distinct two issues: the safety of the conviction and the speed of release. The affidavits have revealed incompatibilities and inconsistencies in the evidence; and your Lordships have referred to many of those today. These matters are now before the Criminal Cases Review Commission, and in time it will report to the Court of Appeal. Unfortunately, until its report reaches the Court of Appeal there will be no opportunity of bail for the guardsmen. If they are to be released now, we have to consider other mechanisms, one of which is before your Lordships' House this evening; the Royal Prerogative of Mercy.

However, there are three other mechanisms. One is the Northern Ireland (Sentences) Bill which is due to come on to the statute book at the end of this month. I understand from the noble Lord, Lord Dubs, that releases are expected from the beginning of September.

Of the two other mechanisms, one is the general power of the Secretary of State, after consultation with the trial court and the Lord Chief Justice, to release those who have been convicted of a life sentence. Finally, there is the regular reporting of the Life Sentences Review Board. So we have four ways in which release can be manifested now. Each one of those is a decision for the Secretary of State for Northern Ireland.

What has the noble Lord, Lord Dubs, said about the way in which the Secretary of State is confronting that decision? It is revealed in the debates of 6th and 16th July. We understand that the Secretary of State is not confining herself to any one of those procedures but is looking at substantive matters which underlie all four: the court decision; the affidavits; the decision of the review body; listening to what your Lordships have said; and considering wider issues as well.

In the debate on 16th July, the noble Lord, Lord Dubs, said that he expected the Secretary of State to complete her consideration by the end of August. In the Opposition's submission, the end of August is far too close to the beginning of September when the first releases are expected under the Northern Ireland (Sentences) Bill.

Let us consider the dilemma that those guardsmen faced--a dilemma which is not new to British servicemen. It is a tightrope. If one disobeyed orders, not so long ago one could be shot. If one pulled the trigger in the wrong circumstances one could be hanged. Fortunately, the consequences of getting it wrong are not so drastic as they used to be; but the dilemma is exactly the same.

Let us contrast that with the dilemma--if that is the right word--of the terrorist. The two situations are not morally on the same plane. In Her Majesty's Loyal

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Opposition's opinion, it would be wholly wrong for the Government to intermingle the release of these men with the releases we expect of former terrorists at the beginning of September.

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