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Lord Lester of Herne Hill: I well understand the concerns expressed by the noble Lord, Lord Hylton, but with great respect to him I believe that he is mistaken, as is the noble Lord, Lord Monson.
We do not have a statute of limitations in this country for the crime of murder. Someone who murders on a massive scale or who is guilty of torture is no more deserving of sympathy from the point of view of limitation than anyone else. The statute of the ICC deals with the problem in a sensible manner. Article 29 rules out an automatic statute of limitations, but Article 64 is one of several provisions that confers strong protection on the accused, stronger than is given in the express language of the European Convention on Human Rights and stronger than is given in the International Covenant on Civil and Political Rights. One of the overriding objectives in Article 64, paragraph 2, is that the trial chamber must ensure that a trial is fair and expeditious and conducted with full respect for the rights of the accused.
From all the international human rights case law, it is quite clear that, where it is impossible to conduct a fair trial because witnesses have forgotten facts and the events are so stale, the trial chamber or court will stay the proceedings just as they will in this country or in any other country that respects the rule of law. Therefore, the International Criminal Court is given a very wide discretion. In addition, there are very stringent obligations on the independent prosecutor to ensure that the rights of the accused are respected. We should take that into account. That seems to me the right way of dealing with it--not to have an arbitrary 20-year limitation period, which we do not have in our own legal system for very serious offences, but to leave it to the trial judge and the prosecutor to exercise their discretion on the basis of proper legal principles. For that reason, I oppose the amendment.
Lord Monson: Before the noble Lord, Lord Lester, sits down, will he agree that a person of, say, 78, is a totally different person in every way from that same person at the age of 18?
Lord Lester of Herne Hill: I agree with that. However, some crimes are committed in extreme circumstances. To make it a little less prejudicial than the way it is put, if someone between the age of 25 and 30 commits mass murder, the crime of genocide, and is exposed 30 years later at the age of 50 or 60, under the statutory limitation, prosecution would automatically be ruled out. That would not accord with the purposes of the International Criminal Court or the general law relating to humanity and war crimes. The discretion has to be built in. The discretion is not about forgiveness. It is about whether there can be a fair trial.
Lord Avebury: The crime of genocide and crimes committed in grave breach of the Geneva conventions
are already subject to no limitation. It surely would be an anomaly to insert into this Bill a limitation which would then automatically apply to the crimes deemed to be so serious that there should be no limitation on them.I should like to ask the noble Lord, Lord Hylton, to consider another argument. Technological advances in the field of forensic evidence may make it possible for an offence to be brought to court years after the event. We have experienced that in our own domestic courts. The remarkable technological advances relating to DNA matching have enabled us to bring murderers to justice years-- perhaps not as many as 40--after the crimes had been committed. One recent case was brought to trial well over 20 years after the commission of the offence. We do not know what technological advances might be made in the future, enabling us to bring to trial people who may be prosecuted before the International Criminal Court under these provisions. For that reason, it surely would be unwise to fetter the jurisdiction in the way suggested by the noble Lord.
Lord Williams of Mostyn: There is a fundamental difference of approach here. First, this is not retrospective jurisdiction. The noble Lord, Lord Hylton, is therefore quite right on one basis, although he is quite wrong in the proposition that he will not be here in 40 years' time to scrutinise the working of this legislation. So his amendment--and this must be a first, even in your Lordships' House--would only come into effect 40 years from now.
I entirely agree with what has been said by the noble Lords, Lord Avebury and Lord Lester. Our jurisprudence does not normally operate on the basis of a statute of limitations. Hitler was not an old man between 1933 and 1939; nor was Stalin, at the height of his crimes; nor was an extremely young officer in the German armed forces named Eichmann; nor was Beria very young. All I can do is quote, and then modify, what Senator Irvine said in the Nixon hearings: "God is not mocked". I say that justice should not be mocked by the passage of time.
Lord Hylton: I appear to have started a hare, and perhaps, from a layman's point of view, quite a good hare. I shall certainly reflect on what has been said. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 5:
- Page 2, line 11, after ("demonstrate") insert ("beyond reasonable doubt").
The noble Lord said: This amendment concerns Clause 2(4) of the Bill. It deals with a situation in which an individual has been convicted by the International Criminal Court but the subsequent request for his arrest and surrender is not accompanied by a warrant of arrest. The Bill stipulates that if, nevertheless, the request is accompanied by a copy of the judgment of conviction, information to demonstrate that the
person sought is the one referred to in the judgment, and a copy of the sentence imposed, the responsible judicial officer shall issue a warrant for the arrest of the person to whom the request relates. This amendment relates to that part of the clause concerning the information to demonstrate that the person sought is the one referred to in the judgment.In our submission, a high standard of proof should be required before the judicial officer issues the warrant. I hope that the noble and learned Lord the Attorney-General will agree that it is very important for the courts to make sure that the right person is surrendered. In my view, it is highly desirable that, in those circumstances, the standard of proof should be "beyond reasonable doubt". I beg to move.
Lord Williams of Mostyn: I am not willing to accept this amendment. Clause 2(4)(b) and 2(4)(c) reflect the wording of the statute. The amendment to Clause 2(4)(b) precisely follows the wording of Article 91(3)(c) of the statute. If the request were made, a copy of the judgment of conviction provided and information to demonstrate that the person sought was the one referred to, the point about identity would be taken in the court itself. First, I submit that since we are putting the statute into effect in this Bill, it is right to do it in this way. Secondly, there is nothing inconsistent with the normal judicial pattern in extradition hearings.
We have had experience, fortunately not too recently, of rather tendentious arguments about technical points. My view is that the proper way in which to proceed is to provide the safeguards in the statute and that ultimately, if it is suggested by a convicted person that he is wrongly held in custody, it should be for the trial court to determine that issue.
Lord Kingsland: I am most grateful to the noble and learned Lord for his reply. It is clear that the International Criminal Court knows who the right person is. The problem faced by our courts is making sure that the person before them is the right one. There must be some standard required of the court in those circumstances. If the noble and learned Lord is not prepared to accept "beyond reasonable doubt", would he be prepared to accept "more likely than not"? If he is not prepared to accept "more likely than not", it would mean that, even where the court was less than 50 per cent certain that the person in front of it was the right person, somebody might find themselves on their way.
4.30 p.m.
Lord Williams of Mostyn: The difficulty with that approach is that if the single issue before the ICC is identification--for example, that was the question before the Israeli Supreme Court in the case of Demjanjuk--that matter will be relitigated at an inappropriate stage. I believe that here there is every safeguard at the early stages. To paraphrase the position, this is merely a request for the surrender of a convicted person to the jurisdiction of the ICC. If it is to be said that the wrong person has been arrested, that
point should be made in the convicting court, not as a preliminary issue to be decided beyond reasonable doubt.If the present drafting of the Bill requires that matter to be demonstrated, then it must be more likely than not for the demonstration to have occurred. If it is less likely it has not been demonstrated. I do not prejudge the decisions of courts, but I believe that that follows. Let us assume that the noble Lord, Lord Kingsland, and I sat in court and heard an application to demonstrate something. If either of us concluded it was very unlikely that that was right, we would not have satisfied ourselves judicially that the matter had been demonstrated.
Lord Kingsland: The noble and learned Lord answers my point and goes some way to meet the problem that I pose. In his view it would be absurd if a court did not satisfy itself, at least on the balance of probabilities, that the individual before it was the individual described.
Perhaps I may assist the noble and learned Lord in this dilemma so that he does not face it in future debates in Committee. The noble and learned Lord referred on several occasions to the statute. Does the noble and learned Lord agree that the correct approach to the interpretation of the statute is a purposive one and that it would be wrong to become simply a prisoner of the text? If so, surely in considering the Rome statute he should apply the same interpretative approach as he would apply to our own statutory law.
In the context of the Human Rights Act, perhaps the noble and learned Lord will go further and say that his approach to the statute is on the basis of Section 3(1) of that Act. I cannot judge whether the noble and learned Lord the Attorney-General would be prepared to go that far. However, as the noble and learned Lord recognises, it is commonsense that a court must be satisfied on the balance of probabilities. I would have preferred him to go further and accept the text of the amendment which requires that the court be satisfied beyond reasonable doubt. For present purposes, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 and 7 not moved.]
On Question, Whether Clause 2 shall stand part of the Bill?
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