Clause 63 — Cases that may be Retried

Orders of the Day — Criminal Justice Bill — [2nd Allotted Day] – in the House of Commons at 8:16 pm on 19th May 2003.

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Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 8:16 pm, 19th May 2003

I beg to move amendment No. 18, in page 41, line 7, leave out 'a qualifying offence' and insert—

'murder or rape, contrary to section 1 of the Sexual Offences Act 1956'.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to take the following:

Amendment No. 479, in page 41, line 7, leave out 'a qualifying offence' and insert—

'murder, genocide consisting in the killing of any person, or corporate manslaughter'.

Government amendments Nos. 462 to 465, 357 and 466.

Amendment No. 480, in page 41, line 38, leave out

'an offence listed in Schedule 4' and insert—

'murder, genocide consisting in the killing of any person, or corporate manslaughter'.

Government amendment No. 467.

Amendment No. 19, in page 188, line 1, leave out Schedule 4.

Amendment No. 129, in schedule 4, page 188, line 8, leave out paragraph 2.

Amendment No. 130, in schedule 4, page 188, line 16, leave out paragraphs 5 and 6.

Government amendment No. 423.

Amendment No. 131, in schedule 4, page 188, line 23, leave out paragraphs 8 to 18.

Government amendments Nos. 424 and 425.

Amendment No. 132, in schedule 4, page 190, line 7, leave out paragraphs 21 to 29.

Government amendments Nos. 474 and 475, 468 and 469, and 358 and 359.

Amendment No. 20, in page 42, line 41, leave out 'is' and insert 'appears to be'.

Amendment No. 21, in page 43, line 1, leave out 'is' and insert 'appears to be'.

Government amendment No. 360.

Amendment No. 22, in clause 66, page 43, line 2, leave out paragraph (c) and insert—

'(c) it is material which a jury properly directed might reasonably convict.'.

Government amendments Nos. 361 to 373, 470 to 472, and 374 to 376.

Amendment No. 61, in clause 73, page 47, line 44, leave out 'and'.

Amendment No. 62, in page 47, line 45, at end insert

', and

(c) has sought leave from a judge of the Crown Court on an exparte application.'.

Government amendments Nos. 377 to 420.

Government new clause 42—Restrictions on publication in the interests of justice.

Government new clause 43—Revocation of bail.

Government new clause 44—Armed Forces: Part 10.

Government new clause 54—Application of Part 10 to Northern Ireland.

Government amendments Nos. 421, 473 and 422.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 8:30 pm, 19th May 2003

We shall now consider an area of the Bill that certainly caused me a great deal of anxiety in Committee. It was clear in Committee that there were vastly differing views about the correct approach that the House should have to the issue of retrial and double jeopardy.

A principle was long enshrined in our law—it certainly went back to the middle ages—that a person should not be in jeopardy twice for the same offence. The underlying principles were sound ones. In an age when the state could often act oppressively and, indeed, intended to do so, it was the one protection that a person had against continuous oppression by the state. Once a jury had had the courage to return a not guilty verdict, the issue could not be reopened. Some of the accounts of state trials in the 14th century show that the jury that did return a not guilty verdict was exposing itself to fairly severe sanctions. Notwithstanding that, once the jury did it, it was accepted that there was nothing that the state could do to re-prosecute.

We are talking, historically, about one of the great pillars of our liberties. We must therefore raise a question mark. Indeed, some Members have done so in Committee and in the House. Why has it been thought right to interfere with the principle by providing in the Bill the mechanism by which a person may be retried, having previously been acquitted, on the basis that new evidence has come to light on which he could properly be convicted?

The approach that the Opposition have adopted is essentially a pragmatic one. We have said that we accept, especially with the arrival of much better scientific evidence, including DNA, that many people would regard it as offensive in regard to the most serious of crimes if a person, having previously been acquitted because of insufficient evidence, found themselves when that evidence emerged some time later, in a matter that had caused the public huge disquiet and anxiety, incapable of being prosecuted again, and protected against prosecution, when the public would consider that it was of great public importance that the individual should be retried for the offence and, if the evidence was good, convicted upon it.

The matter has been considered over and over again. In particular, it was considered by the Law Commission. The commission's view—it has been reflected by the sorts of cases that have come to the public's attention—was that the mechanism for retrial should be confined to murder. However, Lord Justice Auld—I regret to say that it was in a fit of some deliciously woolly thinking, but perhaps I am allowed to say that nowadays, it being permissible since the Home Secretary has now allowed us to criticise members of the judiciary—

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

As the hon. Gentleman says, it is compulsory.

Lord Justice Auld felt that it was necessary, or might be desirable, to apply the approach to other grave offences. The problem is that the Government, having considered what constitutes other grave offences in schedule 4, have come up with 30 offences that they consider should lead to retrial.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

As the hon. Gentleman says from a sedentary position, an extra one is being added.

As in the previous debate on jury trial, there is the lurking anxiety and suspicion that this, in the inevitable way, will be only the start, and that once we go down this road we shall find in the years to come that there will be pressure to add other offences to the list.

I shall give the Minister an example. Let us say that a group of people commit a vicious armed robbery with machetes. They terrorise their victims and seize huge amounts of cash. It is something that causes a sensation when it happens, and they are acquitted. Under the provisions of schedule 4, they could not be retried. On the other hand, someone who is convicted of, I regret to say, the somewhat prosaic offence of supplying, or offering to supply, a class A drug—something that can be found to be taking place in small quantities at King's Cross virtually every day of the week—will come within the schedule. The criterion is that the offence attracts a life sentence.

Many offences attract life sentences on the statute book. Some offences do so because they are at common law and have never had a period of sentence defined for them.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

What about an offence of murder that is effectively a mercy killing? In the hon. Gentleman's mind, surely that would not come within the proper definition that he is seeking, which is a really serious offence.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I accept the hon. Gentleman's point. It is a perfectly fair one. It might be said that there are different categories of murder in terms of the horror with which it is regarded by the public. Notwithstanding that, my impression is that the Law Commission selected the offence of murder for precise reasons. I suppose that short of high treason, murder has always been regarded as the most serious offence in the calendar. It is the malicious deprivation of another person's life, in circumstances where the jury convict. With mercy killings, juries have sometimes adopted a merciful view of the person who killed. In my experience, when juries convict in those circumstances, it is usually because they think that that which happened went rather beyond what a right-thinking person, being flexible with the law, would regard as proper.

The Law Commission had some sensible views on the subject.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Is not the advantage of the Law Commission's restriction that it is objective? It refers to a specific class of crime which is seen universally as the most horrific crime. The difficulty with the Government's list—this is proved by the addition to the list—is that it is not objective. It tries to say that it relates to those things that shock people the most. Is it not a bad principle of law that we ask that that which shocks people should be subject to double jeopardy?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I agree entirely. The argument for murder is that we must accept that someone who has a propensity to kill other people is potentially a serious public menace. I am sure that one of the reasons that weighed so heavily on the mind of the Law Commission was that there is enormous public interest in trying to ensure that such a person may not strike again. The sorts of cases that we have often heard about and commented about have been those where murder has been committed by an individual and other people are fearful that because of the murderer's psychopathic personality or other features, there might be a repeat offence.

The Minister knows, and his predecessor in the post knew, that I was and am unhappy with the prospect of departing from the time-honoured protection provided by principle of double jeopardy, notwithstanding the fact that, adopting the pragmatic approach that I said at the outset was the hallmark of our party's approach to the matter, I was prepared to consider making an exception. As will be seen from amendments Nos. 18 and 19, we have suggested that the provision should be confined to offences of murder and rape only.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

The hon. Gentleman says that the Opposition's approach is pragmatic. He will recall from an interchange in Committee, when Mr. Malins was struggling to identify the serious offences to which similar wording might apply, that there was some banter about genocide. Should not genocide come within the definition?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

That is a fair point. As the hon. Gentleman knows, some of his hon. Friends, fellow Back Benchers, have tabled amendments separate from ours that take a slightly different approach. Those hon. Members have run through the entirety of schedule 4 and sought to identify what they consider to be the most serious offences. That is wider in scope than amendment No. 18.

If the Minister suddenly stood up and said that the approach adopted by his hon. Friends was the correct one, in a spirit of compromise, I would not press my amendment to a Division, and we would go away and try to resolve the issue. There is an issue pragmatically and legitimately to be considered about eroding the double jeopardy protection. However, it is the Government who reiterated in Committee—the hon. Gentleman will remember the Minister's words—that they recognised that the double jeopardy rule was an important protection, and they wanted only to erode it slightly in those areas that they considered important to ensure that public confidence in the criminal justice system was maintained. When I look at the lists and compare them with what I consider to be the key areas of public disquiet, I think that the Government have got it wrong.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

My hon. Friend is advancing the argument well. Given that the principle of double jeopardy is so important, and the difficulties that we had in Committee in going through a series of offences that would be covered by the new rule, is not one of the strongest arguments for his amendment that we should move very slowly and one step at a time? By including only murder and rape at this stage, we can watch to see how the law develops before widening it. That, once done, is difficult to withdraw.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I entirely agree with my hon. Friend. One aspect that causes me disquiet is that, although the matter was considered carefully by the Law Commission—I cannot pronounce on Lord Justice Auld's approach—I do not believe that much thought was given to it before the Government embarked on it. One of my reasons for saying that was what happened in the Home Affairs Committee when it sat briefly and rather imperfectly, as the Committee itself admitted, to consider the wide range of changes that were being introduced.

When Lord Falconer of Thoroton was giving evidence on 26 November 2002, the Chairman asked:

"How many offences can be retried under double jeopardy?"

Lord Falconer replied:

"I think the number is 30, and aiding and abetting as well. It is Schedule 4, page 181 of the Bill."

The Chairman responded:

"Thank you. It does seem rather a lot more than most people previously anticipated—or indeed the Government suggested."

Lord Falconer said, "Yes." The Chairman continued:

"These things have a habit of growing, do they not?"

At that point, Mr. Chisholm interrupted and said:

"The Law Commission originally set it as being murder but Lord Justice Auld said it should extend to other grave offences. What we did was look at all offences that attracted a maximum of life imprisonment, and these are only some; these, ministers decided, were the most serious under that category and they were the ones that ministers agreed should attract the possibility of retrial."

I note, first, that Lord Falconer did not answer the question but left it to an official to do so. I also note that the answer from the official gave no explanation or indication of a rationale behind the selection, apart from the reason that there were some offences that looked rather nasty to the Government when they looked down the list. That is not good enough, given that the measure represents such a radical departure from established practice.

As the Minister knows, from the many amendments that the Government have introduced to try and improve this part of the Bill—I will go on to welcome some of the steps that they have taken—the mechanism of retrial will be complicated. It will be complicated to achieve a just result, and it will be complicated to implement the mechanism properly without trampling on the civil liberties of the individual being investigated. The measure is far from being one that will allow the Government to click their fingers and start again. Getting a fair trial, ensuring that the public have confidence in the process, and ensuring that at the end, criminals consider that they have been justly convicted, which is an important part of the criminal justice process, will be extremely difficult to achieve. Surely, that is all the more reason why we should restrict the scope of this experimental project to a limited number of offences. We could limit it to the murder offence only, as the Law Commission suggested, but we seek to include rape as well because we are perfectly aware of the dangers attendant on it, public abhorrence of it, anxiety about its increase and, in particular, the fact that scientific evidence is often key in determining at a subsequent date that an offence was probably committed when the scientific DNA evidence was not available at the time of trial.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West 8:45 pm, 19th May 2003

The hon. Gentleman has been generous in giving way. I wish to push him on the question of practicality or pragmatism. As I read things, if amendment No. 19 were agreed to, it would leave out attempted murder, manslaughter and attempted rape, which are currently included in schedule 4, which it seeks to remove. How does he deal with that point?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Very simply. Attempted murder may well have many of the very unpleasant ingredients of the complete offence, but the fact is that it is a lesser offence and has always been regarded as such, and the line has to be drawn somewhere. That is the problem. The Government say, "Oh, well; we'll draw the line at 30 offences", but then tell us on Report, "Actually, we'll make it 31."

Once the double jeopardy rule is got rid of, there is an inexorable logic for saying that every offence is capable of being retried. I can think of no philosophical reason why, once we open the floodgates, we should not go the whole way. It is perfectly justifiable to ask why somebody who escapes conviction should not be retried, but there are other arguments. One is that we need certainty, and another is that it is very undesirable that there should not be finality in legal proceedings—a point that has been accepted for many years and repeated in civil and criminal matters. Furthermore, there is a danger that people will feel persecuted, as well as a danger of miscarriages of justice. We all know that some people are convicted but found 18 years later not to have committed the offence. At some point down the road, when we bring back double jeopardy, we will find somebody who has been acquitted and convicted, but whose conviction is overturned 18 years on because it was unsafe and unsatisfactory. That will be a very bad day for the criminal justice system.

Stephen Hesford will also remember that, during the Bill's passage, I have highlighted a range of other issues, including the deprivation of liberty attendant on the process of retrial, which is inevitable and highly offensive to civil liberty concepts, as most people who have been acquitted are entitled to the benefit of that acquittal. The removal of that benefit is a draconian step. We cannot underestimate that, but I accept that once it is decided that that is not a draconian step, we might as well retry people twice or three or four times for anything on which we could not secure a conviction and on which further evidence came to light.

That is abhorrent to me, I think that it is abhorrent to the hon. Member for Wirral, West and I am sure that it is abhorrent to the Government. That is all the more reason why we should limit the provision to what the Law Commission proposes and perhaps also include rape, as we have suggested, with particular regard to the issue of scientific evidence. We know that, in all likelihood, even though the new evidence is not limited to scientific evidence, the sort of cases that will be reopened will be those in which DNA evidence exists from the scene of the original crime and provides a strong and powerful link between the person who was previously acquitted and the commission of the offence. In itself, that is not without problems, and we explored them in Committee as well. DNA is not entirely foolproof and evidence can be contaminated and sometimes misread. Nevertheless, it provides a framework and perhaps a justification for reopening a case, and we are prepared to concede that. I come to the Minister in a conciliatory mood, but only up to a point.

Photo of Graham Allen Graham Allen Labour, Nottingham North

The hon. Gentleman is making a very strong case and I commend him for it, but he is missing out the public outrage. I know that he is well aware of the various cases that generate outrage in which a particular individual is known to have committed an offence and got away with it. In Committee, we referred to a case that arose in the constituency of my hon. Friend Mr. Cook, in which a child molester and child killer got away with the offence in the first instance, but afterwards not only admitted having committed it, but made money out of a newspaper by selling his story. Such cases show the need for a balance, which the hon. Gentleman might want to bring to his remarks. Unless they are dealt with, they will bring the whole criminal justice system into disrepute.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I clearly accept that argument—we are prepared to concede that it should be possible to reopen murder cases that fall squarely within that group.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

On the point made by Mr. Allen about offences that cause outrage, is not it the case that one offence that causes outrage in small communities is causing death by dangerous driving? Families are so concerned that they never get over it—it can be much worse than anything else. Yet which of us would argue that double jeopardy should apply to it? Causing death by dangerous driving is not in the schedule, but once one moves into that territory, the arguments become very complicated.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

My hon. Friend is right. Indeed, in recent times, Members of Parliament may have received more letters on that subject than on most others concerning the criminal justice system.

There is no easy answer, which is precisely why I return to the point that I made to Mr. Allen. We would be wise to stick to a minimalist approach. Once the Bill is on the statute book, it will be extremely difficult to remove the provision. In that sense, the issue is simple. I concede that there are difficulties, and it is possible for thoughtful, right-thinking people to have different views on the subject. However, the more that we have reflected on it, the more strongly we have come to believe that the Law Commission was broadly right and the Government have gone much further than is proper.

I turn now to the other amendments in this group in my name and those of my hon. Friends. Amendments Nos. 20 to 22 deal with the evidence on which a jury could convict. I am delighted that the Government have gone a long way towards addressing our concerns, and I will certainly not press the amendments to a vote. The nub of the issue was that the wording of clause 66 left the distinct impression that the Court of Appeal could order a retrial only in cases where it was satisfied that the person was guilty. It seemed to us that that prejudiced the possibility of a retrial further on, because the papers would be able to report it and, indeed, use the court's very words. That was a subject of deep anxiety in Committee, which is why we tabled the amendments. I accept, however, that Government amendments Nos. 358 and 359 deal with the issue through a simple rewording. Their wording is slightly different from ours and, I concede, rather better—they were probably helped by their officials. I am pleased with the change, and I welcome the fact that the Government accepted that there was a problem.

Amendments Nos. 61 and 62 deal with judicial control. In this case, there may not be a meeting of minds, and the subject causes us considerable concern. We need to look at clause 73, which is about the authorisation of investigations. I hope not to detain the House too long, but this is an important issue and needs to be considered. Because of the unusual nature of the process, a person who, by virtue of being acquitted is free of the normal processes of criminal investigation—and should be, as long as he has not committed other offences—has to be criminally investigated with a view to a decision being made about whether a retrial should take place. That in itself is, if I may use the term, a very offensive procedure, because it means that someone with the benefit of an acquittal will suddenly have the police knocking on their door. A police officer may want to seize material, come into that individual's house, arrest him and take him away for questioning. All those actions would be regarded as a gross violation of his civil liberties, post-acquittal, if they were not to happen as part of the process of a possible retrial.

The Government have provided a series of mechanisms, with which they have tinkered further in their amendments, that are designed to authorise investigations. That process is dependent on the police and on the Director of Public Prosecutions. I accept that the DPP has an enormously important role to play in the administration of justice, but he is exactly what his name suggests—a public official who brings prosecutions and investigations in the name of the Crown. He is not, in that sense, an impartial figure at all, even though he lays down very high standards for himself—the high standards that Parliament expects of him—as regards the way in which he carries out his duties. We have a long-standing principle in this country—although parts of the Bill seem to depart from it—whereby administrative actions that require a violation of somebody's civil liberties should have some judicial scrutiny. I am not saying that that scrutiny needs to be very intense, searching or far-reaching, but simply that it is a process by which someone goes to a judge to explain and to justify why such an investigation should commence.

That mechanism would be provided by amendment No. 62, which would require the DPP to seek leave from a judge of the Crown court on an ex parte application for the process to commence. It would require him to say, "This is not frivolous. Here are the key components that we already have, which make us think that this individual was wrongly acquitted and committed this dreadful murder or rape"—I take the two examples in schedule 4 that I would continue to allow—"so we would like to initiate the investigation." The judge could then ask to be shown the relevant documents and papers. That would not necessarily take long: I envisage that such a hearing might take an hour to a couple of hours. We are told, I suspect correctly, that the likely number of such retrials in any given year is tiny: perhaps half a dozen. It would not place an onerous burden on the judiciary, but it would at least provide a mechanism whereby a judge could say, "No, you can't: this is completely frivolous", or indeed, "This is outrageous."

The Government will tell us that the DPP is not going to act outrageously, frivolously or offensively, and I accept that most of us would expect that to be so. However, there is a terrible tendency in the House at the moment in that the Government are always telling us that we must take Executive power on trust. I am afraid that one of the things that makes me a Conservative is that I do not believe in taking Executive power on trust. One of the reasons why we have a system in which Executive power is, on the whole, wielded properly is that on every occasion it has been challenged, scrutinised and argued over in this House and by the judiciary in holding the Government in check.

Why, therefore, should we not have the mechanism that we suggest in amendment No. 62? Can the Government give me one good reason why we should not have that extra check, which would provide great reassurance to the public that an investigation will not be mounted frivolously? It would also provide a protection for the police and the DPP. As certainly as night follows day, a reinvestigation will be undertaken in which the police re-arrest, re-search and carry out all those highly offensive acts against the liberty of an individual, but ultimately have to say, "We're terribly sorry, but we've decided that there insufficient evidence for this retrial and we won't proceed." At that point, great and possibly unjustified criticism will be levelled at them. What better mechanism to protect them than ensuring some judicial scrutiny before the process gets under way?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal 9:00 pm, 19th May 2003

Before my hon. Friend leaves the point, will he cast his mind back to the Home Secretary's intervention on my right hon. Friend Mr. Letwin to ask him to confirm that judges were not creatures of the state? Let us turn the proposition around and say that in the case that we are considering it is important that somebody who is manifestly not a creature of the state should make the final decision. The police and the DPP are, very properly by their nature, creatures of the state.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I agree with my right hon. Friend. Of course, there is a mechanism for going to the Court of Appeal to get the original verdict set aside. However, by that stage, a considerable intrusion on civil liberties has occurred. They need to be protected. The more one examines the details of the procedure, the more apparent is the extent to which we are making massive inroads into what most people regard as the basic civil rights of an individual who has been acquitted or held to be innocent of a specific offence. I hope that the Government can respond positively to that.

The Under-Secretary will speak about the many Government amendments. We welcome the desirable changes on reporting restrictions. For reasons that I outlined earlier, I am sorry that the Government propose including another qualifying offence. We are anxious about the changes on new and compelling evidence and the interests of justice test. I accept that the Government believe that the effect of the rewording will be identical to that of the previous wording but without allowing an opportunity for complex legal argument. However, the previous due diligence test appeared well worded to us.

I am not persuaded that the Government's classic move of providing in one clause that a trial can be reopened in the light of new evidence but qualifying that with a due diligence test is as good as the previous provision. We argued that the provision had to go beyond the Government's proposal and ensure that the prosecution was not allowed two bites of the cherry through incompetence. I hope that the Minister can reassure us about that. In the other place, those who are better versed in law than many hon. Members in this place will be able to give their opinion on whether the Government amendment would not change much but lead to better wording. I remain unpersuaded, but I am open to persuasion.

I am sorry that the Minister has not accepted our views on retrospection, but I shall not reopen the matter. I look forward to his comments on the voluminous Government amendments. I repeat that the fact that the Government had to devise so many highlights the subject's complexity and difficulty. That is all the more reason to confine their scope, as was originally intended, to our proposals in amendment No. 18.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

We are holding another important debate and I am conscious of the fact that we are again strapped for time because of the guillotine. I shall therefore not repeat the points made by Mr. Grieve.

We took a straightforward position in our amendments. I refer specifically to amendments Nos. 479 and 480. Instead of schedule 4's long list of 30 offences, to which the Government have tabled a further, late addition, we propose to remove the schedule and accept the Law Commission's suggestion, which we incorporated in amendment No. 479, of

"murder, genocide consisting in the killing of any person, or corporate manslaughter".

"Corporate manslaughter" is the updated version of reckless killing, which the Law Commission originally proposed. We understand that the Government have adopted it; some of us argued for that for a long time. Our party now accepts that there is an argument for considering whether cases should be tried again. We did not approach the issue with a theological or absolutist view; we engaged in long internal debates, which were honest and open, and we were clear about the fact that this should apply only to offences in the general category of "most serious".

The majority view in the party was that the provision should be prospective rather than retrospective. If all cases resulting in trial and acquittal could be retried, a generation or more of cases would be reopened, and every acquittal would become a provisional acquittal. We concluded, however, that unless an objective recommendation were followed, no obvious criterion could govern which offences could be subject to retrial and which could not.

The reason given by the Law Commission for saying that murder and genocide should be included and other offences should not, and the reason it gave for not accepting that offences carrying a life sentence should be included, was that everyone accepted—I agree that this is accepted widely—that murder is in a category of its own, genocide is mass murder, and many offences at the bottom of the league that carry life imprisonment as a potential maximum are clearly not regarded as similarly serious.

Photo of Vera Baird Vera Baird Labour, Redcar

The hon. Gentleman is not the puppet of the Law Commission. I was shocked—nay appalled—to see that the amendment did not include rape. Does that mean that the Liberal Democrats do not consider that—in my view—heinous offence to be in what he has just described as the general category of "most serious offences"?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

We do not say that rape is not in that category; we say that it is—that it is indeed a most serious offence. We had to decide, however, whether to suggest the inclusion of all serious offences, or to take the Law Commission's view as our starting point. For reasons that I understand, the hon. Member for Beaconsfield said that the Conservatives had decided to take one of the commission's recommendations and add an offence to it, which was a bit of a "pick and mix" proposal. The Government went further than the commission, and indeed much further than the White Paper produced only a few months ago, in which they said:

"For this reason we have decided that the change should extend to a number of other very serious offences such as rape, manslaughter and armed robbery."

The shortlist has obviously grown since then.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

The hon. Gentleman used the phrase "pick and mix" in criticising the official Opposition's approach, but surely his own approach is "pick and mix". The Liberal Democrats have added corporate manslaughter to the list.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The Law Commission recommended the inclusion of three offences—murder, genocide and reckless killing. When the Bill began its life, "reckless killing" was the third offence on the list, but I understand that the Government are to update "killing" offences and term them "corporate manslaughter". We propose that offences whose objective and result are people's deaths should be included, for the reasons given by the Law Commission.

I do not pretend that the Law Commission has an absolute right view, but it makes what are clearly objective recommendations to Parliament on what laws should be changed and how. We think it necessary, for reasons given by the hon. Member for Beaconsfield, to start carefully. This is not just a break with tradition; it is, potentially, a risky and dangerous course. We think it best to begin with a category of offences that, by anyone's definition, are at the top of the list.

Photo of Graham Allen Graham Allen Labour, Nottingham North

I share the hon. Gentleman's concern about changing criminal law by Executive reflex. Tomorrow we will, I hope, have an interesting debate about the Sentencing Guidelines Council, which at least attempts to go beyond the megaphone diplomacy of the Home Secretary and the judiciary in the argument about sentencing levels. It is, however, incumbent on the hon. Gentleman to explain how we can go further than the Law Commission's recommendations. What mechanism does he envisage for adding offences legitimately, rather than just coming up with a list produced by someone in the Department? How can we reach a consensus on offences that should be added?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I do not think that there is much between the hon. Gentleman and me on this matter. The Liberal Democrats are starting with the recommendations of the Law Commission, a body that was set up to recommend changes to the law and that has a long-standing reputation for doing so. Had many of its recommendations been adopted by Parliament over the years, we would be much better off. Our proposal was not our invention; it was based on a proposition put forward by the body that has been given that job.

In terms of the development of the provisions, the representatives of the Law Commission are the first people who should be asked, after a reasonable period, for their suggestions in the light of experience. I share the hon. Gentleman's views that there are representative bodies in this place that are appropriate to examine these issues. The Select Committee process would be an appropriate one, involving the Home Affairs Committee and the Select Committee on the Lord Chancellor's Department, for example.

One of the bodies that we are going to discuss tomorrow may make recommendations on sentencing matters, and will involve a broader sweep of people—we would suggest not only those who judge but those who legislate—and that body could appropriately have a role in these circumstances. So we are open to a process for achieving that. Our proposal is that we should start with the proposition placed on the table by the body that has been given the job to do that, and that, at a later date, we should see how that is going.

Photo of David Kidney David Kidney Labour, Stafford

The hon. Gentleman's argument relies on the recommendations of the Law Commission, one of which was to include the classification of "reckless killing". Mr. Malins has pointed out, however, that the Government do not include causing death by reckless driving in their list. Why do not the Liberal Democrats include that classification?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

To be fair, we are trying to be as exact as possible in following the Law Commission's recommendations. I am sympathetic to the proposal that the hon. Gentleman has just mentioned, and I think that the best way out of this debate is to see where there is agreement that we should go forward. That might not get resolved here tonight; it might be more clearly resolved in the House of Lords. I sense that the Liberal Democrats' view that we should not be retrospective or concentrate on trying to revisit the past, but that we should be prospective, has not found much favour.

The consensus seems to be that there should be an ability retrospectively to examine cases, particularly in the light of DNA testing. I give the warning, however, that that does not mean that some of the cases most often cited in this context would be likely to be retried. I have said before that the two cases that even senior police officers have hinted could be, as it were, rescued and opened for retrial by this change, if we were to implement it—the Stephen Lawrence case and the Damilola Taylor case, both of which I have detailed knowledge of—would not be able to be reopened. I think that everyone agrees that a case cannot be reopened if it did not succeed because of a failure in the prosecution process or the investigation. It was very clear from the Lawrence inquiry report—and it seemed clear from the Damilola Taylor inquiry—that it was failures in the process that might not have delivered a verdict in either case, and that no new evidence had come to light.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

The hon. Gentleman will know that the very last amendment, which we are unlikely to get to this evening, relates to the extension of part 10 to Northern Ireland. That proposal had built up hope for some people, particularly the group known as the disappeared. They are not in south America; they are in Northern Ireland. They are people who have been someone's son or father—or, indeed, someone's mother, as in the case of Jean McConville. Is the hon. Gentleman saying to those families that they have no hope, and that his party does not wish this provision to be retrospective? Does that mean that the families of the disappeared should have no hope of there ever being a prosecution of those who kidnapped or murdered their loved ones?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs) 9:15 pm, 19th May 2003

I will be completely honest with the hon. Lady: that was our original considered view, and it was originally my view. I am, however, being persuaded that there would not be any justice in that. I will own up to another change of view—that is why we have these debates. The case was made very effectively in Committee by Vera Baird, and I am persuaded that another exception to the general proposition that we should not retry is where there has been an admission of guilt by a person who has been acquitted. It is not compatible with justice that the issue cannot be revisited when someone is tried and acquitted, and then publicly says that they committed the offence.

It seems to me that our constituents—the people whom we represent—such as the families of victims would expect the authorities to revisit an issue if there is an admission that, on investigation, looks like an admission that was intended to be made rather than just bravado. That should be the case if money is involved, as in the example given by Mr. Allen, and even if it is not.

I have been persuaded that both those arguments have merit, but I do not want us to make people think that that means that, suddenly, all those offences that have led to trials and not guilty verdicts will be reopened. That would mean no finality, no certainty and no end, and that everybody alive who has ever been acquitted of any such offence would suddenly be only prospectively acquitted. That seems to me to be an injustice equal to many others.

I say to the new Minister, whom I very much welcome to the Home Office team, that there is a really big issue here, which the Government have partly addressed. They must try to ensure that we protect those who might be in a second trial from the risk of prejudice. The big debate is about how to enable a second trial to go ahead fairly without people knowing of the first. The Government have tabled amendments that will help with that, which we welcome, but they will not create any realistic guarantee that a juror—it needs only one person—will not remember that a case, which was well known due to the fact that it was shocking and reported nationally or because the defendant was well known—has been tried before.

Someone on the jury might realise that the case is back in court again because it has been up to the Court of Appeal due to the fact that the Director of Public Prosecutions thinks that it can be reopened and because, therefore, a very high threshold has been passed. A juror might think, "It could not come before us unless there is a very good case." That person will start with that prejudice, and the matter needs to be addressed.

One of the important matters that we looked at in detail in Committee, although I shall not trouble the House with it now, is the definition of the triggers for reopening a case. It is absolutely clear to all of us who have deliberated that they should not be released because of a failure of the earlier investigation. They must be released because new evidence, which was not available, has come to light.

My colleagues and I shall seek to press our amendment to the vote. We think that it would be better to start with the Law Commission proposal, and that the Government's list is too long and would change the law too much in one go. We hope that Parliament moves forward in a considered and careful way, but one that reflects the injustice in respect of the position of certain people who clearly ought to be retried for an offence with which they are connected.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

As has been pointed out, there are many amendments in this group, so, in the hope that some of my hon. Friends and others will be able to catch your eye, Madam Deputy Speaker, I shall concentrate on two specific areas: which offences should be qualifying offences under part 10, and the amendments on new and compelling evidence.

In the first area, Government amendment No. 357 will ensure that the qualifying offences set out by clause 63 include those serious offences committed abroad for which the UK takes jurisdiction, so the arrangements for retrial in part 10 apply to acquittals for those offences. That applies in particular to offences of murder alleged to have been committed by a British citizen abroad. Government amendments Nos. 423 and 424 are consequential on the changes being made by the Sexual Offences Bill, which is updating and modernising the definition of a number of offences. The amendments account for those changes.

I turn to amendment No. 425. During the Committee stage of the Bill, Mr. Heath raised a particular issue: whether officers of HM Customs and Excise should be included in the list of "forces" allowed to conduct an investigation in respect of part 10 procedures. My hon. Friend Hilary Benn was grateful to the hon. Gentleman for raising that matter. I agree that, in view of its responsibilities to investigate serious drug trafficking offences, it is right to include HM Customs and Excise as an investigating agency. Following consultation with HM Customs and Excise, we have decided to include the offence of fraudulent evasion in respect of a class A drug, to which hon. Members have referred. We are advised that that offence is the one that Customs and Excise uses most frequently to prosecute serious drug trafficking offences. That is why it has been added to the list.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The Minister says that that offence is the one that Customs and Excise uses to prosecute serious offences. As a past prosecutor for Customs and Excise, I have to say that it is the one that it uses to prosecute virtually all class A offences. The seriousness is very variable.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

If Customs and Excise uses the offence to prosecute many offences, it will also use it to prosecute serious offences. It is because it is a serious offence that it has been included in the list.

As we have heard, Opposition amendments Nos. 18 and 19 would limit the proposed changes to the double jeopardy law to offences of murder and rape. We see absolutely no rationale for restricting the provision to murder and rape. That would rule out applications for acquittals to be quashed in a range of very serious offences such as manslaughter and attempted murder.

While the Law Commission's initial recommendation was that a change to the double jeopardy rule should be made in respect of offences of murder, Lord Justice Auld's review proposed that the changes should apply more widely. Therefore, we have proposed in schedule 4 a range of serious offences that are punishable in the main with life imprisonment, that have a particularly serious impact on the victim or on society more widely, and to which the new proposed exception to the double jeopardy rule should apply. As such, we cannot accept those amendments.

It is interesting to hear the debate about whether there is a small group of serious offences such as murder and rape and whether the Government want to introduce a rather woolly, wide list that includes perhaps some rather frivolous offences. It is interesting to look at some of the offences that would be omitted if the amendments tabled by the Opposition were accepted. They include attempted murder, soliciting to commit murder, grievous bodily harm, which in many cases is an unsuccessful attempt almost to take someone's life, kidnapping, taking hostages, attempted rape, unlawful sexual intercourse with a girl under 13, a range of serious drugs offences, armed robbery using a firearm, arson endangering life, causing explosion likely to endanger life or property and, as we have heard, offences of genocide and grave breaches of the Geneva convention. The Opposition suggest that such offences are somewhat frivolous and should not be included in our list. We strongly assert that the rationale for the list is the seriousness of the offence.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I never used the expression that they were frivolous offences. Any offence in that list is a serious matter. What I did say was that I did not consider that they justified departing from the established rule: the protection of the individual under the double jeopardy rule.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I accept that the hon. Gentleman did not use the word "frivolous" but it could be implied in the debate that those were less serious offences. I am asserting that all those offences are very serious indeed.

Photo of Graham Allen Graham Allen Labour, Nottingham North

I am delighted that my hon. Friend Mr. Cook is now in the Chamber because on several occasions in Committee we raised the case of a child molester and child murderer who, after being released and found not guilty of those offences, commented that he had committed them and was paid money by a newspaper for his story. Presumably, my hon. Friend the Minister knows of many cases where we could use the double jeopardy change to bring such people to justice. Obviously, I do not expect him to rattle off a list now. Presumably, the Home Office has done considerable research on the number of people who could be brought to book.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Certainly; my hon. Friend is right. There are a number of such cases and the individual to whom he refers would be caught not only by the double jeopardy provisions, but by some of the proposals that my right hon. Friend the Home Secretary will bring to the House tomorrow.

Photo of David Heath David Heath Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Home Affairs)

I am worried that the Government might be raising expectations of the result of this measure way beyond what can be sustained. In Committee, the Minister's predecessor told us that very few cases were likely to be brought before the courts under this proposal. When one looks at the thresholds to be applied and the difficulty of getting a fair trial—which may, I fear, take out some of the most notorious cases—the possibility is that very few cases will be retried on this basis.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

The hon. Gentleman will note that I said that the Home Office was aware of other cases, which was the only claim that I made.

Amendments Nos. 129 to 132—tabled by my hon. and learned Friend Vera Baird and others—are in a similar vein to the amendments that I have just mentioned. Although the list in the amendments is drawn more widely than the list offered by the Opposition, I cannot accept the amendments for the same reasons.

Schedule 4 has been considered carefully by Ministers and although there is clearly an element of judgment over exactly which offences should be included, we believe that the current list includes a range of very serious offences for which it is right that there should be a retrial if new and compelling evidence becomes available. I do not accept the arguments made in Committee and this evening by Simon Hughes that the list of qualifying offences leaves too many acquittals with, in effect, a provisional rather than a final status. For any case to be reopened, there must be new and compelling evidence against the acquitted person. We have put in place a range of safeguards to ensure that only in these cases are re-investigations and new charges to be justified. Frankly, only guilty people who know that they have got away with it will need to be worried about the prospect of a retrial.

I wish to refer to the amendments on new and compelling evidence. Clauses 66 and 67 are in many ways the very heart of part 10 of the Bill, where we articulate the tests that we want the Court of Appeal to apply in considering whether to quash an appeal and order a retrial. As in many other aspects of the Bill, the test has to hold some important considerations in the balance. It has to hold in the balance the need to impose a high threshold on reopening an acquittal to ensure that that is not done except in the most compelling cases, with care of course not to set the test so high as to amount to a virtual imputation of guilt, which could prejudice a retrial.

The test must guard against giving our investigators and prosecutors the slightest encouragement to think that they can skimp on the preparation of a trial on the basis that they can always have another go if the defendant is acquitted. The test has to be scrupulously fair to acquitted persons and must deliver visible justice to the victims of extremely serious crimes. Finally, the test has to ensure that justice is not brought into disrepute either by the unwarranted harassment of the innocent or by allowing the guilty to flaunt their guilt, safe in the knowledge that the law is powerless to act. In the end, the court must deal with an individual case on its own merits and decide as the interests of justice require.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

I apologise for not being here for part of this debate, although I have been here since 3.30 pm. The Minister will be aware that the objection that many of us had for many years to double jeopardy was not on the basis of civil liberties—I do not think it is a civil liberties issue—but on the basis of policy, which is what he is talking about at the moment; the policy that dictates that one gets it right first time. I am persuaded that that is no longer a consideration. However, what I do not understand is why, under those circumstances, we should be limited to two. If precisely the same test is to apply—namely, that evidence was not available—why should we stop at two? Why cannot it be three, four or more?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 9:30 pm, 19th May 2003

My hon. and learned Friend will recognise that the reason for stopping at two is that it is one of the safeguards that the Government offer to prevent a sense of repeatedly reopening old cases.

In Committee, some very cogent suggestions were made for improvements to the test that I just mentioned. I am happy to introduce Government amendments that bring about those improvements. It was suggested in Committee that the test of new and compelling evidence went too far in imputing guilt to an acquitted person, and was therefore potentially prejudicial to a retrial. We have considered that point carefully and introduced amendments that will remove references to "guilt", and refer instead in clause 66(1) to evidence

"against the acquitted person in relation to the qualifying offence", and in clause 66(3)(c) to evidence that is "highly probative" of the case against the acquitted person. That will not only make it clearer that the Court of Appeal is taking a decision in relation to the strength of the new evidence, but will be less likely to create an impression of prejudice.

At the same time, we propose to revise the definition of "new" evidence to make the test both clearer and simpler. That is because we believe that the current wording of clause 66(2) would provide scope for endless legal argument about whether evidence was, or should have been, "known or available" to the police at the time of the original acquittal.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

When we debated this issue in Committee, I got the distinct impression from the Minister present that the form of words that this Minister wants to jettison was regarded as one of the really important and essential safeguards to prevent—[Interruption.] I got the distinct impression that that Minister saw it as important in ensuring that the two-bites-of-the-cherry principle did not follow, and that it was not there to cure prosecution incompetence.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

The hon. Gentleman points to the importance of scrutiny in our Committees.

We therefore propose a new, straightforward, factual definition: the evidence is new if it was not adduced at the original trial. Linked to that, we also propose to clarify the "due diligence" tests set out in clause 67 to help to guard against the possibility of poor police investigations giving rise to a second bite of the cherry.

Given those circumstances, I believe that we have addressed the concerns raised by the Opposition amendments and provided a package through which the Court of Appeal can take a balanced view on whether an acquittal should be quashed and a retrial ordered. For that to happen the evidence must be new, in that it has not been before the court before; it must be compelling; and the court must consider it to be in the interests of justice for a retrial to be ordered. Those are the right tests and they strike the right balance.

Therefore, amendments Nos. 20 and 21 are not necessary. The Court of Appeal must assess whether the new evidence in a case is reliable and compelling. I can see that the purpose of the Opposition amendments is to make that judgment appear more guarded, and clearly, we would wish to avoid any ruling that might appear prejudicial to a potential retrial. But we must remember that the court is considering only the nature of the new evidence, not the entirety of evidence as it will be presented in a retrial, nor the guilt or otherwise of the individual. We therefore believe that an assessment of whether the evidence is reliable and substantial, taken together with our other proposed changes, is the right one.

I believe that the case for retrial in relation to serious offences is now widely accepted. The Government amendments introduced this evening will help to apply this principle more successfully in practice.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I congratulate the hon. Gentleman on his first speech as a Minister—I am only sad that we lose him as a campaigner on certain issues on which he and I have much in common. It is a pleasure to follow him.

I have concerns about this part of the Bill not because I do not find the Minister's arguments compelling, but merely because they go too far. They go too far because we have not yet had the experience of introducing to our legal system the concept of double jeopardy, which, after all, we excluded from it for centuries. Perhaps this is a moment for a little care and reticence—a view commonly held by many on both sides of the House. That is the reason for questioning the long list that has been produced.

The list is rather less compelling when read in its totality. I have no doubt that an offence arising out of article 4 of the Channel Tunnel Security Order 1994 is extremely serious, but there are other hijacking offences that might be thought at least equally serious. That example was chosen because of the maximum penalty involved. That is the fundamental difficulty with the Government's proposals. The list provides a series—though not an exhaustive one—of penalties for offences. However, they are not characterised by their objective seriousness, but appear because someone decided in the past that they were serious enough to warrant the maximum punishment of life imprisonment.

That makes for a rather peculiar series. The Minister is right that, among them, are highly serious offences that we would all agree should be included as the most serious that could be committed. The question remains whether, because they are serious offences, they reveal themselves to be of a different class and category from other offences. I find it difficult to view the list in those terms, so I return to the notion of objectiveness.

We must decide how the seriousness, shock and horror should be measured. Surely we have to look not at individual cases, but at classes of cases. I am concerned at the idea that we need to include an offence because of people's horror at a particular case. One of the reasons for having a formal legal system is to remove the decision in the case from the immediacy of the horror at the offence in order to judge the case with impartiality and objectiveness. I am concerned at the argument that certain offences should be included because the public could be so affronted by a particular case that they would be appalled if it were not re-tried.

We should view the case rather differently, which brings me back to the position of the Law Commission. It may not necessarily be right, but it has put forward a proposition that can be recognised as sensible by all. Its approach was to take one particular crime that was universally viewed, without question, as unique in its horror—the taking of someone else's life purposefully. It is possible to stop just there, but my right hon. and hon. Friends believe that the crime of rape should be added. I value the comments of Vera Baird. She is right to say that rape is a proper addition to the list, but it perhaps opens the door to many others. Those two, however, would universally be seen as crimes of a particular severity and horror.

In those circumstances it is surely sensible to do what the Law Commission suggested. It argued that, if double jeopardy were necessary, it should be restricted to those crimes. After some experience, I am not one who believes that it could not safely be extended to other offences, but I am saying that we cannot safely extend to all the others, without any experience, something that we have found inimical to our legal system for hundreds of years.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

The right hon. Gentleman was a member of the Government who brought measures before the House to categorise offences that deserved to be punished with life imprisonment. He now seeks to belittle that policy. How does he square his past with what he is now saying?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

We are talking about a wholly different position, so I do not have anything to square. We are now discussing the issue of which crimes should be treated in a way that is wholly novel in British law. I do not find it objectionable therefore to say that I wish to apply that, as the Law Commission suggested, to a very select group of crimes.

If the House is to overturn something that we have held as being very important to the principle of justice for centuries, it is a good idea—it is much safer—to do so little by little, so that we may even decide that we went too far in the first place. That is a simple matter of sense, and it is why I agree with my right hon. and hon. Friends in their amendments.

I am also concerned about how the system should be triggered, so I want to end by returning to a comment made by my hon. Friend Mr. Grieve. The crucial issue that faces those who might be pressed in such circumstances is that they will be under investigation for a second time. Of course the Minister said—I cite him as accurately as I can—that only guilty people who know that they have got away with it will need to be worried. I have to tell him that there is a slight assumption in that, is there not? The assumption is that everyone who is tried a second time is a guilty person who has got away with it.

My concern—the House ought to be concerned with this—is the small number of people who have been found innocent, but new evidence turns up that casts doubt on that finding. They are still innocent and may in the end be found to be innocent, but in the meantime they have to be reinvestigated. The Minister has assured us that he is doing everything in his power to protect the innocent.

I return to the point made by my hon. Friend the Member for Beaconsfield: the decision must be seen to be triggered not primarily by the state, but much more by the independent judiciary. That is why I, too, hope that the House will accept those amendments that would put a judge in the position of taking that triggering act, because the public would then see that it is a judicial, not a state, decision. That would also protect those emissaries of the state who have the grizzly task of reopening cases that have been closed until then.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am very sorry to put on record how much I disagree with the statement made by the Minister, whom I warmly welcome to the Dispatch Box. Not just the guilty need be afraid of the Bill. The Minister and the right hon. Gentleman will know that some of the amendments being considered this evening extend part 10 to Northern Ireland, so those who are guilty of murder in the most heinous circumstances in Northern Ireland should face the rigour of the Bill. However, the right hon. Gentleman might be interested to know that the recent Hillsborough declaration includes proposals for on-the-run terrorists who have committed murder to be given a clean bill of health—they will not face prosecution. Will the right hon. Gentleman comment on that?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Well, I could comment on it, but it would be very inadvisable if I were to do so at this stage in this debate on these issues. We are dealing with the interrelation of a whole series of issues and I would be probably closer to the hon. Lady than to others on the fundamental issues that we are discussing.

What I want to say very clearly is that this is an extremely serious step even if, as Members on both sides of the House have argued against double jeopardy for many years, we decide to introduce double jeopardy in a very limited way. I should like that limitation to be clearly objective and clearly sensible in its distinction between the crimes that it covers and all other crimes, and it seems to me that the Law Commission has got it about right, although I am prepared to go one stage further and add the offence of rape.

Photo of Frank Cook Frank Cook Labour, Stockton North

The right hon. Gentleman in some ways quite properly says that the Government are seeking to introduce double jeopardy. I would dispute that statement by saying that double jeopardy was introduced by Billy Dunlop when he turned round and admitted that he had killed Julie Hogg and hidden her behind the bath for her mother to find a decomposing body. Billy Dunlop introduced double jeopardy, and it is up to us to deal with that kind of situation.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

However horrific the case, and that was one of the most horrific, the House would none the less be better advised to make its decisions about changes in the law in general rather than in particular. That is the history of good law making. The general case is that it appears unacceptable to many people that if later evidence shows that those found innocent of murder may not have been innocent, they should, because of the process of law, be excluded from prosecution. We are suggesting—

Photo of David Winnick David Winnick Labour, Walsall North

Will the right hon. Gentleman give way?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

No, I must bring my remarks to an end.

I merely suggest that we would be better advised to restrict the provision to those two limited offences and to ensure that the trigger mechanism is in the hands of the judiciary and not in the offices of the state.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby 9:45 pm, 19th May 2003

I have listened to Members on both sides of the House debating which cases should or should not be referred to the Court of Appeal for review. The criteria being used by my hon. Friends and by other Members are at odds with mine. My criteria would be based on the suitability and the nature of the evidence.

Where the available physical evidence gives cause for concern about the original conviction, the case should be eligible to be referred back to the court. Where there is no physical evidence to support such a referral or where the evidence is purely verbal, the case should not go back to the court. That view arises from my, unfortunately, extensive work with a very unpopular part of the criminal community—sex offenders.

For the past three years, I have been chair of the all-party group on abuse investigations. Unfortunately, we have had to look into the processes involved in the conviction of sex offenders. Many of the people caught up in such cases assert their innocence of the crimes of which they are accused. I am not remotely interested in whether those people are innocent or guilty, but I am deeply concerned about the way in which the evidence against them in court has been collected.

Hon. Members will recall that, in 1993, a set of protocols was developed to manage physical evidence, following the cases of the Birmingham Six and the Guildford Four when there were clearly problems in that regard. There are about 133 requirements for the management of physical evidence, all of which we fully support and all of which underpin our view that in cases involving rape or murder, where physical evidence is obtained many years after the event, it should be used as the basis of an appeal. That makes us feel far more comfortable.

Unfortunately, no such protocols exist for the management of verbal evidence. In the vast majority of the cases with which I am concerned, all the evidence against the individuals has been collected in prison.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I disagree slightly with the hon. Lady about the protocols on physical evidence. One of the problems that will have to be faced when the measure goes through is that the protocols on the preservation of evidence 20 years ago were very different from those that exist today. As a result, the dangers of contamination of, for example, DNA testing of old evidence collected by the police are real, which may inhibit or prevent many of the prosecutions that certain hon. Members would like to see go ahead.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

I do not disagree with that point, but at least there are some protocols for the management of physical evidence. Since 1993, we can feel reasonably confident that the physical evidence gathered has been managed efficaciously. However, that is rather different from the verbal evidence that is collected in prisons every day for a variety of cases, when prisoners are interviewed by the police as they pursue their inquiries. Frequently, there are no independent persons to witness conversations that can lead to the conviction of an individual. In the cases with which we have been dealing, there could be dozens and dozens of witnesses appearing against a suspect, all of whom were interviewed in prison. I am not happy that the evidence collected from those individuals, who are there because they have broken the law, might subsequently convict a man for the rest of his life. Moreover, there have been exceptional cases in which an individual has faced allegations from as many as 58 men, and all those allegations have been set aside. Those men, however, could face in the future further allegations and the possibility of a retrial. If further new evidence is brought to light, I would suggest to right hon. and hon. Members that it will have been gathered in exactly the same way: with no independent witnesses being available. I must add that the vast majority of complainants involved in those cases go on to receive significant amounts of compensation.

Therefore, cases exist, I am afraid, in which to introduce double jeopardy would endanger and lead to more innocent people being convicted of crimes that they did not commit.

Photo of Graham Allen Graham Allen Labour, Nottingham North

The House always listens to my hon. Friend with great respect when she talks about these matters. Is she not reassured, however, that the Court of Appeal would have to hold that such evidence was both new and compelling before any such action was even considered?

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

Yes, that would be so. I must say, however, that my knowledge of the police and the way in which they investigate this crime leads me to believe that if they can interview 800 people in relation to an individual, they will not be deterred from searching out more individuals to support a view that they have about a particular person. That is what many involved in the care sector and social services are facing: allegations not from one or two people but from dozens. Frequently, we find that the police have been unable to realise all the witnesses that they would have liked to have realised for one reason or another: they may be frightened or they may have disappeared or vanished from society for some while. That does not preclude them, however, from coming back at some point in the future. In relation to this measure, therefore, I have great concerns. The police can say, "We realised this number of complainants on this occasion, but by the methods that we are allowed to employ, we will return for others if we are unsuccessful, so assured are we that this particular man is guilty of the crimes of which he is accused."

Photo of Vera Baird Vera Baird Labour, Redcar

I do not know whether my hon. Friend appreciates that by saying that retrial should only be available in a trial in which there is physical evidence, she would rule out being retried the case to which my hon. Friends the Members for Stockton, North (Mr. Cook) and for Nottingham, North (Mr. Allen) have already referred, in which the man, Dunlop, killed a lady, Julie Hogg, was acquitted of her murder, and then confessed in the pub, not in the paper, that he had done it. That man is so much a liar that he is currently serving a sentence for perjury, for saying in the first trial that he did not kill her. My hon. Friend would rule out a retrial in that case, and I therefore suspect that she is wrong.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

We have not had the opportunity today, or on any other day, to talk about the credibility of witnesses and how we determine whether witnesses are credible to give evidence. I wish that we had had that opportunity. I know that the Crown Prosecution Service is consulting on the matter.

I return to my original submission, however, that cases that can be substantiated with physical evidence should be brought forward for retrial, whereas those cases that are substantiated with the methods that I have described this evening should be turned down, simply because an integrity of process with which this House would feel comfortable does not exist. The House does not feel, and did not feel, comfortable with the way we managed physical evidence, and we introduced protocols to manage that.

I believe that the time has come to address the vacuum in the recording and management of verbal evidence. Many people have been convicted on the back of verbal evidence, and thousands of families are sitting at home in fear of what we may confirm this evening. They realise that they are in an indefensible position, knowing that they cannot win in these cases.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am disappointed and surprised that not one member of the Democratic Unionist party is in the Chamber this evening. They were in their places last week on a different matter. However, when it comes to significant changes to criminal justice, it is disappointing that they are not present. Perhaps they will surprise us and bounce into their usual places. I am glad to see my hon. Friend David Burnside in the Chamber, united in spirit and body on this occasion.

I am pleased also that the Under-Secretary of State for Northern Ireland is on the Government Front Bench this evening. Most of my remarks will be directed to both the Northern Ireland Office and the Home Office. It has been a particular concern over recent months that there has not been joined-up thinking between them. I am especially pleased to see Ministers from both Departments in the Chamber.

Members of the Committee who considered the Bill each received a copy of a useful letter from the Minister for Criminal Justice, Sentencing and Law Reform in another place, which explained why part 10 was being extended to Northern Ireland. The letter stated that Northern Ireland should not be perceived as becoming

"a safe haven for individuals who are seeking to avoid retrial under the new provisions."

The perception that Northern Ireland could be a place of refuge for those seeking to avoid the operation of part 10 would have a greatly detrimental effect on the confidence of the community and the ability of the criminal justice system. I say hear, hear to that concern.

I suggest that the Minister photocopies that letter and sends it to the Northern Ireland Office and even to the Prime Minister, because at the same time we have proposals relating to those who are on the run. It is a serious issue. We cannot say on the one hand that where there is new and compelling evidence a person should be prosecuted after a retrial, and on the other that he or she should be free to return to Northern Ireland without risk of arrest for questioning or charge in relation to a series of serious offences. Please, will the Northern Ireland Office and the Home Office come to a mutual arrangement so that they understand what both hands are doing at the same time? That would be extremely helpful.

There is no justification for singling out only part 10 in terms of new and compelling evidence and retrials. Northern Ireland is guaranteed by the Belfast agreement, which the Prime Minister and the House generally have regularly told us how much they want to implement, to remain part of the United Kingdom unless and until the people of Northern Ireland say otherwise and vote in a referendum. If that is the case, why are the sentencing provisions in the Bill not extended to Northern Ireland? Why should those who riot in Bradford be sentenced to months or years of imprisonment, while in Belfast, where there was a dreadful history of rioting last year, on a good day someone might be remanded for 30 days? There is no justification for treating people so differently in different parts of the United Kingdom. Departments must get their heads together and treat the people of Northern Ireland fairly and equally with people in the rest of the UK.

Photo of Martin Linton Martin Linton Labour, Battersea

I make a plea for a less restrictive approach to double jeopardy. No one puts forward the case now against any relaxation of double jeopardy, but we are deciding where the threshold should be. The Law Commission suggested that we should start with any offence that attracted three years' imprisonment. In its final document, it tightened up its proposal to only murder, genocide, and reckless killing.

I would argue that we should look to the organisation that represents victims in the legal system, which is Victim Support. It argues that we already have a high threshold for retrials. Under the Bill, to get a retrial, evidence has to be reliable and substantial so as to make it highly probable that a person is found guilty. That has to be in the interests of justice and to make a fair trial likely. The Director of Public Prosecutions has to be satisfied that it is in the public interest. Finally, the Court of Appeal must quash the acquittal and order a retrial, so there are already several high thresholds in the system.

Victim Support argues that we should not unduly restrict the categories of offence that can lead to a retrial. It calls for retrials to be possible in the case of all arrestable offences. I am not endorsing that, but we are being far too restrictive in arguing, as the Opposition do, for only murder and rape cases. The Liberal Democrats argue for murder, genocide and corporate manslaughter cases.

There is a stronger case to be made for rape victims. If a rape victim sees her assailant acquitted, she will know that her assailant is free, immune from prosecution, and may commit the offence again. She may be imprisoned in her own house by the fear of a repeat of that offence, in the same way as somebody wrongfully convicted is imprisoned for that offence. It is important that we go beyond murder and rape cases to kidnapping, attempted rape and class A drugs cases. Many such cases would come over the threshold and should not be ruled out on the grounds of the type of offence.

I mention one famous case, that of Ronnie Knight, whom a jury found not guilty of the gangland murder of Alfredo Zomparelli, who was gunned down in the Golden Goose restaurant. Many hon. Members will remember the case. He was one of the many people who wrote kill-and-tell memoirs, where he boasted of a murder of which he had been acquitted—

It being six and a half hours after the commencement of proceedings, Mr. Speaker, pursuant to Orders [4 February, 5 March, 2 April and this day] put forthwith the Question already proposed from the Chair.

Question put, That the amendment be made:—

The House divided: Ayes 189, Noes 330.

Division number 207 Orders of the Day — Criminal Justice Bill — [2nd Allotted Day] — Clause 63 — Cases that may be Retried

Aye: 188 MPs

No: 329 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Abstained: 1 MP

Abstaineds: A-Z by last name

Question accordingly negatived.

Mr. Speaker then proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour.