Before moving the amendment, I must say that it is a great pleasure to see the noble Lord, Lord Kingsland, back with us again. His effortless advocacy always reminds me, somewhat nostalgically, of a well run tutorial.
I listened with great care to what the noble and learned Lord the Attorney-General said. Despite that, I wish to move the amendment. The reason is simply that the noble and learned Lord, with almost bromidal efforts, has emphasised the degree of co-operation that has been provided by the judiciary, as well he might. The paragraph of the report produced by the noble and learned Lord, Lord Woolf, that reflects his views and those of all the senior Court of Appeal judges who are involved with crime says in terms that the judiciary has no objection to a right of appeal in relation to a terminating ruling or a non-terminating ruling, as proposed, as long as the Court of Appeal is given the necessary resources.
The important point is that appeals must be brought with the leave of the trial judge or the Court of Appeal, as set out in Clause 57(6). The concern is the obligation that is placed on the judge to grant an adjournment. It would have been preferable if the judge had had broad discretion as to whether to grant an adjournment. In his most recent observations, the noble and learned Lord the Attorney-General drew attention to Clause 60, under which the judge has full discretion. He says that that allows for flexibility. Indeed it does; it is the same flexibility that I seek now.
The noble and learned Lord's resistance shows the lack of confidence that the executive has, from time to time, in the judiciary. I believe that that will be emphasised later. It will be highlighted when we come to sentencing. The Home Secretary's revenge on the Court of Human Rights is reflected in Schedule 17, which places on the judiciary an obligation to impose sentences about 50 per cent above the agreed—when I say "agreed", I mean agreed with the Home Secretary—guidelines that were brought in the previous year. It is also reflected in the constitution of the new sentencing council and in the minimum terms for burglary.
That is why the amendment is important, and that is why I move it. I beg to move.
I support the amendment. The noble and learned Lord the Attorney-General gave strong reasons against the use of the word "must" in Amendment No. 132P. It has been a necessary part of our system of justice, in order that justice may be achieved, to give the judiciary the widest discretion possible in the circumstances, which vary so much. I would have thought that it was even more important that, under Clause 59, the judge should have the widest discretion possible and that he should not be tied down to a particular exercise of that discretion. The noble and learned Lord, Lord Ackner, has made an important point that the Government should acknowledge.
As a non-lawyer, I support the amendment strongly. As the noble and learned Lord, Lord Ackner, said, this is the first of many clauses and schedules that we will discuss—Schedule 17, in particular—but, as it is the first, it is important that a marker should be put down here.
It is extraordinary that the Government, who have properly insisted, in another context, on the separation of powers and the protection of the judiciary from any interference—or suspicion of interference—by government, should insist on these clauses and the clauses that we will discuss later. In those clauses, political interference in the powers of the judiciary becomes more and more manifest, but this clause is the first that presents those of us who feel strongly about that with the possibility of pointing that out.
In the view of non-lawyers such as myself, there is a danger that the political element can often be over-influenced by elements of the press that are extremely insistent on the horrors of crime and the way that crime must be dealt with. That will come up again strongly with regard to sentencing. I deplore the thought that the national press should have any influence on sentencing in the courts. But this is the first instance in the Bill where the danger shows itself. It is for that reason that I strongly support my noble and learned friend.
This is an odd situation because the noble and learned Lord, Lord Ackner, had already spoken to this amendment in the second grouping. Indeed, I invited him to say whether he wanted to speak to his amendment at that stage, which he did. So I already have responded to his amendment. I see that the noble Lord, Lord Renton, wishes to intervene.
Perhaps I may ease the conscience of the noble and learned Lord. It is a custom in this House, which has prevailed for a long time, that the grouping of amendments is merely to help discussion when the amendments to some extent overlap. But it always has been part of the freedom of noble Lords to deal separately with any amendment in any group if the need to do so arises. That is why the noble and learned Lord, Lord Ackner, with the very strong point that he had, has done so.
I did not intervene to prevent either the noble and learned Lord, Lord Ackner, saying anything, or the noble Lord, Lord Renton. As the noble Lord, Lord Renton, raised it, my understanding is that it certainly is open to any noble Lord to ungroup an amendment from the grouping. The noble and learned Lord, Lord Ackner, did not seek to do that. Be that as it may, this is by way of explanation, for example, to the noble Baroness, Lady Warnock, who I did not notice in the Chamber before lunch. I may be wrong and if I am wrong, I apologise. I gave the answer to the amendment proposed by the noble and Lord, Lord Ackner, earlier. Perhaps I may point out that this is not the first opportunity for this point to be made. The debate before the Statement will reveal what I had to say about the independence of the judges and my confidence in them. I shall summarise the response that I gave.
A short adjournment—we spent quite some time talking about a short adjournment—should take place so as to enable a prosecutor not in the heat of the moment, as the noble Lord, Lord Thomas of Gresford, said, to be forced into a decision, but to consider out of the heat of the moment whether it is appropriate. It is so as to avoid that situation that it is right that there should be an adjournment. That is what the Bill seeks to do. I continue to resist the amendment.
I still lack a proper answer to the points which I have made. I am sorry that the noble Baroness, Lady Kennedy of The Shaws, has just left the Chamber because I thought that she made a most impressive speech when we were dealing with juries this week. I complained that behind such amendments was the Treasury hand seeking justice which satisfied its views of justice being returned in a manner which it thought the most economic.
The noble Baroness, Lady Kennedy, provided an additional and stronger reason. Behind this amendment, and the others when we come to sentencing, will be found the desire of the executive to exercise control over elements of the criminal justice system. However, this is neither the right time of day nor the right stage in the term to force Divisions. I accordingly ask leave to withdraw the amendment, but promise that it is really part of a strategy for mieux sauter when we reach the Report stage.
moved Amendment No. 133D:
Page 41, line 2, at end insert—
"(7) Where the prosecution has agreed that the defendant shall be acquitted in the circumstances mentioned in subsection (5) and either of the conditions mentioned in subsection (6) are fulfilled, the judge shall order the acquittal of the defendant accordingly."
All I require from the noble and learned Lord is for him to say that the judge will obviously order the acquittal of the defendant in the circumstances envisaged in this amendment. His reassurance is all that I seek. In my respectful view, it would not be open to the judge to do anything other than order an acquittal when the prosecution have agreed that the defendant shall be acquitted. I beg to move.
The scheme of the Bill is to enable the prosecution to appeal against any ruling terminating from the prosecutor's point of view. The provisions require that the prosecution accept an acquittal under the Bill as drafted. Clause 62(2) provides for the Court of Appeal to order an acquittal where the prosecution loses the appeal. I accept that it is silent as to what happens after the prosecution abandons an appeal or fails to obtain leave to appeal in the first place. I understand therefore why the amendment has been put forward. I undertake to take away the amendment and to consider it with a view to making our views known further on Report. I hope that that will be sufficient for the noble Lord's purposes.
moved Amendment No. 133K:
Page 41, line 21, leave out from "may" to end of line 22 and insert—
"reverse or vary the ruling appealed against where the ruling—
(a) was wrong in law;
(b) involved an error of law; or
(c) was one which no reasonable judge could have reached; and in all other cases the Court must confirm the ruling."
"where the ruling—
(a) was wrong in law;
(b) involved an error of law; or
(c) was one which no reasonable judge could have reached; and in all other cases the Court must confirm the ruling".
There is a general and a particular motive behind the amendment. The general motive is that if the jurisdiction of the court is not constrained in this, or a similar, way it is likely to be swamped with appeals from the prosecution. It will be particularly easy for the prosecution to seek to appeal decisions by the criminal judge which are purely fact based and, very quickly, the predictions that the noble and learned Lord made about the likely burden on the Court of Appeal will have been proved wrong.
There is also a particular reason for the amendment, especially subsection (c), which concerns appeals against a decision by a judge of no case to answer.
A decision by a judge of no case to answer at the end of a prosecution case is essentially a fact-based decision. It is either the view of the judge that there is no prosecution evidence at all against the defendant or a view that, although there is evidence, it is so slender that it carries no weight.
In my submission the situation is simply this: if a judge's decision that there was no case to answer is so unreasonable that no reasonable judge could have reached that decision, then I accept that that is fair enough. Earlier in the proceedings the noble and learned Lord the Attorney-General gave a good example to the Committee in relation to a rape case. But if a judge could reasonably have reached the decision, surely in those circumstances there is no case for the Court of Appeal to intervene. I beg to move.
Noble Lords on these Benches strongly support this important amendment because it will limit the prosecutor in considering whether to appeal, in particular, a terminating ruling. The noble Lord, Lord Kingsland, referred to rulings of no case to answer. If the Court of Appeal were to be invited to rule on no case to answer decisions, it really would be swamped. It would be necessary for transcripts of all the evidence to be placed before it and the appeal judges would need to second-guess the trial judge, who would have had the opportunity to hear the witnesses, to assess their veracity and so forth. It would be an impossible task. For those reasons, we support this amendment.
When I spoke earlier about the purpose behind this part of the Bill, I referred to the existing right of appeal for the defendant. At the end of the trial, the defendant has the right of appeal against both the conviction and the sentence. The prosecution has no right of appeal against decisions made by the trial judge which end the trial. I stress that we are talking about decisions made by the judge, not by the jury.
The Bill seeks to create a right of appeal which is equivalent to that for the defendant, but with very different requirements in relation to the circumstances in which it is brought. The appeal can be brought only with the leave of the trial judge or of the Court of Appeal. That is a very important provision because it is through that provision, together with the guidance which the Director of Public Prosecutions will give to Crown prosecutors—I envisage that other prosecuting agencies will be given similar guidance—that the number of appeals made will be limited.
In moving the amendment, the noble Lord, Lord Kingsland, made two points. The first was his concern about the number of appeals that may be brought, which is an important consideration. We have already touched on it in the course of our Committee proceedings today. It is a matter which, for example, concerns the resources to be provided for the Court of Appeal. I estimated the level of costs to ensure that the Court of Appeal would have the necessary capacity to deal with such cases. But that will be controlled by the leave requirement and by the guidance which will be given, as well as by the general principle, to which I have also referred, that this right of appeal is one to be exercised judiciously and sparingly.
However, I do not agree with the noble Lord's second point, to the effect that there should be some necessary limitation on the basis upon which the Court of Appeal could allow the appeal. I readily accept as a matter of fact that if the Court of Appeal is asked to review an exercise of discretion by a trial judge, then the court, in deciding whether to allow an appeal against that discretion, is unlikely to or perhaps even never would do so if it thought that the discretion was one which could reasonably have been exercised by the trial judge in the way that he did.
Equally, I readily accept that in this case, as it is in all others, the Court of Appeal is likely to recognise the specially privileged and favoured position that the trial judge will be in if it comes to a question of assessment of evidence because the trial judge will have seen and heard the witnesses. These are reasons why, in a case which turned on a question of discretion or on a question of fact, it is very likely that the leave requirement will be operated in such a way that the court will simply not grant leave in cases which would require that kind of exercise. Moreover, once the jurisdiction is up and running, the kind of cases that the Court of Appeal would or would not be prepared to entertain would become apparent from its decisions.
However, there will be cases in which, in the Government's view, it would be appropriate for the Court of Appeal to say, "Yes, it is true that this turns on a question of fact, but on looking at it we are in a position to judge—and it is so important that we can judge—that on this occasion it is legitimate for us to say that this particular ruling from the judge, although it turned on a question of fact, was wrong". I strongly suspect that those will be exceptional cases. If we are to provide a right of appeal which will enable the prosecution to test important rulings of the trial judge, it should not be restricted in the way proposed in the amendment. In short, therefore, the control will be through the discretion of the court.
I am loath to give further ammunition to those who complained about an earlier amendment, Amendment No. 133, but that is where the judgment and discretion will lie. So I resist the amendment.
I was in my place before the Statement. Perhaps the noble and learned Lord can help me on a matter to which he alluded before the adjournment and to which he has returned in this debate. Guidance is to be given to prosecuting authorities as to how this new jurisdiction to appeal shall be exercised. Before the adjournment, the noble and learned Lord referred only to the director; he has now referred to other prosecuting authorities receiving no doubt similar guidance. Where is the guidance for these authorities to come from? Will the guidance come essentially from the Attorney-General—who superintends, by statute, the Director of Public Prosecutions—through the director?
What kind of guidance will it be? This new jurisdiction cannot be exercised except with the leave of the court; that is to say, either from the trial judge or the Court of Appeal. I can visualise a trial judge who has made a controversial decision being very reluctant to refuse leave, particularly when Parliament has so recently gone to the trouble of making this appeal available. How will the guidance assist either the judge or the prosecutor?
Words which have a familiar ring have been used; for example, "sparingly"—what does that mean? It is a good fudge word, but what does it mean? What are you sparing? Sparing its use, perhaps, but surely not to the extent of not making use of this new facility in a proper case. What is a "proper case?" That is another good fudge expression that lawyers are used to. Then we have the word "judiciously". We hope that everything done by a prosecuting authority is done judiciously.
How will is this guidance be shaped? How will it help? If it is to come from the Attorney-General, it is difficult to see how, for example, the Commissioner for Customs and Excise can be so guided by the Attorney-General. Is there not a wee embarrassment in the fact that the Attorney-General, although not a member of the Cabinet, is a member of the Government at a time when they are looking so closely at anything which might give rise to an adverse perception?
The debate has ranged quite widely. I hope that all Members of the Committee will recognise that making the leave of either the trial judge or the Court of Appeal a requirement of this new right we are already putting within the hands of the judiciary and the Court of Appeal a strong power to regulate the number and type of cases they hear. I have no doubt that once the jurisdiction starts the Court of Appeal will make clear the kind of cases it expects to see. That may not be by way of a single judgment at the outset, but it will become apparent as the jurisdiction develops and the Court of Appeal will indicate what kinds of cases are appropriate.
In addition, as I indicated in the letter I sent to the noble Lord, Lord Kingsland—a copy of which is in the Library and which includes the statement to which I referred earlier—the Director of Public Prosecutions intends to develop internal guidance for CPS prosecutors. I have no doubt that the director will show me the guidance that he has in mind to issue. I expect that guidance to include not only matters such as the kinds of cases concerned but who should be consulted, whether or not a matter should be looked at by a chief Crown prosecutor, and so on. I do not seek at this stage to say what the guidance will be.
I hope that the Committee will find that statement helpful because it indicates that people will look at this issue in a way which, subject to the overall control of the court, will lead to cases being brought only where it is appropriate to do so.
The noble and learned Lord criticised me for saying that the power will be used "sparingly". With all respect to him, I find the expression perfectly intelligible. As to whether the power will be used "judiciously", I am glad that the noble and learned Lord said that all things that prosecutors do are judicious. In that context, I was saying that thought will be given as to how it should be exercised. I protest that the powers and controls are strong and adequate.
The noble and learned Lord asked me about the position of other prosecutors. He cited the example of HM Customs and Excise. I should tell him that, since the days when the noble and learned Lord held the position that I am privileged to hold at the moment, responsibility for Customs and Excise prosecutors has been taken by the Attorney-General. A report published earlier this week emphasised the desirability of that and of taking it further. In relation to those prosecutors, the guidance that the Director of Public Prosecutions intends to give will be extremely influential in the drawing up of the guidance which will apply to them. The letter states:
"I expect the other prosecuting authorities to do the same, possibly drawing on the CPS's approach".
However, I hope that I do not need to engage today in a debate about whether or not the Attorney-General who, although a government Minister, exercises an independent position, particularly when it comes to prosecuting—as the noble and learned Lord knows all too well—is the appropriate person to control the way that that prosecuting authority operates.
The noble and learned Lord could not possibly comment.
I, like many noble and noble and learned Lords, am concerned that so much in Chapter 9 is not to appear on the face of the Bill but to be part of either discretionary decisions of the Court of Appeal or guidance given by the Director of Public Prosecutions. I continue to be particularly concerned about the noble and learned Lord's approach to paragraph (c) of my amendment which would allow the Court of Appeal to strike down decisions by trial judges which no reasonable judge could have reached. Surely that ought to give the noble and learned Lord all the powers that the Court of Appeal needs to fulfil all the tasks he wishes it to fulfil.
If a decision by a judge is one that a reasonable judge could have reached, why on earth should the Court of Appeal have any role? Surely it is a well-established principle that a court in those circumstances should not be entitled to substitute its discretionary view for the discretionary view of a lower court. By rejecting my amendment, in effect, that is the principle which the noble and learned Lord seeks to deny.
The noble Lord saw me shaking my head, so I rise. The law is full of cases where the Court of Appeal—this being its function—says, "It was reasonable for this judge below to have reached this decision but we still adjudge, in the interests of justice, that it is wrong". Let us leave it to the Court of Appeal to determine which cases are appropriate for it to look into and in which cases it should overturn the decisions of trial judges as it does in other areas. Trust it. I know those words will be quoted against me in other contexts, but they are appropriate here.
This amendment is grouped with Amendments Nos. 133M and 133N. Again, I simply seek an assurance from the noble and learned Lord that the Court of Appeal will not have the power to order proceedings for another offence to be resumed in the Crown Court.
One envisages a situation in which a judge finds no case to answer and says to the prosecution, "You have brought the wrong charge; if you had brought a different charge, there would have been a case to answer. I will give you leave to appeal to the Court of Appeal". The Court of Appeal then agrees with the trial judge and orders that a substituted offence be tried. Substituting "that" for "the" will prevent what I would consider to be an abuse which goes far beyond the policy that lies behind these proposals. I beg to move.
It will obviously be possible for a prosecution appeal to be directed against the effect of a ruling on several offences. On the face of it, the proposed wording might suggest that the Bill is not sufficiently clear on this point. I am therefore happy to take these amendments away to consider them further and come back to this issue on Report, making our views known then.
In moving Amendment No. 133P, I will, with the leave of the Committee, also speak to Amendments Nos. 133Q, 133R and 133S.
We now come to Part 10 of the Bill, in which the Government seek to relax the ancient double jeopardy rule, which prevents someone who has been acquitted from being tried a second time for the offence. In a nutshell, Part 10 allows the person who has been acquitted of one of the 30 or so offences currently listed by the Government in Schedule 4 to be retried for the same offence if what is called new and compelling evidence comes to light.
This is indeed a controversial part of the Bill. I therefore think it right that I should put on the record now the general view of Her Majesty's Opposition on this matter. I could refer to it only telegraphically at Second Reading because I confined myself to just a quarter of an hour in debating a 300-odd clause Bill. If I outline our view in this group of amendments, it will save some considerable time later in our debates on other groups.
Our approach to this controversial matter is essentially pragmatic. We accept that many people regard it as offensive in the case of the most serious crimes, where a matter of public importance is at stake, that a person who is acquitted because there is at that time insufficient evidence cannot later be retried when compelling evidence has become available.
The Government recently held a meeting in this House at which noble Lords were invited to hear the views of families whose lives had been blighted by the failure to secure convictions in serious cases of murder and rape. Yesterday, the Leader of the Opposition in this House—my noble friend Lord Strathclyde—and I met the uncle of one young girl who was murdered in Brighton some 17 years ago. Indeed, two young girls were assaulted and murdered at that time—it was commonly known as the "Babes in the wood" case. The families believe, as do others in similar cases, that if the double jeopardy rule were to be relaxed, a conviction could be obtained in relation to the person who had previously been acquitted.
In tackling our debates in this part of the Bill, I feel sure that all noble Lords will have the utmost consideration for families such as those, while also being determined to ensure that the Government's proposals, if they are to be implemented, should work effectively but fairly. If we fail to do that, cases brought against acquitted individuals under these clauses will either not proceed at all or be abandoned midstream. Nobody would benefit from that, and the hopes raised by the Government would be dashed. In saying that, I make no criticism of the Government, either direct or implied. I simply recognise how difficult it will be to make the powers work in the right way in practice and that, above all else, the existence of a power for retrial will not necessarily mean that guilty people will be convicted.
I turn to what appear to be technical amendments in this group. They are probing and relate to the territorial extent of the provision. It will be clear that Clause 69(1) refers only to England and Wales. Clause 89 contains the modifications necessary for Part 10 to apply to Northern Ireland. Clause 69 allows a person to be retried in England and Wales if they have been acquitted in England and Wales or in any other part of the world outside the United Kingdom. However, there is no reference whatever to Scotland in Part 10.
The Bill places us in the frankly bizarre position that someone acquitted of an offence in France, Germany, Italy, Spain or any country could be retried for that offence in England and Wales, but someone who is acquitted of an offence in Scotland, which is a part of our own United Kingdom, could not be retried for that offence in England and Wales.
"An acquittal that occurred in Scotland would not be covered . . . The Scottish Executive have decided that they do not want that to happen. That is a product of devolution . . . The situation that I have described reflects the nature of our relationship with the Scottish Executive and the Scottish Parliament".—[Official Report, Commons, Standing Committee B, 16/1/03; col. 5.]
I should like to press the noble and learned Lord the Minister a little further on this point. Why cannot and should not this Parliament, acting as a legislative body for the criminal law of England and Wales, and of Northern Ireland, include a provision in the Bill to place Scotland on the same footing as every other European Union country and, indeed, every other country? As I read the Bill, Scotland will be the only place on Earth where it will be possible to be acquitted of a crime and then not retried in England and Wales, or in Northern Ireland, for the same crime if new and compelling evidence comes to light. Would the Minister confirm that my analysis is correct?
I now turn to my amendments which would insert "Northern Ireland" into Clause 69(1). As a result of Clause 89, which was inserted at Report stage in another place, the provisions of Part 10 will also apply in Northern Ireland. My question is about the interrelation of the provisions for England and Wales and Northern Ireland. Clauses 69(1) and 69(4) make it clear that, so far as concerns England and Wales, a person can only be retried in England and Wales if they have previously been acquitted in England and Wales or
"elsewhere than in the United Kingdom".
I have already referred to the position of Scotland, and is Northern Ireland not in a similar, although not entirely analogous, position as a result of the Government's drafting?
Is the effect of the Bill, therefore, that although Part 10 will apply in Northern Ireland, a person acquitted of an offence in Northern Ireland can be retried in Northern Ireland but not, as I read the Bill, in England and Wales, because Clause 69, which deals with retrials in England and Wales, allows a person to be retried only if they have been convicted in England and Wales or outside the UK? Is not the position mirrored in respect of England and Wales when the provisions of the Bill are applied to Northern Ireland? I would be grateful for clarification from the Government. The matter seems very convoluted, and it seems that there may be problems in the way in which the Bill's drafting affects the availability of retrial. I beg to move.
In moving the amendment, the noble Baroness took the opportunity to state the position of her party on Part 10. I hope that I may be forgiven for doing so briefly myself, before coming to the amendment tabled in my name.
The rule that a person cannot be tried twice for the same offence is so well established in our law that we should be very cautious indeed before we accept Part 10 as it stands. The rule could have been challenged when they discovered fingerprints in the 19th century. DNA could be regarded as the 20th century equivalent of the 19th century discovery of fingerprints. But the rule survived, and it survived because it is based on a very sound principle, which applies equally to civil proceedings and criminal proceedings—that there must be an end to litigation. I could put that principle in Latin but I am sure that the Committee already knows the Latin and, therefore, I need not repeat it.
That is the principle but I accept that the discovery of DNA has made a difference since, as I understand it, we can now be absolutely sure of guilt the second time round. If so, it seems to me that a limited exception to the rule is now justified. The only question is, where is that limit to be placed? No one, I think, suggests that the prosecution should be entitled to a third bite at the cherry. No one, I think, suggests that the exception to the rule should be extended across the whole range of criminal offences. It should in my view be confined, at any rate to start with, to the most serious crime of all; that is, the crime of murder, and not the 31 offences which are now included in Schedule 4.
As happens so often, the Home Office simply cannot resist the temptation to overegg the pudding. When we reach Amendment No. 135ZA, I shall support the amendment of the noble Lord, Lord Thomas, which I prefer to the amendment in the name of the noble Baroness, which I believe is Amendment No 135. I beg leave to address the Committee later on my amendment but in the mean time I await the Attorney-General's response to these amendments.
I am grateful to both the noble Baroness, Lady Anelay, and to the noble and learned Lord, Lord Lloyd of Berwick, for their general observations. I am particularly grateful to the noble and learned Lord, Lord Lloyd of Berwick, for saying that the issue is really not about the principle but how the principle should be applied. We shall consider that in later amendments. Therefore, I shall not say anything further about the reason for this part until we reach the more detailed provisions. I hope that the Committee will understand that. At that stage, I want to come back to the point rightly and powerfully made by the noble Baroness about the effect on families of certain of the cases we are discussing.
I hope that I may confine myself at this stage to the important, although technical, issues raised by Amendments Nos. 133P, 133Q, 133R and 133S.
Before the noble and learned Lord proceeds any further, will he indicate what he considers would be the appropriate point for any Member of the Committee, such as myself, who wishes to raise the general principle that has just been touched on by two speakers to do so? Is there any particular slot where that would be appropriate? Otherwise, I should like to speak now before the noble and learned Lord finishes his comments on the technicalities. I gathered he had it in mind that there would be such an opportunity.
I am the last person to advise the noble Lord when he should speak. Specific amendments relate to whether the provision should be retrospective, for example, the amendment spoken to by the noble and learned Lord, Lord Lloyd of Berwick, about the offences which should be covered. Those are probably the two most appropriate points at which more general observations might fit in, but I do not stop anyone speaking at any point if he or she considers it helpful to do so.
I hope that I can help the Committee. I understand and appreciate the way the matter has been expressed by my noble friend and by the noble Lord, Lord Neill of Bladen. I believe that Amendment No. 134 in the name of the noble and learned Lord, Lord Lloyd of Berwick, which we shall reach shortly, and which raises the question of retrospectivity, would be a good point at which to comment more generally on the clause.
I entirely accept that. I was simply giving the reason why I had not suggested it as a place to debate the matter, because no one had given notice that they wanted to resist clause stand part. I have done as much as I can to help Members of the Committee identify when they would like to speak.
I have not dealt with Amendment No. 133P at all yet. I shall describe the position in relation to Scotland. The noble Baroness is absolutely right to say that the effect of the way in which the Bill is presented to the House is that, if there is an acquittal in Scotland, it would not be open to the Court of Appeal in England to grant leave for a further trial in that case. At least at the moment, the Scottish Executive and the Scottish Parliament have not decided that they wish to introduce to Scots law the changes brought about by Part 10.
The Government strongly take the view that it would be inappropriate to seek to include acquittals by Scottish courts in the scope of cases which may be retried under Part 10. Criminal law in Scotland is a matter for the Scottish Executive and Scottish Parliament. That is the result of the arrangements for devolution, which were approved by this House. Because under those arrangements criminal law is a matter for the Scots, it would not be appropriate in the Government's view to attempt to overcome that issue by applying the measures to Scottish acquittals. That is how the matter would be perceived—put shortly, that this Parliament would, as it were, allow a right of appeal in an English court to overturn a Scottish acquittal. That is why Scotland is in that position.
As the noble Baroness rightly said, Clause 89 applies the relevant provisions to Northern Ireland. Therefore there would be no difficulty should, for example, further evidence come to light of a new and compelling nature sufficient to justify an application under this part of the then Act in Northern Ireland when there has been an acquittal in Northern Ireland. It seems to me that there is no reason why, if that evidence has come to light in England or Wales, that evidence could not properly and indeed most appropriately be passed to the prosecuting authority in Northern Ireland, for that authority to consider whether to proceed. I see no difficulty about that.
I shall take away for further consideration the issue of whether there still remains a gap. It is not obvious to me that there is, in practical terms, but I shall certainly give further thought to it.
I am grateful to the noble and learned Lord for his general guidance with regard to how Members of the Committee may address the general issues. I only laid out the barest guidance on that in referring to the approach that we on these Benches were taking. We will have opportunities as we go through other amendments to look at each and every objection in detail, and how they might or might not be overcome.
I am particularly grateful to the Minister for addressing the detail of the technicality of the amendments, and for his offer to look again in case there is some lacuna with regard to Northern Ireland. I beg leave to withdraw the amendment.
In moving the amendment, I shall speak also to Amendment No. 133U, which is supported by the noble Lord, Lord Thomas of Gresford. They are also probing amendments and relate to subsections (4) and (5) of Clause 69.
On subsection (4), will the Minister confirm my understanding of the drafting, which is that courts in England and Wales would have the jurisdiction to retry a qualifying offence no matter where in the world it occurred? Will the Minister reveal what discussions there have been with authorities in other jurisdictions? Could he confirm my understanding that, although there have been discussions, no conclusions have been reached so far? It is important to know how those measures will be implemented. Does the Minister yet have any idea of which jurisdictions would agree or refuse an extradition request for a suspect in such circumstances, because of their own rules against double jeopardy?
In Standing Committee in another place on 16th January, the Under-Secretary of State, Mr Hilary Benn, said that he was not aware of any discussions at that stage with foreign authorities about the effects of that part of the Bill. I understood that the Government intended to take part in such discussions. Will the Minister update us on those?
We referred to some of those matters when we debated that part of the Crime (International Co-operation) Bill on which the noble and learned Lord responded on behalf of the Government. Although it is a little while ago now, they were such exciting exchanges that I am sure they are still fresh in his mind.
I turn to subsection (5). The Bill states that conduct which is punishable under the law of another country is to be treated as being,
"an offence under that law for the purposes of subsection (4), however it is described in that law".
Will the noble and learned Lord explain the purpose of those words? The Explanatory Notes state at paragraph 281:
"Subsection (5) recognises that offences may not be described in exactly the same way in the legislation of other jurisdictions".
We have certainly come across that in many instances when dealing with the provisions of the Extradition Bill and the loss of dual criminality in Part 1 of that Bill.
In what circumstances are any of the offences listed in Schedule 4 of the Bill described in other countries as not being criminal offences? Noble Lords who took part in our debates in Grand Committee on the Crime (International Co-operation) Bill will recall our discussions about administrative proceedings. I note that my noble friend Lord Renton is in his place. He took a significant part in those discussions, as did my noble friend Lord Carlisle of Bucklow. Is that what the Government have in mind? Are there any specific instances to which the Minister can point of the offences listed in Schedule 4 not being described as criminal offences under the law of other countries, or is it a kind of belt-and-braces, just-in-case provision?
Alternatively, do the words relate not to how an offence is classified—whether it is administrative or criminal, for example—but to the names given to particular offences? In another place, that seemed to be what the then Minister, Mr Hilary Benn, was hinting at, when he said in Standing Committee on 16th January at col. 392:
"We are talking here about the equivalence— his word, not mine—
"of what will constitute a qualifying offence. Because offences are described and framed differently in other jurisdictions, it will be necessary to undertake an equivalence exercise".
Will the Minister comment further on what the "equivalence exercise" would comprise? Who will undertake it? Will the Court of Appeal and the court in which the person is retried, as well as the DPP, have to be satisfied that the offences are equivalent? I would welcome clarification from the noble and learned Lord on those matters. I beg to move.
I have an objection in two parts. The first part relates to the practicalities of these provisions. That an acquittal anywhere in the world can be "appealed", to use the noble and learned Lord's expression, in this country is extraordinary. He has told us that the reason Scotland is not included in these provisions is that it has no intention of abolishing the rule on double jeopardy. I have not heard that any of the common law countries have decided to abolish that rule, and it seems to me impractical to put the acquittals in other countries under the spotlight.
Secondly, if there is no reciprocity—if no one else throughout the world is going to follow this line and say that an acquittal in the United Kingdom is not good enough and that they will investigate an offence all over again—why should we start down that road? I entirely support the amendment.
The noble Baroness asked me a number of questions and I must indicate straightaway that I shall have to write to her in relation to a number of them. I am afraid that I do not have the answers at my fingertips. She is right in saying that I took part in the proceedings in this House on the Crime (International Co-operation) Bill, and exciting though it was I cannot immediately recall all the details which she thinks I should be able to recall.
The noble Baroness asked what is the state of the discussions that have taken place with other countries in relation to the potential operation of this clause. Those discussion are continuing, but I would like to write to her in order to tell her as much as I can on that. That may also deal to some extent with the point made by the noble Lord, Lord Thomas of Gresford.
Secondly, the noble Baroness is right to say that the application of extradition rules will be important in practical terms, because if the person in relation to whom a retrial is sought is not present in this country, extradition must be used in order to bring that person within the jurisdiction of the court. Again, I will have to write to her on the operation of those rules, with copies to other noble Lords who have taken part in the debate.
As regards the purpose and meaning of subsection (5), its broad purpose is apparent. Subsection (4) operates in circumstances,
"where a person has been acquitted, in proceedings elsewhere than in the United Kingdom, of an offence under the law of the place where the proceedings were held, if the commission of the offence as alleged would have amounted to or included a commission (in the United Kingdom or elsewhere) of a qualifying offence".
Clause 69(5) is not intended to cover actions which do not constitute offences abroad. It is intended to refer to an offence which may be described differently abroad, but which amounts to a qualifying offence over which this country has jurisdiction. I am afraid that I cannot indicate specifically, by reference to a particular country, how an offence which appears at present in the relevant part of Schedule 4 is described in that country which would give rise to that issue. If I am able to give more information about that, I will include it in the letter that I have in mind.
The noble Lord, Lord Thomas, raised an objection of principle. Remember this, I would say: at present, the courts of this country are justified and entitled to try a serious criminal matter where there is evidence for that to be done. It is accepted that in certain cases the fact that a person has been acquitted in another country of the same offence may constitute a bar. In cases where it does not constitute a bar, at present such a charge could be brought in the courts of this country.
While special devolution provisions relate to Scotland and while practical issues may arise, such as extradition rules, the Government have taken the view that if there is evidence of such a serious offence of a new and compelling kind—we shall discuss in due course where the line should be drawn as to what is a serious offence for these purposes—then justice would suggest that the case should be tried. It should not matter that the acquittal took place in another country rather than in a court in this country.
However, so far as concerns Amendments Nos. 133T and 133U, I hope that the explanations that I have given, together with my promise of further explanations, will satisfy the noble Baroness sufficiently and that she will not press the amendment today.
Subsection (4) appears to be most extraordinary. As I understand it, it gives a power totally dissimilar to anything that we have previously had in criminal law in this country. Do I understand correctly from what the Minister said that someone could be acquitted—let us say, in the Caribbean or in France—of one of the 81 offences listed in the schedule to the Bill? And do I understand that it is the intention of the Government that there should be a power then to apply to the prosecutor—whoever that may be; presumably the defendant has been prosecuted by another body in the country in which his case took place—or to apply to the Court of Appeal in this country to order a retrial? Is that correct or not on the basis of new evidence?
The noble Lord adds at the end "on the basis of new evidence". The whole of Part 10 is directed at permitting in particular cases—we shall come to what those are and what the safeguards are—the authorisation of a further investigation. With the consent of the Director of Public Prosecutions an application is to be made to the Court of Appeal to determine whether or not, because there is new and compelling evidence and because the interests of justice so require—as I said, we shall come to all those safeguards—the case should be tried again.
This clause states that if that can be done—if the conditions are satisfied and if, in the view of the Court of Appeal, the interests of justice require that to be done—where the acquittal took place in Maidstone, so also should it be capable of happening if the acquittal had taken place in Lyons or in some other place in another country in the world. In my respectful view, there is nothing astonishing about that. The same principle is being applied whether the acquittal took place in this country or somewhere else. But the strong safeguards will still apply.
I emphasise that Clause 69(4) applies only in circumstances where the offence is one for which the courts here have jurisdiction; for example, in the case of murder alleged to have been committed by a British citizen abroad. That could have been tried here. In the example given, it has not been tried here; it has been tried in France or wherever. Had it been tried here, the provisions of Part 10 would apply so that a retrial could be ordered if the conditions were made out. The fact that it could have been tried here but has not been—it has been tried somewhere else—should not prevent it from being the subject of an application under this part. The final words of Clause 69(4) are,
"in proceedings elsewhere than in the United Kingdom, of an offence under the law of the place where the proceedings were held, if the commission of the offence as alleged would have amounted to or included the commission (in the United Kingdom or elsewhere) of a qualifying offence".
The noble and learned Lord referred to a very interesting point. The crimes of universal jurisdiction in which a British citizen is the defendant are piracy, genocide and murder. That is one reason why subsequent amendments will seek to confine this power to a limited degree. Does it mean, for example, that a person who has been acquitted of murder while serving in the Armed Forces in Germany can face a new trial in this country, simply because evidence that was available in this country was not available in Germany?
The noble Lord is now getting into the question of what are the conditions. We shall come to those. The requirement under Clause 72 is for new and compelling evidence. We shall come to what that means. We shall also turn to the fact that the interests of justice test to be applied takes into account certain matters. In Clause 73(2)(c), the question of interests of justice is to be determined having regard in particular to whether certain evidence,
"would have been adduced in the earlier proceedings . . . but for a failure by an officer or by a prosecutor to act with due diligence or expedition".
I am very happy to consider the specific example the noble Lord gives and to come back on that. I just take issue with the proposition that there would be anything other than the full rigour of the conditions set out in Part 10, which would apply wherever the acquittal had taken place.
In criminal law it would have to take place under English law. We do not try cases in our criminal courts under any other law.
If a person was convicted of murder in France and acquitted under French law, and there was new evidence, does that mean that there would then be a power to apply to retry him in this country under English law? On what basis—I know we shall turn to these conditions later—would that court know whether the evidence was genuinely new evidence available in another country at the time of the original trial?
Perhaps I may make my position clear to the Attorney-General. I actually support the principle behind Part 10 and said so at Second Reading. However, I think that one must consider whether it is appropriate to use it in cases where the original trial has not taken place in this country.
I must say that I do not often come to the rescue of the Attorney-General, but it seems to me that he is plainly right on this case. If we are going to accept this principle at all—if there is new evidence which satisfies Part 10 and if we have jurisdiction to try a man a second time in this country—it does not matter a row of beans whether he has been acquitted here or elsewhere.
I am grateful to the noble and learned Lord for his explanation. He has sparked a realisation of how important it is that we get right the safeguards and the list of offences in Schedule 4. The noble and learned Lord was saying that we will get to the details later. We are dealing here with the extent of the application of the jurisdiction on how we will operate the relaxation of double jeopardy. In fact, it has disappeared in many cases. If we are going to accept that the principle is right, we must make sure that the fact is right.
I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick, that if the principle of double jeopardy goes in certain limited cases, the guilty should not escape—if that is what we are trying to say. But in so doing, we must ensure that we are content with how we define that loss of double jeopardy. We will have that opportunity in later amendments.
I am very grateful to the noble and learned Lord for saying that he will write to me on the specific questions I raised. He will know when we were dealing with the Extradition Bill, hidden away in Grand Committee upstairs, that I also expressed concerns about the compatibility of the provisions of this Bill with the Extradition Bill and that the Government later this summer—or indeed autumn or winter, whenever we are going to finish these Bills—will achieve some synchronicity whereby these particular clauses are compatible.
I may not agree entirely with the noble Lord, Lord Thomas of Gresford, about the principle of the matter—I may go further than he in agreeing with some things that the Government propose—but I am certainly concerned about how the matter is put into effect in practice. For the moment, I beg leave to withdraw the amendment.
Perhaps I may start by saying that this is in no way a paving amendment. The one thing that stands out a mile from Clause 69 is subsection (6). Indeed, I was surprised that no one picked up subsection (6) on Second Reading. I should have done so myself if I had been able to take part.
We in this House are surely right to have a strong antipathy to retrospective legislation—an antipathy that is not confined to the retrospective creation of new offences. It goes much wider than that. All retrospective legislation is undesirable, but especially when it is liable to deprive a man of his liberty, whether or not by creating a new offence as in this provision.
Let me give an example of what I have in mind. A man commits one of the less serious offences under Schedule 4. He is tried and acquitted. All of that happened five or 10 years ago. He consults his solicitor at the time and is told, perfectly correctly, that he cannot be tried again for that offence. He then marries and, perhaps to clear his conscience, he tells his wife that he was indeed guilty of that offence. The marriage then breaks up, perhaps in acrimonious circumstances.
Is that man then to live for the rest of his life in fear that his wife will tell the police that he confessed to the crime, or perhaps sell the story to the newspapers? I would regard that as the grossest injustice. He had a right in accordance with our law not to be tried again—a right that accrued five or 10 years ago when he was acquitted. If the rule of law means anything, he surely ought not to be deprived of that right by subsequent legislation. It is no good saying, "Well, he was guilty anyway so he cannot complain". That would hold good only if the guilty are to be regarded as having no rights—hardly the mark of a civilised society.
I should be very surprised if the Attorney-General were to take that line. No doubt he will say instead that the Court of Appeal would never exercise its discretion to order a retrial in such a case. Maybe not. But the Government seem to be taking that line throughout the Bill as we go through it clause by clause. It is surely wrong to enact illiberal and repressive legislation and then say, "Oh, but it will not be enforced, or only in the most exceptional circumstances". The criminal law should be certain in its impact. As we lawyers would say, it should not depend on the length of the Lord Chancellor's foot, if, indeed, there will shortly be any foot to be measured.
It may then be said that unless we make Clause 69 retrospective, it will be some years before it can be applied; to which I should reply, "So what?". We have lived with the rule against double jeopardy for hundreds of years; surely we can live with it a little longer—unless, of course, the police have specific cases in mind that they would like to bring back before the courts to secure a conviction. I caught a hint of that in the speech of the noble Lord, Lord Mackenzie, at Second Reading on 16th June at the foot of column 600 of Hansard. I hope that I was wrong, because I can imagine nothing more abhorrent than to pass retrospective legislation designed to catch particular individuals.
For the reasons I stated earlier, I am in favour of the limited exception to the double jeopardy rule; but I am wholly against making that change retrospective. I beg to move.
The noble and learned Lord the Attorney-General was good enough to indicate that I might make a few observations about the general principles involved here. I am surprised at the meekness with which the Committee is accepting the situation, where a centuries' old rule against double jeopardy is being jettisoned. I find it astonishing that, at present, no amendment on the matter has been tabled. Perhaps something can be done on Report.
A very grave and serious principle is involved. I do not agree with the reference by the noble and learned Lord, Lord Lloyd of Berwick, to a Latin tag to the effect that it is in the interests of the state that litigation should come to an end. It is my understanding that that applies to civil litigation. The principle on double jeopardy is that it is a very grave thing for a man or a woman to be prosecuted for a criminal offence. If acquitted, the acquittal should stand for all time; it should not be a provisional acquittal. Something very serious is at stake.
I hear people talk about DNA cases, where the new compelling DNA evidence is brought to light, but that is not what we are talking about in the Bill. We are talking about so-called "new and compelling evidence" and where it is "in the interests of justice" that there should be a second trial. When I read the definition of "new" I could hardly believe it. New means old. Clause 72(2) states:
"Evidence is new if it was not adduced in the proceedings in which the person was acquitted".
All that it says is needed for evidence to qualify as "new" is that it must not have been brought forward. To make matters worse, when the Court of Appeal considers whether it is in the interests of justice to make an order under Section 71, under Clause 73(2)(c), one of the factors to which regard must be had is,
"whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".
You would be dealing with old evidence that was available but with which there has been some mess-up in the earlier proceedings. The width of the abolition of the double jeopardy rule is extremely extensive. No attempt has been made to chisel it so that it fits DNA-type conclusive evidence cases.
Secondly, what will be the consequence of abolition of the double jeopardy rule? My prediction is that there will be hounding in the media of people who are acquitted in sensational, high-profile cases. The acquittal will not be final, and it will be up to anybody, including the press, to see what additional evidence they can rootle out so that there can be a second prosecution of the person who has been acquitted.
I have some experience in those matters, having been chairman of the Press Council for some five years. The press is industrious in pursuing such matters. Perhaps that is a healthy thing.
Thirdly, what a time to introduce the abolition of the rule against double jeopardy. We are about to be asked to sign the convention coming out of the Giscard d'Estaing praesidium in France, which the European Council of Ministers in Thessaloniki announced the other day would be signed in June next year. Part of that is a charter of rights.
I remind noble Lords about Article 50—I say that ironically, because I do not think anyone knows what is in the charter of rights. It says that:
"No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law".
That is the basic provision in Article 50 of the charter. To make matters simple, an explanatory memorandum accompanies the charter which quotes Protocol 7, Article 4 from the convention on human rights, which states that the basic rule is that there is no double jeopardy. However, in subsection (2), it says that a member state may introduce a qualification and may have double jeopardy. We have had the right under the convention for years and not exercised it. We are about to exercise it when another rule comes into place via the charter.
I have serious and grave concerns about the abolition of the rule against double jeopardy. It will lead to very undesirable results and has been drafted in a way that is in no sense confined to a necessary and tightly drawn category of case.
I assure the noble Lord, Lord Neill of Bladen, that this House has not become meek. That is certainly not a word that has ever applied to me. I have always felt that the attitude with which I have most difficulty is "blessed are the meek", because they are the ones that end up getting the hardest deal of all.
I wanted to reassure the noble Lord. I contacted the Public Bill Office but did not have the draft Bill with me. I said that I wanted the provision for double jeopardy not to stand part of the Bill. I was informed that the provision was in Clause 77, but should have been in Clause 7. Noble Lords will see my name asking for Clause 77 not to stand part, but I was asking for the right to retry not to stand part of the Bill. I shall certainly table an amendment on Report.
I should like to speak to the principle involved and express my concerns. We are talking about a rule of constitutional importance which is recognised throughout the common law world and even beyond. It is applied in virtually all developed legal systems. I note that when the issue was discussed, in seeking to find support for this move away from principle, the Prime Minister himself said that such a system was used in Finland, Sweden and Germany. He was not able to name anywhere else, because there is no other place.
When I inquired into the actuality of that, I discovered that it meant that in places such as Finland and Sweden, there is an opportunity to re-try when there has been a corruption of the process. If the judge—there are no juries such as we know them in those systems—has been somehow corrupted and an acquittal has been entered wrongly because of that corruption, it is possible to re-try.
We have a similar provision. In the 1990s, legislation was carried through this House and the other place that allows for the retrial of a defendant who is acquitted when there has been interference with the process and the jury might have been nobbled. It has never had to be used. So, we have the equivalent of what exists in the countries to which the Prime Minister referred. We are running in the face of a principle that is accepted around the world.
The reason for the principle is clear. The noble Lord, Lord Neill of Bladen, expressed it better than I could. It is a serious and grave thing to put someone on trial. In denying the principle, we are creating something new. In murder trials and in other serious trials, we are creating the conditional acquittal. I want the Committee to think seriously about that. A person who stands trial will not be able to leave the court building sighing with relief. Many of us have had the experience of a client almost collapsing at the end of a trial, and we have been able to say to him or her, "It is over. You can rebuild your life". We will not be able to say that any more. It is a terrible punishment to visit on many people that they should live with uncertainty without finality. We know that, in a number of cases, terrible wrongs have taken place or guilty people have walked free.
Here again, an incredible problem presents itself to us. I, too, have been moved by the accounts of people who say, "The man who killed my daughter is walking around". We know that such cases exist. Happily, there are few about which we can say that with any certainty, but what we will visit on the many is the fear of the hand on the shoulder. That is a terrible thing to bring into our system.
It looks like an easy change to make. DNA has arrived on our doorstep, and we can be confident that someone has committed an offence. However, the Government really want to do exactly the thing about which the noble and learned Lord, Lord Lloyd of Berwick, expressed concern and deal with the sort of cases that come up in the press from time to time, in which people pained by an injustice want that injustice cured. I am afraid that retrospectivity is at the heart of it. It will bring credit on the Government, if they are seen to solve the grievances in a handful of cases.
We must think seriously about it. We are pouring a poison into the system. As the noble Lord, Lord Neill of Bladen, said, one of the problems is that, in the contemporary world, it is not just the policeman who can put his hand on one's shoulder; the press can do it, too. When a man or woman steps out of a courtroom acquitted in a particular kind of case, a campaign will immediately be mounted to have that person brought back before the court. That is a terrible thing to visit on our system.
There is a risk that disappointed investigators, particularly in high profile cases, will wish to recommence investigations immediately after an acquittal, especially if there is pressure from the media, from victims and their families, who will have a higher expectation, and from politicians who want to jump on the bandwagon. Those with previous convictions known to the investigating officer would also be a target. Officers with a personal animus against an accused may wish to pursue him, despite an acquittal. That is a worrying thing to introduce into our system.
There is a serious risk that any new trial would be unfair. If the process goes through—I know that there is an attempt to limit press coverage—it will mean that a new jury in a second trial will know that there must have been evidence that the Court of Appeal considered very compelling. We are introducing the presumption of guilt and attacking the fundaments of our legal system. After a first trial, the prosecution will have precise knowledge of a defendant's case and will be able to review and strengthen its own case and plug holes in it in the light of that knowledge. People may say, "So what?". The answer is that we are turning on their head all those things about the burden of proof.
The Government propose that fresh evidence should be taken account of only if it could not reasonably have been available for the first trial, but it is our view that such situations are likely to be commonplace because of inadequate investigation in the first place. Almost every case in which there is an unhappiness for the family or the victim—whether it be the Stephen Lawrence case, or the recent case of Damilola Taylor, or, indeed, the case of Julie Hogg where a mother found her daughter months after the event—invariably the reason why the case failed the first time was poor investigation. Instead of improving policing and investigation, it has been plugged again by trying to interfere with principles within the system.
The abolition of the rule against double jeopardy is liable to encourage unreasonable expectations in the victim. It is likely to create media campaigns and to rob the process of finality. That could have very real and serious consequences. I wish to support the noble Lord, Lord Neill, who rises up astounded that there is not alarm and despondency much wider than there has been about what it really will mean; about what the implications will be; about the kind of campaigning there will be on the steps of courts; and about how hideous it will become for the lives of many. So the cost to our system will be great.
Turning now to DNA, I say particularly to the noble and learned Lord, Lord Lloyd, that, if it is the situation that we do not have this as retrospective legislation—I hope, indeed as he does, that it is not, but I have my real suspicions as to what its purpose is—what is the need? What we should be urging for is proper investigation. I urge Members of the Committee to recognise that of course we hear these cases and we feel and empathise with the pain of those who feel a wrong has been done, but we must also measure it against the much greater wrong of interference within our system as a whole.
That role has existed since Roman law times; it is shared around the world for very good reasons. Interfering with it is a shocking step away from the principles on which our system is based. What do we say to people who say, "My daughter's murderer is walking free"? In the particular case of Julie Hogg, a man confessed that he had committed the murder of this young woman. He was brought back before the court and was convicted of perjury. The maximum penalty for perjury is 10 years' imprisonment. The judge, who I think made a mistake, gave that man six years. He probably should have faced the full range of that sentence—10 years probably would have been appropriate. Maybe we should be looking at lengthening the sentences on perjury; maybe we should be looking at other ways. But to leave it that a person walks out of a court room thinking that all he has got is a conditional acquittal for one of the most serious cases for which one will stand charged in court, is a terrible way to take our system. That is a terrible route for us to be going down. I go back to the principle and will not be meek on this subject.
In our debate on jury trials and whether they were to be curtailed, I thought that there was general agreement that we were all concerned to promote public confidence in the criminal justice system. I have genuine sympathy, to this extent: there is a difficulty in terms of public confidence in an extreme case of the character that has been recited. One can understand with deep compassion the disgust and anger of the relatives of someone who has been murdered in circumstances where DNA establishes beyond a doubt that the person acquitted was in truth guilty.
But one needs to look more deeply, as I trust the Government will, at where the interests of public confidence truly lie. The superficial answer is clear in the scenario that we are imagining. But a little further down the line, I wonder whether public confidence would be sustained if this change were made when it was seen how people having been acquitted were hounded and badgered and their lives made a misery month in, month out.
I turn to a point not as yet made in the debate: how would witnesses who had given evidence for the defence be treated? How would their lives be affected? What pressures would be brought to bear upon them by certain tabloid newspapers—I cite those as an example, but by no means exclusively—to change their evidence? How would their lives be examined and placed under the microscope? What efforts would be made to demonstrate in public that their evidence had been thoroughly unreliable because of all kinds of things that may subsequently have been brought to light? When that is seen to be the pattern, I venture to suggest that public confidence will not be quite so firmly behind the change now being proposed.
So much has been said in the debate that I need say no more. I endorse all the remarks just made by the noble Baroness, Lady Kennedy of The Shaws, and those of the noble Lord, Lord Neill of Bladen. I also support strongly the remarks on the question of retrospectivity made by the noble and learned Lord, Lord Lloyd of Berwick. For myself, I find this matter extremely difficult and I am deeply uneasy about the compromise arrived at by the two Opposition Front Benches because those who have been charged with and acquitted of murder, soliciting for murder or genocide—possibly this may even be extended to manslaughter; I can see the logic of it—are the very people against whom the decibels are going to be the loudest in the public press and on whom the pressures are going to be the greatest.
Not very helpfully, I confess to unease and to an unconcluded mind, but in any event I am absolutely certain that Schedule 4 is grotesquely overdrawn.
I strongly support the argument which has just been adduced by the noble and learned Lord, Lord Mayhew. I think that it should be possible for my noble and learned friend on the Front Bench to take this away and think again about the whole issue. Why was the rule of double jeopardy developed? In my view, nothing that has been said in this debate obviates the necessity of keeping that rule.
However, I never have and do not now want to score points against the Government, which I invariably support, but the burden of proof here rests very heavily on my noble and learned friend the Attorney-General. Moreover, the point made by the noble Lord, Lord Neill of Bladen, and subsequently reinforced by the noble and learned Lord, Lord Mayhew, about hounding by the media after an acquittal, is highly justified.
My noble and learned friend ought now to explain to the Committee how those consequences, which in any light are unacceptable, can be mitigated or, better still, how they can be avoided altogether. I hope that he will see that noble Lords who made these points have not done so lightly. They have been made as the result of a great deal of experience.
So far as I am concerned, therefore, I shall listen with great interest to what my noble and learned friend has to say, but I beg him to come forward with some form of reasonable response to the genuine points that have been advanced in this debate. I hope that he can do so.
While I accept the lash of the noble and learned Lord, Lord Mayhew, for the compromise to which he referred, I hope he will notice that my name is attached to this amendment, which deals with retrospectivity. As the noble and learned Lord, Lord Lloyd of Berwick, pointed out, towards the end of the 19th century fingerprints were discovered to be unique, but that made no difference to the double jeopardy rule.
We now have DNA, but that is not unique. The Committee will remember a case in Cardiff last week. Three men had been wrongly convicted and were acquitted by the Court of Appeal after serving some three years. The offender was finally traced through DNA—but not his own DNA. It was the DNA of a nephew, who was not born at the time of the original offence. It was so close to the DNA of the offender that those who investigated the offence were able to apprehend the right man after some 15 years. It was a case of some notoriety in Wales.
I have been involved in a case where, although it was a 10 million to one chance that the DNA found on the victim did not come from the defendant or someone closely related to him, it did not follow that there were not people within his own family who may have had similar DNA. The odds fell from 10 million to one to about two to one. It will not surprise the Committee to learn that the defence was that someone else in the family had committed the offence. DNA is not the wonderful complete answer to everything in investigations. In many cases there is still a question mark about it.
The noble Baroness, Lady Kennedy of The Shaws, said that in future people will live in uncertainty when they are acquitted. The amendment is concerned with people who, in the past, have lived in certainty that there was finality. If the amendment is not passed, they will all of a sudden find that the acquittal they received many years ago, maybe in another country, will no longer protect them from further investigation and the kind of pressure to which noble Lords have referred.
Furthermore, victims and their families who still carry the hurt with them will be disappointed. There have been many famous cases; indeed, the noble Baroness, Lady Kennedy, referred to some of them. However, in such cases where acquittals have taken place, I have not heard that there has been some new discovery of DNA that suddenly made those acquittals wrong. Those who have in the past finally come to a closure and conclusion about the trial that took place will suddenly find that it has all opened-up again.
The whole purpose of the rule against double jeopardy is to have closure and finality. As human beings our lives are short and we have to come to terms with decisions that are made. As noble Lords have pointed out, this is a rule that applies throughout the common law systems and in most jurisdictions where the rule of law prevails. We move from it at our peril.
I had not intended to speak on Part 10 because I am sympathetic to what one might call the "DNA aspect" of the proposed changes. But the remarks of a constellation of distinguished speakers today have led me to think that the clauses may not be tightly enough drafted.
I suggest to the noble and learned Lord the Attorney-General that if the possibility of retrial was limited to new and compelling scientific evidence that was not and could not reasonably have been available at the time of the earlier trial, that might go far towards making the proposed changes more acceptable.
Perhaps, also, bearing in mind what has been said by the noble and learned Lord, Lord Lloyd of Berwick, the question of retrospectivity requires further consideration. For myself, I regard that as a difficult question on which, possibly like others, I will retain an open mind.
This debate has turned into a general discussion about Part 10. I have great sympathy with the noble Baroness, Lady Kennedy, in seeking a method whereby she could discuss it. I have only one short point for my noble and learned friend Lord Lloyd. Even if his amendment were to be passed, it would do nothing to cure the situation in the future. The situations mentioned by the noble Baroness and the noble and learned Lord, Lord Mayhew, will occur when convictions take place after this legislation is in force, even if it is not retrospective, because the same situations will occur some years hence and there will be exactly the same anticipation and disquiet among those who think that they have been acquitted. Therefore, the issues raised go to the entire point of double jeopardy rather than against retrospectivity.
It seems to me that subsection (6) is essential to the Bill. It is only when you look at those few cases of manifest injustice which have occurred over the past 25 years that it is possible for any sane man to think that this is a fair provision. It is only when you focus on that individual pain and allow the rest of your common sense to be excluded that it is possible to think that the injustices which will be done by this provision in any way come close to, let alone are outweighed by, the benefits which this provision will bring.
The situation is exactly as the noble Baroness, Lady Kennedy of The Shaws, has said. We will regret passing this provision from the moment we pass it. It will, as the noble Lord, Lord Thomas of Gresford, said, open up a whole Pandora's box of years of past misery by people whose friends or relations or children have been murdered and who believe that they know who did it or that the person who has been acquited really did it and there is something that was not properly considered at the time. It will open up endless bitterness; it will be food and drink to the media, who will be able to run all sorts of operations to make people who have been acquitted and anyone associated with the trial miserable.
The costs of doing this are enormous in terms of human misery. The benefits are certainly tangible and important, but they do not outweigh the costs. The present rule is prevalent in so many systems, long-lasting and well respected. That is for a reason. It is because whenever people have allowed themselves the space and the rationality, they have concluded that that is the right balance. When so many societies with different outlooks and points of view have reached that conclusion, it is one that we ought to respect. I hope that my Front Bench will respect it too. Sometimes I think they share instincts of the present Home Secretary—they certainly did when we were last in power. I very much hope they have changed their mind.
The remarks that have just been made have brought me to my feet. It is worth remembering that these ancient protections have not existed accidentally and have not survived for so long as to be ancient protections for no good reason. They have survived for so long precisely because they have stood the test of time and been a hallmark of a civilised society which is not moved by populist concerns to do what seems cheap and easy and popular because of particular cases which have come to notoriety. The ability to resist pressures arising from such cases is one of the hallmarks of a civilised society.
My noble friend referred to the previous administration and the proclivities of the present Government. In considering a proposal of this kind, one is minded to ask whether it is appropriate to give this Government the benefit of the doubt on the basis that, if a credible case can be made, they should be supported in the interests of justice. However, the number of provisions in the Bill that offend previous principles that have lasted for centuries, such as the one that we are discussing, are so numerous that the Government have lost the right to the benefit of doubt.
As a former Home Secretary, I have to say that if I had dared to introduce a quarter of the provisions in this Bill, which go against the traditions of fairness and criminal justice, I would have been torn limb from limb by those on the opposite Benches—and they would have been right to do it. I regard the Bill as containing a number of provisions that are an affront to justice and to civilisation, and this is one of them.
In a debate of such importance, metaphorical self-evisceration is not helpful. The debate must surely be conducted on a serious basis. This part of the Bill seeks in a limited form to reflect the sense of justice of the community.
Let me put a contrast to the Committee. If we consider it just that someone who has been in prison for 15 or 20 years should be released because DNA evidence shows that person to be innocent and another person to be guilty, that accords with the sense of justice of our community. The innocent have been set free. We had an example of that only the other day, with the three people from Cardiff who were released and acquitted and the real murderer subsequently convicted because of DNA. That represents a sense of justice We might compare with that the case of a person who has been acquitted of murder 15 or 20 years ago, when DNA evidence shows that person in fact to have committed the murder. I do not believe that the community would say that it was just to let that person avoid a retrial and possible conviction under these provisions. Indeed, the sense of justice will be stretched in the extreme if we legislate to release the innocent but legislate to protect the guilty.
That practical state of affairs is what the ordinary person in the street will have in mind. The value of double jeopardy as a protection between the citizen and an overbearing state or prosecutor is absolutely fundamental and well established. The proposals in principle will not denigrate or destroy that protection, subject to two considerations.
The noble and learned Lord, Lord Bingham, the present senior Law Lord, closed one of his excellent lectures on justice by quoting from a decision of the Court of Appeal in Mattan. That was the case of a man who had been hanged 50 years ago whose conviction was posthumously overturned. I shall paraphrase the end of the judgment, quoted by the noble and learned Lord. It said that the instance indicated the absolute need for integrity by all those involved in the prosecuting process.
When we look to how the change in double jeopardy should be properly controlled, the first control must be absolute integrity by all those concerned in the prosecution at the time, as well as at the second attempt.
The second control must surely be the Court of Appeal Criminal Division. The wording that we shall have to consider, properly interpreted, gives that court very strong powers indeed to avoid sending back for trial unmeritorious attempts to reopen cases. The tenor of the statutory language that we are considering is that the measure is for wholly exceptional cases.
I apologise to the Committee for not being present earlier but I know from conversation with him the opinion that the noble Lord, Lord Neill of Bladen, expressed about the dangers. I mentioned that the two precautions of integrity and strong appellate control are essential.
In expressing my general support for the principle I want to close by inviting my fellow lawyers in this Chamber, in so far as it is intellectually possible—this is difficult for us because of our training and our upbringing—to look at the matter as if we were citizens in the context which I first described in opening these remarks. I do not think that anyone could condemn what I imagine to be the majority of ordinary reasonable citizens who would say that this limited change to double jeopardy, especially when scientifically justified, reflects our sense of justice.
I have been most impressed by the speeches during the past hour. They have shown this Chamber at its very best. I hope that I may from an entirely lay perspective offer a word of support to the noble Lord, Lord Brennan. I was brought up with the principle that justice must be done and must be seen to be done. What must be seen to be done is, in a sense, culturally relative and changes over time.
Provided the restrictions are drawn tightly—probably more tightly than in Clause 72—to make it clear that the evidence should be scientifically compelling, and not just compelling in a more general sense, the exception that proves the rule could uphold the principle of double jeopardy while allowing for exceptional circumstances. If that is not the case, the danger is that one brings the whole process of the administration of law into a certain disrepute because of the media attention which is given to the exception. So, provided Clause 72, and other relevant clauses, could be drawn more tightly, I personally would be willing to accept the measure, but with a heavy heart for all the reasons which Members of the Committee have given so impressively over the past hour or so.
The debate of the past 50 minutes has shown that the Bill is not a seamless whole as a Criminal Justice Bill but a portfolio Bill of a significant number of stand-alone changes to our criminal justice system, some of which receive wholehearted support. However, others, such as the one we are discussing, spark very deep concerns, and sometimes for different reasons among different groups within this Chamber and elsewhere.
I and my colleagues in another place have considered all these matters, as we have other parts of the Bill, very deeply. Indeed, I believe that our feelings echo very closely those that have just been expressed by the right reverend Prelate the Bishop of Chester.
I turn to the difficulties we face when we consider whether we should accept the relaxation of double jeopardy as a principle—a principle that my noble friend Lord Brittan said is ages old. If we accept that relaxation, which we on these Benches have, we then immediately pose ourselves the very difficult next step of what to do about retrospectivity. As soon as one relaxes the principle of double jeopardy, one builds in the effect of retrospectivity in the future. As the noble Baroness, Lady Kennedy of The Shaws, said so poignantly and so graphically, every person has to face the tap on the shoulder.
In accepting the fact that there should be a relaxation of double jeopardy as a principle, I do not underestimate the pain and the fear that will be felt by some. As the right reverend Prelate hinted, what is important is that pain and fear should be felt only by those who are guilty. That is why I think it is our duty to ensure that the rules within Part 10 are so closely and carefully drawn that we do not throw to the wolves of the tabloid press people who should not face retrial.
I, too, have reflected on the more general nature of the debate. The noble and learned Lord very properly directed us to whether subsection (6) should be deleted. I have a confession to make to him. I did not overlook the matter; an amendment was tabled in another place by my honourable friend Dominic Grieve, with the purpose of trying to probe what we as a Parliament were letting ourselves in for if we were to go down that route. We went through the painful and difficult decisions referred to by the right reverend Prelate and decided that we would accept double jeopardy, but with close restrictions.
Therefore, on this very rare occasion I do not agree with the noble and learned Lord, and I hope that it remains a rare occasion. However, I shall certainly try to ensure that Part 10 does not proceed in its current and unamended form, because the safeguards are not there at the moment to allow subsection (6) loose on the country.
My noble friend Lord Clinton-Davis invited me to consider that the points made today were not lightly made. I entirely accept that, and would never have thought otherwise. I entirely agree with those who have said that there are difficult choices to be made. The Government have considered those. I am sorry that my noble friend Lady Kennedy of The Shaws attributes this part of the Bill to the Government's desire to achieve quick credit. That is not how I see it at all. I see it as a provision to provide justice in exceptional cases where justice has not been done, and to protect others.
We have not focused on protecting others today. If, for example, we know that there is a man walking the streets who has been guilty of serious crimes, and whose DNA we did not have then but have now, and if we could prosecute him now although he was acquitted before, we could get him off the streets and protect other people's daughters and children. That is a step that we have to think long and hard about before we say that we will not take it.
I will come to that, but I shall deal with the principle in my own order.
The Government have been persuaded that it is necessary to make a limited exception to what the noble Lord, Lord Neill of Bladen, describes as an age-old principle and a rule that is centuries old. I am glad to have support not only from those on the Opposition Front Bench and—as I understand it, although I may not have understood it correctly—on the Liberal Democrat Front Bench, but from the noble Lord, Lord Brennan, in a powerful and important speech, and the right reverend Prelate the Bishop of Chester. I am grateful to the noble and learned Lord, Lord Cooke of Thorndon, for indicating that he also has been sympathetic to the principle, although he wants to consider the precise details, which I understand. I am also grateful to the noble and learned Lord, Lord Lloyd of Berwick, for his agreement that there should be a limited exception.
Those are not the only people who have taken the view that this is the right thing to do. The Law Commission supported the change. Lord Justice Auld in his report, Lord Macpherson in his report on the Lawrence case, and the Home Affairs Select Committee have all agreed with the principle of change. I am glad that the amendment has allowed us to air some of the issues of principle. I will deal with certain of the points that have been made, but I will not shrink from saying that, difficult though the issues are, it is right to make the change.
The noble Lord, Lord Neill of Bladen, said that it is a centuries-old rule. Yes, it is. Not for the first time this week, a Minister at the Dispatch Box is saying that that does not necessarily mean that it is right for all time. The evidence is there and the case has been made for this limited exception.
I do not agree with the assertion of my noble friend Lady Kennedy of The Shaws that no other country has a different rule. The annexe to the Law Commission report indicates—I have it in front of me—that that is the case, for example, in Denmark. Protocol 7, Article 4 of the European Convention, from which the noble Lord, Lord Neill of Bladen, read, indicates that it is accepted in the Council of Europe that there may be exceptions to the principle of double jeopardy, no doubt because there are countries that adhere to it.
Equally, I recognise—and it is always the case where there is a balance to be struck—that, to use the words of the noble Lord, Lord Lucas, there are implications of pain for some. I accept that there are certain risks attached. The noble Lord, Lord Neill of Bladen, referred to the risk of being hounded by the press, but went on, from his experience as Chairman of the Press Complaints Commission, to answer that point by recognising, as we all know, that that happens already, even without any such rule. The press is inquisitive and roots out injustice in all sorts of ways. I recognise that the provision carries a price, but it is a price worth paying, because of the justice that it will bring about.
I will deal briefly with the point that he made—
If the noble and learned Lord is relying on DNA for his justification, as he did at the beginning of his speech, that is a temporary problem because it is a new technique. Why not, then, make the Bill what our ancestors used to call "a probationer" and insert its own sunset clause in the provision? If the need is temporary, so should be the change in the rule.
I thank the noble Earl for his intervention. I do not restrict my case to DNA and I will come to a striking example that does not depend one little bit on DNA, but where I will challenge noble Lords to say that they do not see the cry for justice contained therein. I will come to that in a few moments.
DNA is a new technique. As other noble Lords have said, fingerprinting was a new technique once upon a time and, no doubt, we will see further new techniques in the future. Therefore, if we are to have the provision at all, as we believe we should, let it cover all of those cases.
I shall deal briefly with the point raised by the noble Lord, Lord Neill of Bladen, on a European matter. I hesitate today to go into any substantive issue relating to the draft Convention on the Future of Europe, which has been produced by President Giscard d'Estaing and to the intergovernmental conference, which is about to take place. However, I do know something about the European Charter of Fundamental Rights to which he referred as I was one of its negotiators. I know that it contains provisions that make it clear that where there are clauses—such as the one to which the noble Lord referred— which relate to the European Convention on Human Rights they have the same meanings, and include the same exceptions. I also know that that charter is not directed at what countries do within their own national competencies. It is directed, as its clauses make clear, to what is done by the Union's institutions or by member states when they are acting as agents. I do not regard that as a reason against these provisions.
My noble friend Lord Brennan put the matter very well when he referred to the sense of justice that the citizen and community would have. He said that we must not be seen to be legislating to protect the guilty. With the safeguards that are built into the Bill—and we will come to consider their detail—that is what we would be doing if we declined to carry through this provision and its retrospectivity.
We have moved a little towards a Second Reading or clause stand part debate. I make no complaint about that—indeed, I encouraged it. But it is worth remembering the safeguards that have been built in. They include retrials only for the most serious criminal offences. We will have to come back to exactly where the right judgment is to be drawn in relation to that and I shall not be drawn into that issue now. I know that it is an important issue and I look forward to listening carefully to what is said about the current list. There may be only one retrial. Any reinvestigation must be authorised personally by the Director of Public Prosecutions.
I thank my noble friend Lord Brennan for referring to the need for integrity of all those involved. That is something which as Minister responsible for the director and for the Crown Prosecution Service I hold very dear. It must be subject to the decision of the Court of Appeal—my noble friend's second condition. I agree entirely with him that the clause provides strong powers to send back unmeritorious cases. I refer to one of those and we will come later to the detail. I draw particular attention to the requirement that the evidence, to be compelling, must appear "highly probative" of the case against the acquitted person. There are other conditions, too; not just a bit of evidence or something which might have changed, but something which is highly probative of the case against the acquitted person.
Then, too, the interests of justice must be considered. Those will be an important safeguard. Reporting restrictions are also included so as to avoid the risk, so far as one can, that someone will be tried ultimately by the press rather than by a court seized properly of the matter.
Let me turn to retrospectivity. If one accepts that the principle of change is right—it is right to have a limited exception, subject to safeguards—I see no argument for saying that it should apply to cases only after the legislation comes into force. I will develop the reasons, but I respectfully note that those noble Lords, including the noble Viscount, Lord Colville of Culross, who said that the points that have been made are not assisted by making the provision not retrospective are right. None of the concerns expressed by the noble Lord, Lord Neill of Bladen and my noble friend Lady Kennedy of The Shaws, is dealt with by making it not retrospective.
Being not retrospective deals with one point and one point only. It is the example that the noble and learned Lord, Lord Lloyd of Berwick, gave; the example of someone acquitted of one of the less serious offences. But the principle must be the same. Let us assume that it is someone who has been acquitted of murder and who later confesses to someone of that murder—whether to a wife or someone else—who then goes to give that evidence. I respectfully beg to differ from him. If someone has been guilty of a murder, has confessed to that murder and has chosen to do that, I am not sure that I can agree with the noble and learned Lord that that person should be allowed to sleep easy in his bed.
I now turn to the specific example that I wanted to mention. It has been mentioned already but it is important to have regard to it because it also answers the point raised by the noble Earl, Lord Russell, and the noble and learned Lord, Lord Cooke of Thorndon, as to whether we should restrict this matter to DNA evidence. I refer to the case of Mrs Ann Ming, whom I and other noble Lords met the other day. She is the mother of Julie Hogg.
For those who do not know the story, we listened to Mrs Ming explain how, after the police had spent weeks looking for her daughter and told her that she must have gone off to start a new life, she went to the flat where her daughter had been living and discovered her decomposing body behind the bath panel. She then saw a man tried twice for the murder of her daughter. On each occasion, the jury was unable to reach a verdict and so he was acquitted. Within weeks, he was boasting in public houses that he had got away with the perfect murder. Some years later, he confessed to the murder and, when on trial for perjury, he confessed in court. I want to read from Mrs Ming's words. She said:
"His defence barrister says in court Dunlop"— that is his name—
"has made 'British legal history', being the first person to have been acquitted of murder then later to confess 'in court'. If this is the case, there are no guidelines, no test case, so please set a precedent with this case. Change the 'double jeopardy' law. Make it retrospective and, instead of criminals like Dunlop making a complete mockery of the British justice system, let Dunlop and others be brought to justice for the crime he has confessed to, not just for lying in court for this horrendous crime".
"I will challenge any civil liberties group about 'human rights'. Our daughter had a right to life. Dunlop took this from her. We have a right for justice for Julie and the only way for us and other families to obtain justice is to change the 'double jeopardy' law retrospectively".
I respectfully say to the noble and learned Lord, Lord Lloyd of Berwick, that if, as I believe is right, we make a limited exception to double jeopardy, I could not look Mrs Ming in the face and say, "This will not apply to a case like this". I could not look her in the face and say, "This applies only where there is scientific evidence, but not where someone has confessed several times and in court". I would have to say to her, "Of course, he committed the offence before. It was against the law then. We are not changing the law retrospectively. What he did was a crime then. He should be punished for the crime now". I could not say that the provision would apply only in the future. I resist the amendment.
I am not proposing the making of law for a single case. I have identified a striking case, which some noble Lords, as did I, had the opportunity of hearing about directly. It is a matter to which the noble Lord, Lord Brennan, refers, and which society considers to be justice. Only a few cases will be affected because they will be exceptional. I believe that the Director of Public Prosecutions said to the Home Affairs Select Committee that he would be surprised if there were more than a few cases. They are exceptional cases which cry out for justice, just as, fortunately, we have only a few cases which cry out for justice the other way.
I was very disturbed by what the noble and learned Lord said by way of illustration. He asked us to imagine that someone is tried and acquitted of murder and that several years later we obtain his DNA. We then know that he is guilty, and this guilty man is wandering the streets. I believe that that is a complete misunderstanding of DNA evidence but not one that I would expect a tabloid newspaper to avoid. I would expect exactly that kind of misstatement to be trumpeted in the tabloids—that is, that someone is wandering around with his DNA "found at the scene" or found on an object and therefore he is guilty.
DNA can provide absolute proof of innocence but it cannot provide proof of guilt. That is the case, first, because matching is not exact. A piece of DNA is cut into chunks with enzymes and we see how it comes out on a gel. We are not dealing with a complete sequence. So we are dealing with probabilities which are only in the millions and not in the thousands of millions. If we take the world as whole, it seems likely that quite a few people will have identical DNA.
DNA is also contained in many parts that we leave behind us in our passage through life, so it is easy—unlike a fingerprint—for it to turn up in places which might be inconvenient when it comes to an explanation. It may be very compelling evidence—and I understand that it is compelling evidence—but we cannot know that a man is guilty just on the basis that his DNA has been found at the scene until we have tried him. I was very disturbed that the noble and learned Lord, who understands a great deal, did not understand that.
I take that as a question directed to me. The noble Lord will understand that precisely what the Government are proposing is that someone should be tried on all the evidence there is. The illustration I gave concerned identifying a piece of evidence that may make all the difference to a case. I am not suggesting that it is the only evidence available. Should we allow the situation in which we now know that there is compelling evidence that this person may be a great danger, but we can to do nothing about it until he strikes again?
The debate has gone far wider than my amendment. That is as it should be. The amendment has at least served that purpose. As noble Lords know, I do not go so far as my noble friend Lord Neill, the noble Baroness and other noble Lords in their feelings against Part 10 as a whole. For my part, I am in favour of a limited exception to the double jeopardy rule. We shall be exploring those limited exceptions, I hope, when we come to other amendments which have already been tabled and those which will no doubt be tabled in the future.
I come back to the purpose of the amendment. It was not meant to deal—to answer the point of the noble Viscount—with the kind of difficulties that have been raised in relation to Part 10 as a whole. It was intended to deal with a specific problem, about which I feel quite strongly. Any exception we make should apply only to those acquitted in the future, in respect of whom it may well serve a useful purpose in the interests of justice, and not to those who have been acquitted in the past and who have since lived in the belief that they could never be tried again. That is the point of the amendment.
I must say that I do not feel wholly satisfied by the way in which the noble and learned Lord the Attorney-General dealt with the point. He dealt with it only by giving an example from the opposite extreme to the one I gave. Somehow it is much better to exclude those cases altogether by saying that, "This shall not be retrospective"—that is what I mean by retrospection—and then to go ahead from there. I shall want to return to the matter at a later stage. Meanwhile, I beg leave to withdraw the amendment.
moved Amendment No. 135:
Leave out Schedule 4 and insert the following new Schedule—
Qualifying offences for purposes of part 10
List of offences for England and Wales Murder
2. An offence under section 1, 3, 6 or 7 of the Sexual Offences Act 2003. Genocide, crimes against humanity and war crimes
3. An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17).
List for Northern Ireland Murder
Genocide crimes against humanity and war crimes
6. An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17).
7. A reference in this Schedule to an enactment includes a reference to the enactment as enacted and as amended from time to time.
Amendment No. 135 takes us to the subject of the limited exceptions, to which the noble and learned Lord, Lord Lloyd of Berwick, has just referred. It is grouped with Amendment No. 135ZA, tabled by the noble Lord, Lord Thomas of Gresford, which takes an even more limited approach than mine.
We turn to the difficult issue of which offences should be covered by the retrial provisions. The Government lists the offences in Schedule 4. As I have mentioned already, we feel that the range is far too large. It means that double jeopardy will not apply to a limited series of cases but to a range which is far too wide.
Why did the Government decide on that list? Why did they expand it during proceedings in another place? After all, the Law Commission recommended that only murder should be subject to the relaxation of double jeopardy. The argument for including murder is clearly that we should accept that someone who has a propensity to kill other people is a serious public menace. No doubt one reason that weighed heavily on the mind of the Law Commission was that there is an enormous public interest in ensuring that such people may never strike again.
We have tried to take a pragmatic approach to the matter. In Committee and on Report in another place, my honourable friends fully debated which offences should fall within the new rule relaxing double jeopardy. We have considered the matter further since those debates. I had the opportunity briefly to pass that information to the Attorney-General, which is reflected in the nature of our amendment.
We remain convinced that retrial should be permissible only in serious cases, but, as is evident from our amendment, we go further than the Law Commission. We say that Schedule 4 should be confined to murder, rape and genocide. We are trying to take into account the public interest question and address the most serious of offences. Also, from a purely practical point of view, it is essential that the police and prosecution are given the opportunity first to demonstrate that the new proposals work fairly and effectively before we even consider rolling out the abandonment of double jeopardy more generally.
As I said at the beginning of the Committee's proceedings today and in speaking to Amendment No. 133P, bringing a second prosecution will not be evidentially straightforward. Before we raise and then dash the hopes of victims and remaining relatives, we should ensure that the new proposals deliver both fairness and public benefit in the most heinous of offences only.
I have drafted the list of offences in the amendment to take the debate further than was possible in another place. In discussing the matter with my colleagues there, it became apparent that we would need to consider whether manslaughter should be added as a final item on the list. We are still considering that. I shall be interested to hear what the Attorney-General has to say in response to that—and, of course, the views of all other noble Lords.
Our underlying view is that the Government have not yet got the balance in Schedule 4—their shopping list—right. It is a recipe for failure and disappointment. That would simply be wrong—wrong for the public interest and wrong for all those who appear before the courts in future. I beg to move.
I shall speak to Amendment No. 135ZA, which is grouped with the amendment moved by the noble Baroness. If there is to be any invasion of the principle of double jeopardy, it should go no further than that recommended by the Law Commission. Its report was published in March 2001 after two rounds of consultation. Why, if the Law Commission—which is supposed to advise the Government on criminal law matters—limited the proposal as it did, have the Government gone so much wider, with a list of 31 offences?
The Law Commission said:
"The approach we have decided to adopt is to see whether we can identify specific offences within the larger category of offences potentially attracting a life sentence which we believe are inherently serious enough to justify the application of a new evidence exception. We have come to the conclusion that under the present law the only such offence is murder. The main reason for this conclusion is the widespread perception, which we share, that murder is not just more serious than other offences but qualitatively different. The effect of this difference is that murder satisfies the test we have proposed for the scope of any new exception, namely whether a manifestly illegitimate acquittal sufficiently damages the reputation of the criminal justice system so as to justify overriding the rule against double jeopardy".
Those are the Law Commission's views. We do not think that the Government should go beyond them, if the rule is to be breached at all. Consequently, our amendments are limited to murder, soliciting murder—conspiring in soliciting murder—and genocide; that is, murder on a large scale.
I am very glad that my noble friend Lord Thomas has tabled Amendment No. 135ZA. The great danger with any provision of this sort—any relaxation of the rule—is that one creates an opportunity for vendetta. The use of the law as a vendetta in many societies in this century and others has not been unknown. It can be a very formidable form of vendetta. For that reason, I am surprised that the Government have decided to include an offence such as rape on their list of offences that may be tried a second time.
My noble friend's amendment at least has the advantage of introducing certainty and excluding, with the exception of murder, those elements that are most liable to give rise to vendettas. That is a very sensible precaution.
I indicated earlier that I wanted to listen carefully to what was said in this part of the debate, so I am grateful to those who have spoken—albeit briefly, but I know from the previous longer discussion what lies behind many of the points made.
It is necessary to bear in mind—if I may respectfully say so, the observations of the noble Lord, Lord Thomas, do not—that the Government received advice not just from the Law Commission but from Lord Justice Auld, who has also dealt with the issue. He recommended that the provision go beyond that suggested by the Law Commission to cover all offences that carry a maximum penalty of life imprisonment. That is helpful advice, but, with respect to Lord Justice Auld, there is a difficulty with it in that all common law offences carry a maximum sentence of life imprisonment. It seemed to the Government that more certainty was necessary. We have therefore sought to identify offences considered to have a particularly serious impact on the victim, their family or on society more widely, which, for the most part, carry a maximum penalty of life imprisonment.
I respectfully differ from the noble Earl, Lord Russell, in considering the importance of including rape, for example. One can imagine cases—sadly, we have had some—where individuals have carried out campaigns of rape against women in one part of the country or throughout it. I would not regard such cases as a vendetta. I agree entirely that the law should not be used as a means of a vendetta. If we are to extend the principle of being able to come back on cases, as we believe we should, those cases should be included also.
Other offences fall within the list. However, as my honourable friend Hilary Benn said in another place, where you draw the line is a matter of judgment. The noble Baroness, Lady Anelay, specifically asked my view in relation to manslaughter. The Government's view is that manslaughter should appear on the list. Indeed, there may even be difficulties in not having it appear. For example, there could be sufficient evidence and a compelling case to retry a person for murder who had previously said that he was not at the scene at all. When that case comes before the court, although it seems clear that the defendant was the person who killed, for the first time, the question might arise whether that person should be convicted of manslaughter on the grounds of diminished responsibility. I am not sure that I am right about that, but it needs further consideration. Manslaughter can be a very serious crime if the circumstances have been demonstrated to make it out in the way proposed.
I recognise that a matter of judgment is involved. Although the Government's schedule has been drawn up in the belief that it covers the right offences, recognising that an offence is on the list does not mean that all the cases that fall into that category will be sent to the Court of Appeal—far from it. I would like to consider what has been said today and return to the matter on a future occasion.
My response will be brief after that generous offer from the noble and learned Lord. This is a key issue with regard to the safeguards that should hedge around double jeopardy, so I am grateful to him for his offer to consider the matter again. We will, I am sure, meet the noble Lord, Lord Thomas of Gresford, between now and Report to consider the position further.
In the view of responses earlier from the Minister and amendments tabled by the noble Lord, Lord Thomas of Gresford, it is not appropriate for me to move Amendment No. 135A. That will disappear. I beg leave to withdraw the amendment.
The amendment poses a question with regard to the new and compelling evidence that, as defined in the Bill, would enable the relaxation of the rule of double jeopardy to take place and for a retrial to occur. It would appear from the drafting of the clause that the new and compelling evidence is evidence that was available at the time of the original trial, but was simply not adduced at that trial. It may have been in the hands of the prosecution or, potentially, in the hands of the police but not the prosecution. It may have been in existence, but due to an inadequate investigation—not only through someone's fault—it was not available at the time of that first trial.
The question that goes to the heart of the matter is what would happen if the prosecution had the evidence and, for whatever reason, chose not to use it? Should it then be used to trigger a retrial? The prosecution may not have realised the significance of the evidence, or they may have decided that, although it should be significant, it would not, at that time, come up to proof; and, therefore, did not use it.
At this stage of the Bill's progress and given the time of day and the impending Recess, I move the amendment as a probing amendment to ask the Government to develop further their argument for why they have come up with this definition, instead of the original definition, which was intended to be a matter of new scientific evidence. The case has been made by many bodies that there should be a reasonableness test and that evidence should be brought forward only if it was not reasonably available at the time of the first trial. Other noble Lords have already said today that they might prefer it if it were the case that evidence should be adduced only if it had come to light subsequently and was not in anybody's hands at the time of the original trial.
This is an attempt to probe the Government on why they are going down that route. What evidence have they to show that that is the proper way forward? I beg to move.
If it does not cause difficulty to the noble and learned Lord the Attorney-General, I shall speak to Amendment No. 135BA, which is on the same topic, although it is not grouped with the noble Baroness's amendment.
In Clause 73(2)(c), the question,
"whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition" is set out as merely something that goes to the discretion of the Court of Appeal, when it is considering whether it is in the interests of justice. It should not be one factor among others. The Court of Appeal should not be able to say, "There are other matters that allow us to ignore that aspect of the case. Although it was discoverable on an earlier occasion, in our discretion, we will order a fresh trial".
It is more important that the evidence that was discoverable by "reasonable and diligent inquiry", in the terms of my amendment, should not be the "new and compelling evidence" referred to in Clause 72. My amendment would make it an absolute condition that the Court of Appeal could not order a new trial on the basis of evidence in respect of which the police investigation had been a failure or had been inadequate. I shall move that amendment in due course.
In the case of new evidence as regards the defence and their subsequent application for a retrial, I have always understood that such evidence was not available to the defence to be adduced at the time of the trial. This definition of "new" goes far wider than that. I had assumed that, by "new evidence", the Government meant evidence that had since become available but was not available to the prosecution at that time. I hope that the noble and learned Lord the Attorney-General will reconsider the definition of "new evidence". It appears to cover anything that the prosecution do not choose to use at the time.
I support my noble friend's amendment. I mentioned just now the danger that the provision would be used for vendetta. One of the cases that I have in mind concerned a young man who was a member of my seminar. He had been accused of murder, tried and acquitted. I may add that the young man came from West Belfast. The murder was the murder of a policeman. The police clearly were firmly of the opinion that the person was guilty. At every possible opportunity, for years afterwards, they used to arrest him for anything that they could possibly throw at him.
Policemen who believe firmly in someone's guilt of murdering another policeman very naturally tend to feel rather strongly about it. If those police had had the opportunity—believing, as I understand they did, firmly in the young man's guilt—simply to go through their files, dig up anything they found and persuade someone that this was reasonable and compelling—many of the safeguards are ones that cannot really adequately be established before cross-examination—I am convinced that that would have happened. I am not convinced that this sort of repeated return to something is in the interests of justice. I am not persuaded that this repeated trawling of police files is in the interests of justice. I think the requirement that it should be new evidence is a sensible requirement and would help to keep the scope of these provisions within boundaries. I hope that the noble and learned Lord will look on this with some favour.
I hope that the noble and learned Lord the Attorney-General will have deduced from what I said when I spoke before that I think this definition of new evidence is inadequate. It is a lower test than is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement here. I do not have a very strong view as to which of the two propositions should be accepted—namely, that of the noble Baroness, Lady Anelay, or that of the noble Lord, Lord Thomas. But it is something that needs to be looked at. If there is to be new evidence, the definition must be tightened up.
Clause 72 requires that,
"there is new and compelling evidence against the acquitted person in relation to the qualifying offence".
It defines evidence which is to be regarded as "new and compelling" for the purposes of this part of the Bill. The definition of new evidence, as it stands in the Bill, is straightforward, factual and objective. Clause 72(2) states that,
"Evidence is new if it was not adduced", at the original trial. I emphasise that that is a threshold test. The Bill provides further safeguards by requiring the court to consider whether the evidence is compelling, as set out in Clause 72, and whether it would be in the interests of justice for a retrial to be ordered, in Clause 73.
It is important to note that Clause 73 provides the significant safeguard at which, fundamentally, both amendments are aimed. It is for the Court of Appeal to decide whether the interests of justice are such that the order for a retrial should be made. In reaching that view as to the interests of justice, the Court of Appeal is required to take into account whether there was any lack of due diligence or expedition on the part of the police or prosecution, either in their original proceedings or in the new proceedings. I draw attention in particular to Clause 73(2)(c) and (d), which will specifically guard against the criticism that a poor police investigation can simply lead to a "second bite of the cherry". It is in no one's interest that that should happen. It is clearly in everyone's interest that the police investigation and the prosecution should be put on the best basis possible at the time of the first trial. Given that this part of the Bill provides only a limited exception, there is no incentive for the police or the prosecution not to do that.
The Government believe that the best way of achieving the protection is as has been set out in Clause 73 rather than in the way set out in the amendments proposed by the noble Baroness, Lady Anelay, and the noble Lord, Lord Thomas of Gresford.
Would the noble and learned Lord be good enough to consider this question? Turning first to Clause 73(2)(c), all it requires is that the court should have regard to such new evidence. It does not say that it would be a knock-out blow either way. It simply provides that having regard to it should be one of the factors in answering the question in subsection (1):
"if in all the circumstances it is in the interests of justice . . . to make the order".
The noble and learned Lord appears to be arguing that if it is a case where there has been negligence in the past resulting in the evidence not being adduced, that by itself would lead to a new prosecution. Is that the case? I am not sure. It is simply one matter to which the court must have regard.
Indeed it is a matter to which the court is required to have regard. Reverting to our previous discussions, I do not doubt that the court would look very hard indeed at that particular matter.
Does the noble and learned Lord agree with the view once expressed in this Chamber by the noble and learned Lord, Lord Simon of Glaisdale, that the words "have regard to" mean almost exactly nothing?
I am not aware of the occasion on which the noble and learned Lord, Lord Simon of Glaisdale, made that remark. I have enormous respect for him, not least because he is also a former Law Officer; indeed, the oldest surviving former Law Officer since the sad demise of Lord Shawcross. I do not know the context in which he said it and I certainly would assert that it is significant, important and of the greatest moment that Clause 73(2) requires the court to have regard, in considering the interests of justice, to a number of specific matters.
I have no doubt that the Court of Appeal—in which I have great confidence, as do all noble Lords—will consider this properly and take it into account. I do not accept that it would need always and in every case to be a knock-out blow, but that would be for the Court of Appeal to determine. Ultimately the Court of Appeal will be concerned with what is required in the interests of justice. Those interests of justice certainly will require a consideration of the position of the defendant and whether on the first occasion the trial ought to have been dealt with in a different way, but that may not be the only consideration to which the Court of Appeal will have regard. However, that is for the court to decide.
The noble Lord, Lord Carlisle of Bucklow, suggested that at this stage I should deal with the point that this is a more generous test than that applied to the defence. With respect, I do not believe that that is right. The defence will be able to appeal. For example, the Criminal Complaints Review Commission may bring before the Court of Appeal new evidence which could have been adduced before, but which had not been. Indeed, that is a circumstance in which matters are brought back to the Court of Appeal and it would be surprising if it were not. It would be very surprising if the law stated that where a miscarriage of justice had taken place because of the incompetence of the lawyers acting for the defendant, there was no means by which that could be corrected by the Court of Appeal.
I think that the noble Lord might have had in mind the principle which applies in civil cases, but which is an entirely different circumstance. So this is not more generous to the prosecution; quite the reverse, it remains a much narrower test.
However, I sought to suggest that there are three objections to the proposed amendment. First, it would give rise inevitably to extensive legal debate about whether any particular piece of evidence could or should have been produced by the police at an earlier stage. Secondly, it would replace an objective threshold test with a more subjective one, which might result in the exclusion of evidence which had not previously been put before the court, but which might otherwise be regarded as compelling.
Thirdly, it is right that the Court of Appeal should consider the nature of any evidence which has not previously been adduced, but which might be compelling in terms of the case against the acquitted person, and reach a decision about whether it is in the interests of justice and the interests of the whole community, for a retrial to proceed, taking all the relevant factors into account.
The right way of providing an appropriate safeguard against those who are looking for a second bite of the cherry is to include this important requirement in Clause 73. That is the answer both to the amendment of the noble Baroness and to the amendment of the noble Lord, Lord Thomas.
I am not troubled that there is a very strict test about what is compelling or that there is a very strict burden on the Court of Appeal under Clause 73. However, if we are trying to tighten up the matter, I wonder whether this really is new. If it is not new, we have a very loose and slack test.
The difficulty with the Bill as it stands is that there is nothing to suggest that this really is new—it has just not been adduced before. Although the failure to adduce it may not be due to incompetence, the fact is that it has not been adduced. I would be much happier about the whole of Part 10 if "new" meant new.
I am grateful to the noble Viscount, Lord Colville, for his support of the principle behind my amendment. If one stands in the Court of Appeal on behalf of an appellant who has been convicted and produces evidence which was available to the defence at the time of trial, one will get absolutely nowhere. I do not see why the prosecution should be in a better position.
I heard what the Attorney-General said about bringing back a case years later, but that is a very different proposition and it is not easy to get over the threshold involved. The appeals of right following a conviction do not permit one to introduce evidence which is not new. It seems to me that the Government must accept something along the lines of these proposed amendments.
I am grateful to all noble Lords who have taken part in this debate on what is a core issue as regards the safeguards that one hopes will operate to ensure that, where the double jeopardy rule is relaxed, it is done in a proper manner.
We are seeking to ensure that a reasonableness test is hedged around the production of new evidence. I take the point of the noble Viscount, Lord Bledisloe, with regard to—I have said it again. I apologise to the noble Viscount, Lord Colville of Culross. I called him by the same wrong name on a previous Bill. One day I shall get it right.
I take the point of the noble Viscount, Lord Colville of Culross, about how new is "new". I recall that when I had insurance on a computer it was on the basis that if anything went wrong and it was not capable of being repaired one could have a new part. When the monitor failed and could not be repaired, it turned out that the insurance company defined "new" as something that was new to me—in other words, renovated and not new. The noble Viscount hit the nail very firmly on the head: what indeed is to be "compelling new evidence".
I am grateful for the way in which the noble and learned Lord has put the Government's case. They consider that the reasonableness test for new and compelling evidence comes within the wider remit of the Court of Appeal decision on the interests of justice in Clause 73(2)(c).
I shall certainly consider that matter further. It may be that the noble and learned Lord has satisfied me about it. I should like to discuss it further with him during the summer. I may not need to come back to it on Report, but I shall have to consider the matter carefully. My objective is exactly the same as the Government's in this respect. I want to ensure that there can be no excuse for sloppy investigations by either the police or, subsequently, by the prosecutor which would mean that there could be a greater opportunity for retrial than is strictly necessary. As our objectives are clearly the same, this is one of the provisions on which we should be able to come to an agreement rather than having difficulty with it on Report. In that spirit, I beg leave to withdraw the amendment.
This amendment is simply designed to obtain an explanation from the Government as to what this provision means. I do not understand the purpose of it, and I really cannot have any attitude to whether I want to see it in the Bill until I understand it. I beg to move.
This provision states, in effect, that previous admissibility is not relevant to the new evidence. In answer to the question of the noble Lord, Lord Thomas of Gresford, it is to ensure that any new evidence is assessed in accordance with current rules and standards of evidence and that in any potential retrial, those standards and rules of evidence would apply. Evidence which is otherwise new and compelling would not be excluded from consideration of the court solely because it would not have been admissible at some previous date. That does not of course mean that the overriding interests of justice test disappears—that is still for the Court of Appeal to determine. That is the answer to the question as the noble Lord asked for it.
It is relevant to this because a later part of the Bill changes all the rules about admissibility. So I assume that the Government's intention is to allow a second trial to take place in which evidence that would previously have been ruled out is now made admissible under this legislation. That is a fairly incestuous situation. It may be part of the design of the Bill, but it seems that it takes two bites of the cherry—what was available before is not new in the sense that I have described in that it was there but it was not admissible under the then rules. It now becomes new, it would appear, because the rules have been changed.
I now understand what that clause is about—not, I regret to say, as a result of anything the noble and learned Lord the Attorney-General said but because of what the noble Viscount, Lord Colville, said a moment ago.
There seems to be a "not" missing from the provision—it is probably a misprint. The provision might make sense if it said, "For the purposes of this section, it is irrelevant whether any evidence would not have been admissible in earlier proceedings against the acquitted person and is now admissible because of the provisions of this Bill". I ask the noble and learned Lord the Attorney-General to consider whether there is an omission in the provision.
I do not think there is. To say it is irrelevant whether any evidence would have been admissible is exactly the same as to say it is irrelevant whether any evidence would not have been admissible.
In moving Amendment No. 135C, I will, with the leave of the Committee, speak also to Amendment No. 135D. These are probing amendments which relate to the requirement under Clause 73 that the Court of Appeal must decide that,
"it is in the interests of justice" to have a second trial.
As we have already debated in part previously, Clause 73(2) lists a number of criteria to which the court must have regard when considering this issue. The first is whether existing circumstances make a fair trial likely. The amendments are alternatives to the Government's drafting, and would change that phrase. Amendment No. 135C would change it to whether,
"the circumstances existing at the time the court is considering the application", make a fair trial likely. Amendment No. 135D would change it to whether the existing circumstances,
"and the circumstances that appear to the court to be likely to exist at the time of the retrial", make a fair trial likely.
Veterans of the Courts Bill will recall the debate earlier this year when one noble Lord expressed dissatisfaction with the use of the word "current" in a series of amendments that I tabled. I am delighted to see that the noble Lord who objected—in the most courteous way, as he always does—is here in his place today. That is the noble Lord, Lord Clinton-Davis. He rightly pulled me up on the use of the word "current" because, as he said, "Current, when?"
The same arguments could be advanced about the use of the word "existing", without further explanation. I have therefore tabled the amendments to clarify that what the Government intend is what is stated in Amendment No. 135C—that in deciding whether or not there can be a fair retrial, the Court of Appeal should consider only the circumstances existing at the time the application for a retrial is made, and not the circumstances that may, or may not, actually come to exist by the time the retrial takes place. No doubt, if that is what the Government intend, the Minister will say that it would be wrong for the Court of Appeal to engage in speculation on what such circumstances might or might not be. There may well be force in that argument. However, that brings me to my next question.
Will the Minister clarify whether the trial judge at the retrial will retain his or her powers to halt the retrial on the grounds that there could not be a fair trial—perhaps because of something that had happened in the intervening period between the Court of Appeal considering the application for a retrial and the retrial taking place? According to Clause 77(2), that period could be as much as two months after the application is made, or even longer if leave is given in exceptional circumstances. I see problems in that.
If the trial judge has the power to halt the retrial on the grounds that a fair trial could not be held, will the judge be able to take a different view from that of the Court of Appeal, even if no new issues have arisen between the Court of Appeal hearing and the retrial? On the other hand, will the trial judge be bound to some extent by the Court of Appeal's consideration of whether a fair trial could be held? I suspect, as there is nothing in the Bill to fetter what would ordinarily be a matter for the trial judge's discretion, that the judge will not be so bound, but I would welcome clarification of the point, which is especially important in the context of any potentially prejudicial publicity between the Court of Appeal hearing and the retrial itself. I beg to move.
The noble Baroness finished her speech by referring to the risk of prejudicial material being published between the decision of the Court of Appeal and the time of the trial. She is right to raise the issue, which the Government have already considered. It is an important point, which is why later clauses, particularly Clause 76, provide for important reporting restrictions that the Court of Appeal can impose.
Amendment No. 135C would turn the words "existing circumstances" into,
"the circumstances existing at the time the court is considering the application".
I am not entirely sure whether it is intended to read the two amendments together. Perhaps because I was not party to the debates over the meaning of the word "current", I do not see the difference between saying, as the clause does, that the court must have regard to,
"whether existing circumstances make a fair trial unlikely", and saying whether,
"the circumstances existing at the time the court is considering the application", make a fair trial unlikely. I am not sure that I see the difference at the moment. It may be that what the noble Baroness has in mind is that one should consider the two matters together so as to indicate that the court must also have regard to the future. She was right to anticipate that we would be concerned about imposing too great an obligation on the Court of Appeal to speculate as to what the position may be. But, having said that, in deciding whether existing circumstances make a fair trial unlikely, I would expect that the Court of Appeal would have regard to what the previous publicity, and the publicity at that date, had been by way of example.
In deciding at this time whether a fair trial would be unlikely, there is a degree of speculation inevitably involved in what the Court of Appeal is doing in the sense that it is saying today, "Do we think a fair trial tomorrow would be unlikely?" But we would be against imposing this duty of speculation in the way that the noble Baroness proposes.
Does it make the distinction the noble Baroness is trying to make if a large body of material is in the hands of a newspaper and one has good reason to believe that the newspaper intends to publish that material as soon as the case comes to court, but not if it does not? Is that in fact a clear distinction between the two amendments?
The noble Earl may be right. That may be what the noble Baroness has in mind. Obviously she must speak for herself on that; I cannot.
I must respond to the specific questions that the noble Baroness asked me. She asked me whether the trial court would retain the ability to consider whether a fair trial was possible, having regard to events which had occurred between the hearing in the Court of Appeal and the trial. Save to the extent that those had already been taken into account by the Court of Appeal, there is nothing in the Bill, as the noble Baroness says, to say that the retrial court does not retain its usual discretion to decide that a fair trial is not possible. Therefore, subsequent events would be, it seems to me, open to the subsequent court to consider.
The noble Baroness asked whether the second court could reach a different view on the same material from the view that the Court of Appeal had reached. I believe that the answer to that is no because once the Court of Appeal had reached a considered view that a fair trial was likely, notwithstanding things that had happened before, it would not be appropriate for the second court to reach a different view. Whether that is a matter of judicial self-restraint or whether it is implicit in the Act, I would need to consider, but I have done my best to answer the question.
I apologise for my momentary inattentiveness when the noble and learned Lord was trying to give me what was, indeed, a very helpful answer. However, I was being sounded out whether this was the appropriate time for proceedings to finish. As the noble and learned Lord might expect, I was rather relieved to find that the Government agreed that it was.
We believe that we have another five minutes. Perhaps we can deal with the next amendment, which does not look very long.
This is another probing amendment. It relates to the service by the prosecution on the acquitted person of the notice of application to the Court of Appeal for a retrial. Clause 74(2) provides that the service must be effected within two days of the application being made. My amendment would simply require the service to be in person. I would welcome the Minister's comments on the circumstances in which service would normally be effected. I do not need to go into details of the problems about service, because the noble and learned Lord and I have had discussions on the matter on the Crime (International Co-operation) Bill. I would be grateful if he could explain what the implications would be here.
The service of such an application will inevitably be a testing experience for the recipient who, in these circumstances, should not be expecting it. Having been acquitted, they are hardly now likely to find the tap on the shoulder. Will the notice contain details about how the person can obtain legal advice? Will such a person be entitled to free legal assistance for the purposes of the application itself? Do the Government intend to specify a standard form of notice, or will its contents be left to the discretion of the prosecutor? I beg to move.
The amendment appears to require the prosecutor to serve in person on the suspect the notice of an application of the Court of Appeal to quash a suspect's acquittal. We do not see the need for that at all. We do not see the reasoning behind having a crown prosecutor in person serving a notice of application on the suspect. Of course, proper arrangements will be made by the courts for the service of such notices, but there is no need in our view to insert this provision into the Bill.
As the noble and learned Lord implied, it is not my intention that prosecutors should have in addition to their ordinarily busy lives the job of making the service. The amendment was to probe what the process will be for service. I will consider it further before Report. However, we are going into new realms, where service may occur many years after the original acquittal, so there could be some problems with regard to process in this case. I beg leave to withdraw the amendment.