Criminal Justice Bill

Part of the debate – in the House of Lords at 5:00 pm on 30th October 2003.

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Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 5:00 pm, 30th October 2003

My Lords, we now come to another important part of the Bill relating to the rule against double jeopardy. The purpose of my amendment is to remove Clause 60(6), which would make Part 9 of the Bill retrospective. The amendment raises a very short point—it is not, happily, a lawyer's point. It involves what is, to my mind, simply a question of elementary justice.

The amendment is independent of the other amendments which will be moved under this part of the Bill. Perhaps more importantly, it is independent of whether one is for or against the rule against double jeopardy.

On the one hand, we heard very powerful speeches in Committee from the noble Lord, Lord Neill of Bladen, and the noble Baroness, Lady Kennedy of The Shaws, in favour of retaining the existing rule against double jeopardy. No doubt we will hear further powerful speeches later on this evening. On the other hand, we heard a powerful speech from the noble Lord, Lord Brennan, against the current rule.

My provisional view is that the Government have made out a case, on balance, for some relaxation of the rule against double jeopardy, but I could still be persuaded the other way. However, the Government have not begun, in my opinion, to make out a case that any change in the law should be made retrospective.

It is a fundamental rule of English law, stated in all the leading textbooks, that statutes should never be given a retrospective effect unless no other construction is possible. The reason for that universal rule—it is not just a rule in England but applies, so far as I know, throughout the common law world—is clear. It is so obviously unjust to take away a man's rights, or to create new liabilities with retrospective effect that Parliament cannot have so intended unless it has specifically said so.

What is true of judges in construing Acts of Parliament must also, I suggest, be true for us when passing Acts of Parliament. We must make sure that in curing injustices, we do not create other injustices. That is what we shall be doing if we allow Clause 60(6) to stand. That is what makes this amendment different from the other amendments and, I suggest, makes it one that ought to be acceptable to all sides of the House—those who approve of the rule against double jeopardy, those who disapprove, and even those, if I may say so, who have done some kind of a deal between the Front Benches regarding the way in which this matter is dealt with. I suggest that the retrospectivity argument overrides all the other arguments in respect of Part 9.

Let me take an example of what I have in mind from another part of the Bill. Clause 265 provides for a minimum sentence of five years for certain firearms offences. Let us suppose that I had committed a firearms offence but had not yet been tried when this Act comes into force. Would anybody argue—would anybody dare argue—that I ought to be subject to the minimum of five years' imprisonment when I committed my offence at a time when there was no such rule? The answer is, of course not. It would be grossly unjust and the Government have not even attempted to make Clause 265 retrospective. If they had, it would not have lasted for half an hour because it would have been plainly contrary to Article 7 of the convention.

What I have said about Clause 265 applies equally to Clause 60. Let us further suppose I had committed some serious offence five years ago. I had a right, under the law, to be tried by judge and jury. I had a right, under the law as it then existed, that, if acquitted, I would never be tried again for that offence. To deprive me of that existing right by changing the law now seems to be a gross injustice.

There is here an important question of principle which arises, I repeat, whether or not we are in favour of Part 9. It arises because of the dislike of this House of retrospective legislation of any kind. It is not confined to retrospective legislation creating a new offence—the rule is far wider than that. But, as I have said, if subsection (6) is allowed to stand, a man who has, in a layman's eyes, been declared innocent by the court and by the jury when he has been acquitted could, as a result of Part 9, be convicted. That seems to me to be the plainest injustice.

Involving as it does a question of principle, I had expected that when the noble and learned Lord the Attorney-General came to reply at Committee stage, he would deal with the point of principle. However, I was disappointed. He did not attempt to answer the question of principle that I have outlined; he gave only an example of someone—a mother, I believe it was—who he said he would not be able to look in the face again if Part 9 were not made retrospective. That prompted the noble Earl, Lord Russell, to ask whether we were not in danger of legislating to meet a particular case. The noble and learned Lord replied that he had more than one case in mind.

The noble Earl, Lord Russell, was absolutely right. I have no doubt that even now the police have a list of those whom they would like to be tried again because they believe that they were wrongly acquitted. I suspect that that list may contain perhaps a dozen names, and I should not be surprised if it were actually in the possession of the Home Office. Of course, I do not forget the victims—we must never forget the victims—but we must remember that those who have committed crimes also have their rights.

By all means let us make Part 9 prospective; that should give the Government all they want. But to include a provision for the purpose of catching men and women on that list of people who have already been acquitted is to my mind profoundly shocking. I beg to move.