Criminal Justice Bill

Part of the debate – in the House of Lords at 6:00 pm on 30th October 2003.

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Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench 6:00 pm, 30th October 2003

My Lords, that is a popular misconception which I have tried on various occasions to correct—but without the slightest success.

Supporters of the amendment have said that we should take account of the views of victims. We certainly should treat victims with understanding, but I cannot believe that it is right that laws should be framed on the basis of giving victims satisfaction. That is not least because every victim, if almost anybody is charged, assumes with an utter conviction that that person is guilty. If he is acquitted the victim thinks that there has been a miscarriage of justice. But the real touchstone is whether there has been a miscarriage of justice. I have been involved in a couple of cases which have been described as classic miscarriages of justice. I say nothing about them—although I am tempted.

However, I have said publicly that there are far more miscarriages of justice on the basis of wrongful acquittals than there are miscarriages of justice by wrongful convictions. I take account of the fact that the law is loaded to produce acquittals if there is any doubt. But we are considering cases of wrongful acquittals which can be demonstrated to be such. Against the principle of autrefois acquit we have a series of clauses, two of which matter. One is that one has to obtain the consent of the Director of Public Prosecutions before one can start on this road. The second is that one has to obtain the determination of the Court of Appeal in support of the DPP's view. Thirdly—what really matters—is Clause 64, which requires both the DPP and the Court of Appeal to look at the interests of justice.

That clause is worth looking at because subsection (2) says that the matter has to be determined in the light of:

"whether existing circumstances make a fair trial unlikely".

An earlier intervention referred to the extent to which the media will hound people. We know that they will. I shall not name certain cases, but we all know cases in which the media, if they had the slightest chance, would require and demand a retrial of those people who have been acquitted. We know also that they would point out that out of a group of people, some were acquitted and some were never charged. The media will say that that creates a problem.

The court would be bound to refuse leave if a fair trial was unlikely, owing particularly to the activities of the media—or for any other reason. Clause 64(2(b) provides:

"for the purposes of that question and otherwise the length of time since the qualifying offence was allegedly committed".

That is crucial. Let us say a person has committed, or is said to have committed, a crime 20 years ago—for instance when he was not a teenager but a youngster. If 20 years later it emerges that he was guilty, it would be wrong that he should be prosecuted again. That is one of the exceptions set out in the clause:

"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".

That describes cases in which it is said that the police, having investigated a case without due diligence or a sense of urgency, want a second go. They could not do that—unless the Court of Appeal takes leave of its senses, which is not an eventuality that I can personally admit—because the clause stipulates that leave could not be given in those circumstances.

A further exception is to be found in subsection (2)(d) of the clause; namely,

"whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition"— in other words, having found compelling DNA evidence, they cannot just sit on it and wait until it is convenient to them to apply for a further prosecution.

I would hope and expect that if the amendment does not succeed—I am sure that it will—the number of retrospective cases in which this will be brought forward will be extremely few. If I were in the position of the noble and learned Lord the Attorney-General I would start by thinking of the cases which exist but which one could probably count on the fingers of one hand, of someone who, having committed a serious offence, then proceeds to proclaim the fact that he has. That seems to me to be an affront to the whole system of justice. Certainly, there should be the possibility of recharging him.

As regards retrospectivity, I would then move on, but with very slow steps, to the DNA cases. The DNA cases pose a difficult problem. Unlike most other later discovered evidence, the DNA cases can be conclusive or virtually conclusive. Certainly I would want to look at that, but with care. Beyond that I do not think I can go and I do not believe that the noble and learned Lord the Attorney-General would go any further, although he obviously cannot be expected to give an undertaking to that effect. If he did, I do not think that the Court of Appeal would let him get very far. For those reasons, I have real doubts about the validity of the amendment, despite its provenance.