My Lords, the noble Baroness, Lady Anelay, has rightly reminded us that on Report we should not repeat arguments fully deployed in Committee. One was privileged to participate in the debate in Committee, which involved many noble Lords from the law—including former judges—those from the Church and others with experience.
The noble Baroness, Lady Anelay, is right to say that there are strong and sincerely held views on the principle of double jeopardy. The Government have made clear their determination to change the rule relating to double jeopardy and have the support of the Law Commission, Lord Justice Auld and the Home Affairs Select Committee, to which the noble Lord, Lord Corbett of Castle Vale, has referred. All of them agreed with the principle of change.
I remind myself that the amendment relates not to the principle but to this: if there is to be such a change, should it be something that can relate back or that can only relate forward? Despite the eloquence of those such as the noble and learned Lord, Lord Lloyd of Berwick, who oppose what is described as retrospectivity, the Government do not accept the amendment and the removal of the clause. It would simply provide an arbitrary cut-off point before which cases could not be brought to justice.
There were powerful speeches today. I single out, in particular, the contributions of my noble friends Lady Whitaker and Lord Corbett, who talked about justice, as did the noble and learned Lord, Lord Donaldson.
In the Government's view, and in my view, disallowing a retrial in serious cases when there is compelling new evidence, such as DNA or even a confession, which indicates that an acquitted person is in fact guilty of a serious crime committed some years ago, is illogical and unjust. It would be an affront to justice.
As my noble friend Lord Corbett said, retrospective application of these changes was supported by the Home Affairs Committee and the Law Commission. That gives me the opportunity to deal with an important point raised by the noble Viscount, Lord Colville, about Article 7 of the European Convention on Human Rights. Unhesitatingly, I say that there will be no contravention of Article 7 of the convention if this subsection remains.
That was the view of the Law Commission. I have here the report produced by the Law Commission, which, as noble Lords will know, was chaired by a High Court judge at that time, the honourable Mr Justice Carnwath, with distinguished academics. They looked carefully at the issue. Having said that in policy terms they thought that the arguments in favour of giving the exception retrospective effect were powerful, they went on specifically to deal with Article 7.
I shall touch on that issue for the benefit of those noble Lords who raised it, including my noble friend Lord Clinton-Davies. Article 7 prohibits the creation of retrospective offences by legislation—the principal purpose—or to change the penalty. But it does not prevent retrospective changes in the rules of criminal procedure so as to remove a bar or obstacle to a prosecution. That is clear from European jurisprudence. It is set out clearly in the report of the Law Commission, which was very clearly of the view that it did not contravene Article 7.
There is no question of creating a new offence. We are talking about prosecuting someone for something which was an offence at the time, such as murder. We are not suggesting that they should be subject to a different penalty from the penalty to which they would have been subject at the time. It is the question of a procedural bar which exists at the moment. Removing that is not a breach.