Criminal Justice Bill

Part of the debate – in the House of Lords at 6:45 pm on 30th October 2003.

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Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench 6:45 pm, 30th October 2003

My Lords, I support this group of amendments. We are told that it is procedurally necessary to move a raft of amendments to achieve one simple aim: to scrap Part 9. Apparently it is impossible simply to have a part omitted; hence this long string of amendments, but they are all directed to sweeping away every provision in the Bill that would alter the double jeopardy rule. All the arguments have been rehearsed, so I shall be brief.

Double jeopardy is an ancient principle. It is one of the big principles of English criminal law, as is the presumption of innocence. It is as deeply embedded as that. It is founded on the principle that guilty people will be acquitted, but that it is better to have such a principle than to run the risk that people who have been acquitted can be tried again in any circumstances.

We are here faced with a partial erosion of that great and ancient principle. It is partial because, as I read it—I shall be put right if I am wrong—it is directed to crimes of violence. No crimes of fraud—however grave; however grievous the consequences; however many people are ruined and made bankrupt—nor crimes of blackmail leading people to suicide, matter. The provision applies only to crimes of violence. By saying that, you see at once that it is a populist measure. It is being introduced because some murderer has been acquitted and has thereafter boasted of what he has done. It is limited, in the hope of making it more palatable, but it is unprincipled, being partial.

It is the destruction of an ancient principle. Finality is a great, desirable end. We must recognise that for these specified Schedule 4 crimes, every acquittal from now on is provisional. In fact, as a result of the last vote on the amendment of my noble and learned friend, Lord Lloyd, not only will acquittals be provisional in the future, but every past acquittal is provisional and can be reopened. That will come as quite a shock to people.

When the prosecution decides that it will institute this procedure, it applies to the court for an order, part one of which is that the original acquittal be quashed. Then a notice of that application is served on the happily acquitted man, accompanied by a piece of paper charging him with the original offence. Imagine that if you have been acquitted in a long and horrendous murder trial—let us assume, for once, that the accused is innocent. Years later, a charge is delivered and served on you saying that you are now being prosecuted for the murder of which you were formerly acquitted.

If we take this step we are moving out of line with other great common law jurisdictions, including Australia and the United States of America. So far as the parties to the European Convention on Human Rights are concerned, there is a protocol which permits a derogation from the general principle of no derogation from the double jeopardy rule. You can sign up to a protocol saying that it is the intention of your state to make a derogation. Let me outline my understanding—again, I will be corrected. I see the Attorney-General shaking his head. We have had many encounters in the past, in courts and elsewhere, and when he shakes his head it is something to tremble at. My understanding is that only in the case of Finland has such a signature to a protocol been made.

I drew attention at Second Reading to the point that the definition of new evidence is so extraordinary that it covers old evidence—evidence that could have been in existence long before. To make such a measure palatable it has to be made attractive by saying: let us suppose new DNA evidence comes to light. But the clause is not drafted in that way, as we will hear in another amendment dealing with this point.

New evidence is not confined to new scientific evidence. It will cover the case of a prosecution witness who was available to be called on the first trial—witness number three, say, who was an eye witness to the offence—but who was still in a state of trauma. The prosecution decides not to call that witness, because something might go wrong on cross-examination. Under this definition of new evidence, that witness could be called; there would be a retrial, the only difference being that the third witness is now called in addition to the other two. There could be a replay of the old trial, plus an extra witness. This is a very undesirable development in the law.

I drew attention last time to the likely consequences. When speaking a little while ago, I referred to campaigns against a man who has been acquitted. I have some little experience; as I mentioned then, I was, once upon a time, chairman of the old Press Council. We dealt with the moors murderers and other insalubrious cases. It is easy to foresee that media campaigns will be whipped up against a person who has allegedly committed some vile rape, murder or serial murders. We have seen examples of that. One has only to watch television for a week to see some investigation of either an alleged crime—or a past acquittal, as it will now be. A frightening and alarming future faces us.

I do not want to trespass on another point, but I made it earlier. There are provisions for the Court of Appeal to say that, when an application has been made for a retrial and has succeeded, it is not to be reported in any form of publication, even by word of mouth, to the public at large or to a section of public. The provisions say that it can be blanketed out—but in the real world, if there has been a campaign, everybody will know perfectly well that the campaign has succeeded and, hooray, there is going to be a second trial. That will lead to highly undesirable consequences, given the media world in which we live, which reinforces why the old principle was so good. There would be occasions when an acquittal was not justified, but that was preferable to the system now being recommended by the Government.