My Lords, I rise wearing my historian's hat. Although it is a private hat, I have not forgotten that I am a Liberal Democrat. Listening to this amendment I recall a particular member of my post-graduate seminar who happened to be a historian of the law. His specialist interest was in the Yorkshire assizes of the 1640s. He was a scholar of very considerable promise and, so far as I could judge, a nice, warm-hearted and generous man. He also happened to be an Irish republican brought up in west Belfast. At the age of 18 he had been tried for the murder of a policeman and was acquitted.
As the release of Mr Silcott has recently reminded us, the police tend to have very strong feelings about the murder of policemen. It is quite right that they should and I am glad that they do. However, it is the basic principle of the law that having strong feelings about something is not a substitute for a legal verdict.
That man found that whenever any petty misdemeanour happened anywhere in his neighbourhood the first thing the police did was question him. I am not particularly surprised by that; he was not particularly surprised by it. He was not even—which does him credit—particularly annoyed by it. He thought that it was what he might have done in their position and was prepared to be sympathetic. But imagine that man's position were this Bill to become law. He would never be safe at all, and he was doing his level best to live as an honest, hardworking, careful historian who quoted his evidence accurately. The point about the uncertainty hanging over people cannot be better made than it is made by that case.
The noble and learned Lord the Attorney-General talked of people who had bragged of having committed murder. I agree that that causes offence but I ask the noble and learned Lord whether he believes that everyone who brags of it has committed a crime? Take the 17th century ranter, Lawrence Clarkson, who bragged of having slept with 365 women. I find the date too coincidental to be entirely credible. Many people have bragged of things and not all of them are guilty of them. It is important that we should not take the bragging alone to be sufficient proof that they have done it; we need evidence.
The noble Baroness, Lady Gibson of Market Rasen, said that the measure undermines certainty. It does, but people being convicted of crimes of which they are not guilty does so, too. You cannot have complete certainty in justice so long as it is administered by human beings. I do not wish it to be otherwise. If, for example, you read Measure for Measure, you see that there is virtue in human imperfection as well as fault. Granted the point of the noble Baroness, Lady Gibson, is correct, our choice is simply, which mistake would we rather make? Are we going to make the mistake of an occasional unjustified acquittal, flourishing like green bay trees as psalmists would have it, or of the occasional unjustified conviction? Like the noble Lord, Lord Judd, I know what my preference is.
I think also that we neglect at our peril the principle of certainty in the common law. When I refer to Chief Justice Coke I do not refer to the noble and learned Lord, Lord Cooke of Thorndon, great though my respect for him is, but to Sir Edward Coke, a 17th-century chief justice. His central maxim was:
"Miserable is the servitude where the law is wandering or uncertain".
If every time that we are acquitted our acquittal is wandering or uncertain, we are giving a very severe blow to the principle of legal certainty. If anything undermines respect for law, that would do it. I am very happy to support the amendment.