My Lords, I am very sorry to depart from the opinion of my noble friend Lady Gibson of Market Rasen on this occasion, but the argument about public confidence can be woefully overdone. After all, public confidence would be immeasurably in favour of restoring the death penalty, even today. That would be a grotesque error. Public confidence is important, but it should not be overdone. The Government, whom I generally support, have overdone the principle of public confidence on this occasion.
On questions of crime and punishment, it is generally wise to support those who have some experience. The public do not have that, by and large. Therefore, there is some inconsistency. My noble friend would be the first to support the view that I have advanced that capital punishment is and should be unattainable. She nods her head. That is the view of the Government as well, but is there not some inconsistency between the measure and what I have talked about?
My second point is on harassment. It will be very dangerous to have a second trial where the person charged and acquitted in the first will be harassed, as undoubtedly in some instances they will be. It is not part of my case that harassment will be present in every instance, but it will be present on some occasions. It is immeasurably dangerous that that situation should prevail.
I have been a solicitor for quite a long time—about 50 years. Part of that time, I was involved as an advocate—a rather successful one—mostly around the London courts. I never thought about the guilt or innocence of the people whom I was defending, as I am sure is the view of all lawyers. But I believe that if this provision is incorporated in the law, inevitably there will be a danger that lawyers will think about that. Even if I am wrong and that argument can be dismissed, any question of a campaign against a minority of people is unthinkable.
Therefore, I believe that a second trial would be immensely dangerous. It would inevitably become known that the defendant had been before the Court of Appeal and the Criminal Division of that court had said that there was something wrong with that person and that there should be another trial. I find it unthinkable even to contemplate that possibility.
My last point is that I believe that the clause as presently drawn will encourage sloppy and undesirable policing. The police will undoubtedly be encouraged by the fact that there is a possibility of a second trial. Although, again, I believe that only in a minority of cases will the police behave in the way that I have indicated, so far as I am concerned even a minority of cases is unacceptable. Therefore, rather reluctantly, because I am always reluctant if there is an occasion when I have to vote against my Government—the Government whom I generally support—I shall vote against them on this occasion whether we lose or win the vote.