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4 Dec 2002 : Column 936—continued

Miss Widdecombe: I am not a moderniser.

Mr. Letwin: I was about to observe that my right hon. Friend is not typically regarded as being on the side of the criminal or uninterested in obtaining justice. She is not perceived as being unconcerned with victims and witnesses. Indeed, a large part of her political career has been devoted to precisely those causes. We do not need to be bullied into accepting provisions that may set dangerous precedents, by accusations that we are lily-livered or on the side of the criminal. We are not. However, in the memorable words of the hon. and learned Member for Medway at Prime Minister's questions today, it is not always necessary in pursuit of apprehending the wicked to sacrifice liberties that are of great value to the nation.

Let us consider double jeopardy. I accept that there is a genuine case for some change in the rules on double jeopardy in some circumstances. I know that some of my hon. Friends and some Labour Members do not accept that. My right hon. Friend the Member for Maidstone and The Weald, who has been a strong proponent of such changes in the past, made the salient point that the definitions of, for example, new evidence, are critical. However, as the hon. Member for Southwark, North and Bermondsey (Simon Hughes), who speaks for the Liberal Democrats, rightly pointed out that, beyond that there is a considerable and justified anxiety that, without great safeguards, the second trial may not start with the presumption of innocence. I accept that there is a certain unfairness in the logic here. It was partly, I suspect, because of pressure from myself and my hon. Friends—and, indeed, from the Liberal Democrats—that the Home Secretary carefully and rightly concocted the clauses in question to provide the safeguard that the Court of Appeal must judge that there is clear and compelling evidence, and that is welcome.

With a certain irony, however, that creates its own problem. If the Court of Appeal has judged that there is clear and compelling evidence, it is difficult to see how that, if it is known to a jury, ceases to be a reason for starting with a presumption of guilt. If I know that the Court of Appeal has ruled that a defendant has against him clear and compelling evidence, how can I start with the presumption that he is innocent? I will go further in my tribute to the Home Secretary and his colleagues, because they have also—again, perhaps as a result of conversations that we have had—taken care, rightly, to build in reporting restrictions.

That is welcome, and it helps to redress the problem. I am not convinced, however, that there are yet complete safeguards. Certainly, the amendment that my right hon. Friend the Member for Maidstone and The Weald suggested in relation to the character of the new evidence required would address the point made by the hon. and learned Member for Medway that we need to be sure that the changes would not induce sloppy policing in the hope of a second trial. I think that there is common ground between us on that subject.

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Beyond that, we shall want to consider carefully in Committee how we can build sufficient safeguards in to the clauses to ensure that there is a presumption of innocence. We may part company at that point from the Liberal Democrats, who may object in principle to double jeopardy. I respect that position, but it is not ours. Ours is a balanced position on double jeopardy. We accept the basis for change, but only if the safeguards can be very robust.

Dr. Desmond Turner (Brighton, Kemptown): Surely the effect on the presumption of innocence if new evidence is declared significant is no different from the presumption of innocence at the beginning of the first trial. The first trial would not have been brought unless the prosecution felt that it had compelling evidence, so I cannot really see the difference.

Mr. Letwin: Seeing the difference depends on the beholder as well as on the thing seen. Let me try to convey to the hon. Gentleman how this looks from my perspective. If I were a juror and I knew that a prosecution barrister, whose job it is to prosecute—guided by the CPS, whose job it is to prepare prosecutions—and the police, whose job it is to get prosecutions to succeed, were all alleging that the defendant was guilty, I would regard that as part of the ordinary course of business. That is, after all, those people's job. I would, I hope, start with the presumption that they were wrong, and try to ensure that they had proved to me beyond all reasonable doubt that they were right.

If, however, there were added to the mixture the observation that the second most senior set of judges in the kingdom had considered the case at great length, in the light of prolonged further investigations, and had already adjudicated that there was clear and compelling evidence, I think that it would be more difficult—although not absolutely impossible—to start with a presumption of innocence. To my mind, therefore, there is a difference between the first trial and the second. In this instance, the balance of doubt—the balance of advantage, so to speak—in the argument ought to lie with my perception rather than with that of the hon. Gentleman. If he is right, there will not be much to worry about if we follow the course that I recommend. If I am right, however, and we do as he recommends, we would have a real problem. The presumption of innocence is the single most important feature of our judicial system, and I want to protect it absolutely—even, if necessary, beyond the point at which it needs protection.

I shall now move on to the question of the character of the defendant. I should begin by saying that some weeks ago, I would have described this issue in terms of the release of information about previous convictions. If I were still able so to describe it, I would say that we had severe hesitations about the release of previous convictions to juries and that we wanted, in this case as in that of double jeopardy, explicit and much tougher safeguards to ensure that such convictions were released and continued to be released—of course, they are already released under certain circumstances—only where the presumption of innocence and the prosecution's duty to prove beyond reasonable doubt

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were protected. In Committee or on Report or both, we shall table amendments specifically to introduce such additional safeguards.

However, I cannot describe that part of the Bill as dealing with the release of previous convictions because, to my astonishment—that is an accurate description—when we saw the Bill we discovered that it does not deal with the release of previous convictions alone. For example, if I understand it correctly, it deals with the release to juries of previous acquittals. I have to say that that fair takes the breath away. I cannot understand for the life of me how a jury can be expected to start with the presumption of innocence if it is open to the prosecution to bring forward a general character assassination based on innuendo and previous acquittal, tending, in the words of the Bill, to show a disposition on the part of the defendant towards criminality.

Alas, I think that I understand entirely the logic behind the proposals in that part of the Bill. Lord Falconer, who is one of the Home Secretary's close colleagues, will handle the Bill in the Lords. He is a distinguished jurist—one of Britain's most distinguished—and he comes from a long tradition of civil litigation. I believe that he starts with the idea that, in the words of Lord Justice Auld, with which I agree, justice is not a game. However, I believe that he also starts with the view that if justice is not a game it should, fundamentally, be a judgment on the balance of probabilities. That is an appropriate test when two people are arguing about how to allocate moneys between them, but it is wholly inappropriate to the question of depriving citizens of their liberties, perhaps for a long time.

I am devoted to the principle that we should eliminate from the list of factors that can be brought before a jury in any circumstances all those that have not been the subject of proof beyond reasonable doubt in a prior court. Having eliminated all other items, we would need additional safeguards that explicitly referred to the presumption of innocence and proof beyond reasonable doubt. Even then, if that position were achieved, I would, with a heavy heart, ask my hon. Friends to vote for such amended proposals. I would fear them even so, although I see the strength of the argument that at present there are inhibitions on trial judges that may need to be reduced to some degree.

I apologise to you, Madam Deputy Speaker, and to the House, for having gone on so long, but I want two minutes to add one more point.

Mr. Llwyd: The right hon. Gentleman knows, of course, that there is a right to introduce similar-fact evidence in certain circumstances, but is it not strange that the one category, or qualifying term, with regard to introducing bad character is that

I am sure that the right hon. Gentleman will forgive me for saying so, but I have prosecuted many cases, and one of the prosecutor's jobs is to explain the case to the court and the jury. Frankly, if prosecutors cannot do so without denigrating the defendant's character, they should jolly well give up the Bar.

Mr. Letwin: I agree with the hon. Gentleman—and beyond that, that phrasing reveals all too clearly the

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very logic that I was exposing. It means that trying to persuade an old-fashioned jury beyond reasonable doubt, and against the presumption of innocence, that according to the facts presented, the person in question did what they are accused of, is beyond the wit of the prosecution, and therefore that explaining the prosecution's point to the jury's satisfaction is easier if it can make a pile of other assertions about the defendant. Well, I am sure that is true. If the hon. Gentleman were prosecuting me, he could say things about me—with perfect truth, alas—that would help him in his prosecution, but that would not prove that I had performed the deed of which I was accused. That is the essential difference.

As I was saying, I want to spend two minutes responding to and defending myself against accusations. On various occasions, in the House and outside, the Home Secretary has said he finds it annoying that the official Opposition often greet his proposals with some warmth—that has been the case with the generality of the Bill—and then, following the outcome, cause an awful lot of trouble for him and his colleagues in the House of Lords.

I have to say that I am not ashamed of that concatenation. I think it reasonable for us to back the generality of the Bill but to object to certain clauses. I also think it reasonable for us to try to forge an alliance with Members of the other House who are members of the Home Secretary's own party, and with Liberal Democrats and Cross Benchers in the other place—with, in many instances, Law Lords and bishops—and to limit the scope of Government action, especially in relation to matters that have very little effect on the control of crime.

The three things I have mentioned in particular today will not, between them, account for any significant number of trials, or for any significant number of criminals. They do, however, have vast potential significance in relation to the fabric of our liberties. If there is a proper role for this House and the other place in checking and limiting the Government of this country, it is to protect the fabric of liberties against the Executive. That is the solemn duty of Parliament, and I am unashamed of trying to use Parliament to fulfil it.

One of my colleagues in the shadow Cabinet who used to be involved, as a lawyer, in trials in Scotland told me that at the beginning of one trial the judge said, XBring on the next criminal". That is the mindset to which we object.

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