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Cases that may be Retried

Mr. Grieve : I beg to move amendment No. 18, in page 41, line 7, leave out 'a qualifying offence' and insert—

'murder or rape, contrary to section 1 of the Sexual Offences Act 1956'.

Mr. Deputy Speaker: With this it will be convenient to take the following:

Amendment No. 479, in page 41, line 7, leave out 'a qualifying offence' and insert—

'murder, genocide consisting in the killing of any person, or corporate manslaughter'.

Government amendments Nos. 462 to 465, 357 and 466.

Amendment No. 480, in page 41, line 38, leave out

'an offence listed in Schedule 4'

and insert—

'murder, genocide consisting in the killing of any person, or corporate manslaughter'.

Government amendment No. 467.

Amendment No. 19, in page 188, line 1, leave out Schedule 4.

Amendment No. 129, in schedule 4, page 188, line 8, leave out paragraph 2.

Amendment No. 130, in schedule 4, page 188, line 16, leave out paragraphs 5 and 6.

Government amendment No. 423.

Amendment No. 131, in schedule 4, page 188, line 23, leave out paragraphs 8 to 18.

Government amendments Nos. 424 and 425.

Amendment No. 132, in schedule 4, page 190, line 7, leave out paragraphs 21 to 29.

Government amendments Nos. 474 and 475, 468 and 469, and 358 and 359.

Amendment No. 20, in page 42, line 41, leave out 'is' and insert 'appears to be'.

Amendment No. 21, in page 43, line 1, leave out 'is' and insert 'appears to be'.

Government amendment No. 360.

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Amendment No. 22, in clause 66, page 43, line 2, leave out paragraph (c) and insert—

'(c) it is material which a jury properly directed might reasonably convict.'.

Government amendments Nos. 361 to 373, 470 to 472, and 374 to 376.

Amendment No. 61, in clause 73, page 47, line 44, leave out 'and'.

Amendment No. 62, in page 47, line 45, at end insert

', and
(c) has sought leave from a judge of the Crown Court on an exparte application.'.

Government amendments Nos. 377 to 420.

Government new clause 42—Restrictions on publication in the interests of justice.

Government new clause 43—Revocation of bail.

Government new clause 44—Armed Forces: Part 10.

Government new clause 54—Application of Part 10 to Northern Ireland.

Government amendments Nos. 421, 473 and 422.

8.30 pm

Mr. Grieve: We shall now consider an area of the Bill that certainly caused me a great deal of anxiety in Committee. It was clear in Committee that there were vastly differing views about the correct approach that the House should have to the issue of retrial and double jeopardy.

A principle was long enshrined in our law—it certainly went back to the middle ages—that a person should not be in jeopardy twice for the same offence. The underlying principles were sound ones. In an age when the state could often act oppressively and, indeed, intended to do so, it was the one protection that a person had against continuous oppression by the state. Once a jury had had the courage to return a not guilty verdict, the issue could not be reopened. Some of the accounts of state trials in the 14th century show that the jury that did return a not guilty verdict was exposing itself to fairly severe sanctions. Notwithstanding that, once the jury did it, it was accepted that there was nothing that the state could do to re-prosecute.

We are talking, historically, about one of the great pillars of our liberties. We must therefore raise a question mark. Indeed, some Members have done so in Committee and in the House. Why has it been thought right to interfere with the principle by providing in the Bill the mechanism by which a person may be retried, having previously been acquitted, on the basis that new evidence has come to light on which he could properly be convicted?

The approach that the Opposition have adopted is essentially a pragmatic one. We have said that we accept, especially with the arrival of much better scientific evidence, including DNA, that many people would regard it as offensive in regard to the most serious of crimes if a person, having previously been acquitted because of insufficient evidence, found themselves when that evidence emerged some time later, in a matter that had caused the public huge disquiet and anxiety, incapable of being prosecuted again, and protected against prosecution, when the public would consider

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that it was of great public importance that the individual should be retried for the offence and, if the evidence was good, convicted upon it.

The matter has been considered over and over again. In particular, it was considered by the Law Commission. The commission's view—it has been reflected by the sorts of cases that have come to the public's attention—was that the mechanism for retrial should be confined to murder. However, Lord Justice Auld—I regret to say that it was in a fit of some deliciously woolly thinking, but perhaps I am allowed to say that nowadays, it being permissible since the Home Secretary has now allowed us to criticise members of the judiciary—

Mr. Heath: It is compulsory.

Mr. Grieve: As the hon. Gentleman says, it is compulsory.

Lord Justice Auld felt that it was necessary, or might be desirable, to apply the approach to other grave offences. The problem is that the Government, having considered what constitutes other grave offences in schedule 4, have come up with 30 offences that they consider should lead to retrial.

Simon Hughes: And an extra one.

Mr. Grieve: As the hon. Gentleman says from a sedentary position, an extra one is being added.

As in the previous debate on jury trial, there is the lurking anxiety and suspicion that this, in the inevitable way, will be only the start, and that once we go down this road we shall find in the years to come that there will be pressure to add other offences to the list.

I shall give the Minister an example. Let us say that a group of people commit a vicious armed robbery with machetes. They terrorise their victims and seize huge amounts of cash. It is something that causes a sensation when it happens, and they are acquitted. Under the provisions of schedule 4, they could not be retried. On the other hand, someone who is convicted of, I regret to say, the somewhat prosaic offence of supplying, or offering to supply, a class A drug—something that can be found to be taking place in small quantities at King's Cross virtually every day of the week—will come within the schedule. The criterion is that the offence attracts a life sentence.

Many offences attract life sentences on the statute book. Some offences do so because they are at common law and have never had a period of sentence defined for them.

Stephen Hesford : What about an offence of murder that is effectively a mercy killing? In the hon. Gentleman's mind, surely that would not come within the proper definition that he is seeking, which is a really serious offence.

Mr. Grieve: I accept the hon. Gentleman's point. It is a perfectly fair one. It might be said that there are different categories of murder in terms of the horror with which it is regarded by the public. Notwithstanding that, my impression is that the Law Commission selected the offence of murder for precise reasons. I suppose that short of high treason, murder has always

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been regarded as the most serious offence in the calendar. It is the malicious deprivation of another person's life, in circumstances where the jury convict. With mercy killings, juries have sometimes adopted a merciful view of the person who killed. In my experience, when juries convict in those circumstances, it is usually because they think that that which happened went rather beyond what a right-thinking person, being flexible with the law, would regard as proper.

The Law Commission had some sensible views on the subject.

Mr. Gummer: Is not the advantage of the Law Commission's restriction that it is objective? It refers to a specific class of crime which is seen universally as the most horrific crime. The difficulty with the Government's list—this is proved by the addition to the list—is that it is not objective. It tries to say that it relates to those things that shock people the most. Is it not a bad principle of law that we ask that that which shocks people should be subject to double jeopardy?

Mr. Grieve: I agree entirely. The argument for murder is that we must accept that someone who has a propensity to kill other people is potentially a serious public menace. I am sure that one of the reasons that weighed so heavily on the mind of the Law Commission was that there is enormous public interest in trying to ensure that such a person may not strike again. The sorts of cases that we have often heard about and commented about have been those where murder has been committed by an individual and other people are fearful that because of the murderer's psychopathic personality or other features, there might be a repeat offence.

The Minister knows, and his predecessor in the post knew, that I was and am unhappy with the prospect of departing from the time-honoured protection provided by principle of double jeopardy, notwithstanding the fact that, adopting the pragmatic approach that I said at the outset was the hallmark of our party's approach to the matter, I was prepared to consider making an exception. As will be seen from amendments Nos. 18 and 19, we have suggested that the provision should be confined to offences of murder and rape only.

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