| Previous Section | Index | Home Page |
Stephen Hesford: The hon. Gentleman says that the Opposition's approach is pragmatic. He will recall from an interchange in Committee, when the hon. Member for Woking (Mr. Malins) was struggling to identify the serious offences to which similar wording might apply, that there was some banter about genocide. Should not genocide come within the definition?
Mr. Grieve: That is a fair point. As the hon. Gentleman knows, some of his hon. Friends, fellow Back Benchers, have tabled amendments separate from ours that take a slightly different approach. Those hon. Members have run through the entirety of schedule 4 and sought to identify what they consider to be the most serious offences. That is wider in scope than amendment No. 18.
If the Minister suddenly stood up and said that the approach adopted by his hon. Friends was the correct one, in a spirit of compromise, I would not press my
amendment to a Division, and we would go away and try to resolve the issue. There is an issue pragmatically and legitimately to be considered about eroding the double jeopardy protection. However, it is the Government who reiterated in Committee—the hon. Gentleman will remember the Minister's words—that they recognised that the double jeopardy rule was an important protection, and they wanted only to erode it slightly in those areas that they considered important to ensure that public confidence in the criminal justice system was maintained. When I look at the lists and compare them with what I consider to be the key areas of public disquiet, I think that the Government have got it wrong.
Mr. Malins: My hon. Friend is advancing the argument well. Given that the principle of double jeopardy is so important, and the difficulties that we had in Committee in going through a series of offences that would be covered by the new rule, is not one of the strongest arguments for his amendment that we should move very slowly and one step at a time? By including only murder and rape at this stage, we can watch to see how the law develops before widening it. That, once done, is difficult to withdraw.
Mr. Grieve: I entirely agree with my hon. Friend. One aspect that causes me disquiet is that, although the matter was considered carefully by the Law Commission—I cannot pronounce on Lord Justice Auld's approach—I do not believe that much thought was given to it before the Government embarked on it. One of my reasons for saying that was what happened in the Home Affairs Committee when it sat briefly and rather imperfectly, as the Committee itself admitted, to consider the wide range of changes that were being introduced.
When Lord Falconer of Thoroton was giving evidence on 26 November 2002, the Chairman asked:
- "How many offences can be retried under double jeopardy?"
- "I think the number is 30, and aiding and abetting as well. It is Schedule 4, page 181 of the Bill."
- "Thank you. It does seem rather a lot more than most people previously anticipated—or indeed the Government suggested."
- "These things have a habit of growing, do they not?"
- "The Law Commission originally set it as being murder but Lord Justice Auld said it should extend to other grave offences. What we did was look at all offences that attracted a maximum of life imprisonment, and these are only some; these, ministers decided, were the most serious under that category and they were the ones that ministers agreed should attract the possibility of retrial."
As the Minister knows, from the many amendments that the Government have introduced to try and improve this part of the Bill—I will go on to welcome some of the steps that they have taken—the mechanism of retrial will be complicated. It will be complicated to achieve a just result, and it will be complicated to implement the mechanism properly without trampling on the civil liberties of the individual being investigated. The measure is far from being one that will allow the Government to click their fingers and start again. Getting a fair trial, ensuring that the public have confidence in the process, and ensuring that at the end, criminals consider that they have been justly convicted, which is an important part of the criminal justice process, will be extremely difficult to achieve. Surely, that is all the more reason why we should restrict the scope of this experimental project to a limited number of offences. We could limit it to the murder offence only, as the Law Commission suggested, but we seek to include rape as well because we are perfectly aware of the dangers attendant on it, public abhorrence of it, anxiety about its increase and, in particular, the fact that scientific evidence is often key in determining at a subsequent date that an offence was probably committed when the scientific DNA evidence was not available at the time of trial.
8.45 pm
Stephen Hesford: The hon. Gentleman has been generous in giving way. I wish to push him on the question of practicality or pragmatism. As I read things, if amendment No. 19 were agreed to, it would leave out attempted murder, manslaughter and attempted rape, which are currently included in schedule 4, which it seeks to remove. How does he deal with that point?
Mr. Grieve: Very simply. Attempted murder may well have many of the very unpleasant ingredients of the complete offence, but the fact is that it is a lesser offence and has always been regarded as such, and the line has to be drawn somewhere. That is the problem. The Government say, "Oh, well; we'll draw the line at 30 offences", but then tell us on Report, "Actually, we'll make it 31."
Once the double jeopardy rule is got rid of, there is an inexorable logic for saying that every offence is capable of being retried. I can think of no philosophical reason why, once we open the floodgates, we should not go the whole way. It is perfectly justifiable to ask why somebody who escapes conviction should not be retried, but there are other arguments. One is that we need certainty, and another is that it is very undesirable that there should not be finality in legal proceedings—a point that has been accepted for many years and repeated in civil and criminal matters. Furthermore, there is a danger that people will feel persecuted, as well as a danger of miscarriages of justice. We all know that some people are convicted but found 18 years later not to have committed the offence. At some point down the road, when we bring back double jeopardy, we will find somebody who has been acquitted and convicted, but whose conviction is overturned 18 years on because it was unsafe and unsatisfactory. That will be a very bad day for the criminal justice system.
The hon. Member for Wirral, West (Stephen Hesford) will also remember that, during the Bill's passage, I have highlighted a range of other issues,
including the deprivation of liberty attendant on the process of retrial, which is inevitable and highly offensive to civil liberty concepts, as most people who have been acquitted are entitled to the benefit of that acquittal. The removal of that benefit is a draconian step. We cannot underestimate that, but I accept that once it is decided that that is not a draconian step, we might as well retry people twice or three or four times for anything on which we could not secure a conviction and on which further evidence came to light.That is abhorrent to me, I think that it is abhorrent to the hon. Member for Wirral, West and I am sure that it is abhorrent to the Government. That is all the more reason why we should limit the provision to what the Law Commission proposes and perhaps also include rape, as we have suggested, with particular regard to the issue of scientific evidence. We know that, in all likelihood, even though the new evidence is not limited to scientific evidence, the sort of cases that will be reopened will be those in which DNA evidence exists from the scene of the original crime and provides a strong and powerful link between the person who was previously acquitted and the commission of the offence. In itself, that is not without problems, and we explored them in Committee as well. DNA is not entirely foolproof and evidence can be contaminated and sometimes misread. Nevertheless, it provides a framework and perhaps a justification for reopening a case, and we are prepared to concede that. I come to the Minister in a conciliatory mood, but only up to a point.
Mr. Allen: The hon. Gentleman is making a very strong case and I commend him for it, but he is missing out the public outrage. I know that he is well aware of the various cases that generate outrage in which a particular individual is known to have committed an offence and got away with it. In Committee, we referred to a case that arose in the constituency of my hon. Friend the Member for Stockton, North (Mr. Cook), in which a child molester and child killer got away with the offence in the first instance, but afterwards not only admitted having committed it, but made money out of a newspaper by selling his story. Such cases show the need for a balance, which the hon. Gentleman might want to bring to his remarks. Unless they are dealt with, they will bring the whole criminal justice system into disrepute.
| Next Section
| Index | Home Page |