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Mr. Grieve: I clearly accept that argument—we are prepared to concede that it should be possible to reopen murder cases that fall squarely within that group.
Mr. Malins: On the point made by the hon. Member for Nottingham, North (Mr. Allen) about offences that cause outrage, is not it the case that one offence that causes outrage in small communities is causing death by dangerous driving? Families are so concerned that they never get over it—it can be much worse than anything else. Yet which of us would argue that double jeopardy should apply to it? Causing death by dangerous driving is not in the schedule, but once one moves into that territory, the arguments become very complicated.
Mr. Grieve: My hon. Friend is right. Indeed, in recent times, Members of Parliament may have received more letters on that subject than on most others concerning the criminal justice system.
There is no easy answer, which is precisely why I return to the point that I made to the hon. Member for Nottingham, North (Mr. Allen). We would be wise to stick to a minimalist approach. Once the Bill is on the statute book, it will be extremely difficult to remove the provision. In that sense, the issue is simple. I concede that there are difficulties, and it is possible for thoughtful, right-thinking people to have different views on the subject. However, the more that we have reflected on it, the more strongly we have come to believe that the Law Commission was broadly right and the Government have gone much further than is proper.
I turn now to the other amendments in this group in my name and those of my hon. Friends. Amendments Nos. 20 to 22 deal with the evidence on which a jury could convict. I am delighted that the Government have gone a long way towards addressing our concerns, and I will certainly not press the amendments to a vote. The nub of the issue was that the wording of clause 66 left the distinct impression that the Court of Appeal could order a retrial only in cases where it was satisfied that the person was guilty. It seemed to us that that prejudiced the possibility of a retrial further on, because the papers would be able to report it and, indeed, use the court's very words. That was a subject of deep anxiety in Committee, which is why we tabled the amendments. I accept, however, that Government amendments Nos. 358 and 359 deal with the issue through a simple rewording. Their wording is slightly different from ours and, I concede, rather better—they were probably helped by their officials. I am pleased with the change, and I welcome the fact that the Government accepted that there was a problem.
Amendments Nos. 61 and 62 deal with judicial control. In this case, there may not be a meeting of minds, and the subject causes us considerable concern. We need to look at clause 73, which is about the authorisation of investigations. I hope not to detain the House too long, but this is an important issue and needs to be considered. Because of the unusual nature of the process, a person who, by virtue of being acquitted is free of the normal processes of criminal investigation—and should be, as long as he has not committed other offences—has to be criminally investigated with a view to a decision being made about whether a retrial should take place. That in itself is, if I may use the term, a very offensive procedure, because it means that someone with the benefit of an acquittal will suddenly have the police knocking on their door. A police officer may want to seize material, come into that individual's house, arrest him and take him away for questioning. All those actions would be regarded as a gross violation of his civil liberties, post-acquittal, if they were not to happen as part of the process of a possible retrial.
The Government have provided a series of mechanisms, with which they have tinkered further in their amendments, that are designed to authorise investigations. That process is dependent on the police and on the Director of Public Prosecutions. I accept that the DPP has an enormously important role to play in the administration of justice, but he is exactly what his name suggests—a public official who brings prosecutions and investigations in the name of the Crown. He is not, in that sense, an impartial figure at all, even though he lays
down very high standards for himself—the high standards that Parliament expects of him—as regards the way in which he carries out his duties. We have a long-standing principle in this country—although parts of the Bill seem to depart from it—whereby administrative actions that require a violation of somebody's civil liberties should have some judicial scrutiny. I am not saying that that scrutiny needs to be very intense, searching or far-reaching, but simply that it is a process by which someone goes to a judge to explain and to justify why such an investigation should commence.That mechanism would be provided by amendment No. 62, which would require the DPP to seek leave from a judge of the Crown court on an ex parte application for the process to commence. It would require him to say, "This is not frivolous. Here are the key components that we already have, which make us think that this individual was wrongly acquitted and committed this dreadful murder or rape"—I take the two examples in schedule 4 that I would continue to allow—"so we would like to initiate the investigation." The judge could then ask to be shown the relevant documents and papers. That would not necessarily take long: I envisage that such a hearing might take an hour to a couple of hours. We are told, I suspect correctly, that the likely number of such retrials in any given year is tiny: perhaps half a dozen. It would not place an onerous burden on the judiciary, but it would at least provide a mechanism whereby a judge could say, "No, you can't: this is completely frivolous", or indeed, "This is outrageous."
The Government will tell us that the DPP is not going to act outrageously, frivolously or offensively, and I accept that most of us would expect that to be so. However, there is a terrible tendency in the House at the moment in that the Government are always telling us that we must take Executive power on trust. I am afraid that one of the things that makes me a Conservative is that I do not believe in taking Executive power on trust. One of the reasons why we have a system in which Executive power is, on the whole, wielded properly is that on every occasion it has been challenged, scrutinised and argued over in this House and by the judiciary in holding the Government in check.
Why, therefore, should we not have the mechanism that we suggest in amendment No. 62? Can the Government give me one good reason why we should not have that extra check, which would provide great reassurance to the public that an investigation will not be mounted frivolously? It would also provide a protection for the police and the DPP. As certainly as night follows day, a reinvestigation will be undertaken in which the police re-arrest, re-search and carry out all those highly offensive acts against the liberty of an individual, but ultimately have to say, "We're terribly sorry, but we've decided that there insufficient evidence for this retrial and we won't proceed." At that point, great and possibly unjustified criticism will be levelled at them. What better mechanism to protect them than ensuring some judicial scrutiny before the process gets under way?
9 pm
Mr. Gummer: Before my hon. Friend leaves the point, will he cast his mind back to the Home Secretary's intervention on my right hon. Friend the Member for
West Dorset (Mr. Letwin) to ask him to confirm that judges were not creatures of the state? Let us turn the proposition around and say that in the case that we are considering it is important that somebody who is manifestly not a creature of the state should make the final decision. The police and the DPP are, very properly by their nature, creatures of the state.
Mr. Grieve: I agree with my right hon. Friend. Of course, there is a mechanism for going to the Court of Appeal to get the original verdict set aside. However, by that stage, a considerable intrusion on civil liberties has occurred. They need to be protected. The more one examines the details of the procedure, the more apparent is the extent to which we are making massive inroads into what most people regard as the basic civil rights of an individual who has been acquitted or held to be innocent of a specific offence. I hope that the Government can respond positively to that.
The Under-Secretary will speak about the many Government amendments. We welcome the desirable changes on reporting restrictions. For reasons that I outlined earlier, I am sorry that the Government propose including another qualifying offence. We are anxious about the changes on new and compelling evidence and the interests of justice test. I accept that the Government believe that the effect of the rewording will be identical to that of the previous wording but without allowing an opportunity for complex legal argument. However, the previous due diligence test appeared well worded to us.
I am not persuaded that the Government's classic move of providing in one clause that a trial can be reopened in the light of new evidence but qualifying that with a due diligence test is as good as the previous provision. We argued that the provision had to go beyond the Government's proposal and ensure that the prosecution was not allowed two bites of the cherry through incompetence. I hope that the Minister can reassure us about that. In the other place, those who are better versed in law than many hon. Members in this place will be able to give their opinion on whether the Government amendment would not change much but lead to better wording. I remain unpersuaded, but I am open to persuasion.
I am sorry that the Minister has not accepted our views on retrospection, but I shall not reopen the matter. I look forward to his comments on the voluminous Government amendments. I repeat that the fact that the Government had to devise so many highlights the subject's complexity and difficulty. That is all the more reason to confine their scope, as was originally intended, to our proposals in amendment No. 18.
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