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Mr. Heath: I am worried that the Government might be raising expectations of the result of this measure way beyond what can be sustained. In Committee, the Minister's predecessor told us that very few cases were likely to be brought before the courts under this proposal. When one looks at the thresholds to be applied and the difficulty of getting a fair trial—which
may, I fear, take out some of the most notorious cases—the possibility is that very few cases will be retried on this basis.
Paul Goggins: The hon. Gentleman will note that I said that the Home Office was aware of other cases, which was the only claim that I made.
Amendments Nos. 129 to 132—tabled by my hon. and learned Friend the Member for Redcar (Vera Baird) and others—are in a similar vein to the amendments that I have just mentioned. Although the list in the amendments is drawn more widely than the list offered by the Opposition, I cannot accept the amendments for the same reasons.
Schedule 4 has been considered carefully by Ministers and although there is clearly an element of judgment over exactly which offences should be included, we believe that the current list includes a range of very serious offences for which it is right that there should be a retrial if new and compelling evidence becomes available. I do not accept the arguments made in Committee and this evening by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that the list of qualifying offences leaves too many acquittals with, in effect, a provisional rather than a final status. For any case to be reopened, there must be new and compelling evidence against the acquitted person. We have put in place a range of safeguards to ensure that only in these cases are re-investigations and new charges to be justified. Frankly, only guilty people who know that they have got away with it will need to be worried about the prospect of a retrial.
I wish to refer to the amendments on new and compelling evidence. Clauses 66 and 67 are in many ways the very heart of part 10 of the Bill, where we articulate the tests that we want the Court of Appeal to apply in considering whether to quash an appeal and order a retrial. As in many other aspects of the Bill, the test has to hold some important considerations in the balance. It has to hold in the balance the need to impose a high threshold on reopening an acquittal to ensure that that is not done except in the most compelling cases, with care of course not to set the test so high as to amount to a virtual imputation of guilt, which could prejudice a retrial.
The test must guard against giving our investigators and prosecutors the slightest encouragement to think that they can skimp on the preparation of a trial on the basis that they can always have another go if the defendant is acquitted. The test has to be scrupulously fair to acquitted persons and must deliver visible justice to the victims of extremely serious crimes. Finally, the test has to ensure that justice is not brought into disrepute either by the unwarranted harassment of the innocent or by allowing the guilty to flaunt their guilt, safe in the knowledge that the law is powerless to act. In the end, the court must deal with an individual case on its own merits and decide as the interests of justice require.
Mr. Marshall-Andrews: I apologise for not being here for part of this debate, although I have been here since 3.30 pm. The Minister will be aware that the objection that many of us had for many years to double jeopardy was not on the basis of civil liberties—I do not think it
is a civil liberties issue—but on the basis of policy, which is what he is talking about at the moment; the policy that dictates that one gets it right first time. I am persuaded that that is no longer a consideration. However, what I do not understand is why, under those circumstances, we should be limited to two. If precisely the same test is to apply—namely, that evidence was not available—why should we stop at two? Why cannot it be three, four or more?9.30 pm
Paul Goggins: My hon. and learned Friend will recognise that the reason for stopping at two is that it is one of the safeguards that the Government offer to prevent a sense of repeatedly reopening old cases.
In Committee, some very cogent suggestions were made for improvements to the test that I just mentioned. I am happy to introduce Government amendments that bring about those improvements. It was suggested in Committee that the test of new and compelling evidence went too far in imputing guilt to an acquitted person, and was therefore potentially prejudicial to a retrial. We have considered that point carefully and introduced amendments that will remove references to "guilt", and refer instead in clause 66(1) to evidence
- "against the acquitted person in relation to the qualifying offence",
At the same time, we propose to revise the definition of "new" evidence to make the test both clearer and simpler. That is because we believe that the current wording of clause 66(2) would provide scope for endless legal argument about whether evidence was, or should have been, "known or available" to the police at the time of the original acquittal.
Mr. Grieve: When we debated this issue in Committee, I got the distinct impression from the Minister present that the form of words that this Minister wants to jettison was regarded as one of the really important and essential safeguards to prevent—[Interruption.] I got the distinct impression that that Minister saw it as important in ensuring that the two-bites-of-the-cherry principle did not follow, and that it was not there to cure prosecution incompetence.
Paul Goggins: The hon. Gentleman points to the importance of scrutiny in our Committees.
We therefore propose a new, straightforward, factual definition: the evidence is new if it was not adduced at the original trial. Linked to that, we also propose to clarify the "due diligence" tests set out in clause 67 to help to guard against the possibility of poor police investigations giving rise to a second bite of the cherry.
Given those circumstances, I believe that we have addressed the concerns raised by the Opposition amendments and provided a package through which the Court of Appeal can take a balanced view on whether an acquittal should be quashed and a retrial ordered. For that to happen the evidence must be new, in that it has
not been before the court before; it must be compelling; and the court must consider it to be in the interests of justice for a retrial to be ordered. Those are the right tests and they strike the right balance.Therefore, amendments Nos. 20 and 21 are not necessary. The Court of Appeal must assess whether the new evidence in a case is reliable and compelling. I can see that the purpose of the Opposition amendments is to make that judgment appear more guarded, and clearly, we would wish to avoid any ruling that might appear prejudicial to a potential retrial. But we must remember that the court is considering only the nature of the new evidence, not the entirety of evidence as it will be presented in a retrial, nor the guilt or otherwise of the individual. We therefore believe that an assessment of whether the evidence is reliable and substantial, taken together with our other proposed changes, is the right one.
I believe that the case for retrial in relation to serious offences is now widely accepted. The Government amendments introduced this evening will help to apply this principle more successfully in practice.
Mr. Gummer: I congratulate the hon. Gentleman on his first speech as a Minister—I am only sad that we lose him as a campaigner on certain issues on which he and I have much in common. It is a pleasure to follow him.
I have concerns about this part of the Bill not because I do not find the Minister's arguments compelling, but merely because they go too far. They go too far because we have not yet had the experience of introducing to our legal system the concept of double jeopardy, which, after all, we excluded from it for centuries. Perhaps this is a moment for a little care and reticence—a view commonly held by many on both sides of the House. That is the reason for questioning the long list that has been produced.
The list is rather less compelling when read in its totality. I have no doubt that an offence arising out of article 4 of the Channel Tunnel Security Order 1994 is extremely serious, but there are other hijacking offences that might be thought at least equally serious. That example was chosen because of the maximum penalty involved. That is the fundamental difficulty with the Government's proposals. The list provides a series—though not an exhaustive one—of penalties for offences. However, they are not characterised by their objective seriousness, but appear because someone decided in the past that they were serious enough to warrant the maximum punishment of life imprisonment.
That makes for a rather peculiar series. The Minister is right that, among them, are highly serious offences that we would all agree should be included as the most serious that could be committed. The question remains whether, because they are serious offences, they reveal themselves to be of a different class and category from other offences. I find it difficult to view the list in those terms, so I return to the notion of objectiveness.
We must decide how the seriousness, shock and horror should be measured. Surely we have to look not at individual cases, but at classes of cases. I am concerned at the idea that we need to include an offence because of people's horror at a particular case. One of the reasons for having a formal legal system is to remove the decision in the case from the immediacy of the
horror at the offence in order to judge the case with impartiality and objectiveness. I am concerned at the argument that certain offences should be included because the public could be so affronted by a particular case that they would be appalled if it were not re-tried.We should view the case rather differently, which brings me back to the position of the Law Commission. It may not necessarily be right, but it has put forward a proposition that can be recognised as sensible by all. Its approach was to take one particular crime that was universally viewed, without question, as unique in its horror—the taking of someone else's life purposefully. It is possible to stop just there, but my right hon. and hon. Friends believe that the crime of rape should be added. I value the comments of the hon. and learned Member for Redcar (Vera Baird). She is right to say that rape is a proper addition to the list, but it perhaps opens the door to many others. Those two, however, would universally be seen as crimes of a particular severity and horror.
In those circumstances it is surely sensible to do what the Law Commission suggested. It argued that, if double jeopardy were necessary, it should be restricted to those crimes. After some experience, I am not one who believes that it could not safely be extended to other offences, but I am saying that we cannot safely extend to all the others, without any experience, something that we have found inimical to our legal system for hundreds of years.
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