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Mr. Grieve: The hon. Gentleman makes a good point, and that is the issue that we were trying to beef up. I prefer my wording, so I shall push the amendment to a vote. The Bill would be improved by its inclusion, and it would not be damaged in any way, even from the Minister's intention, by changing it. Question put, That the amendment be made:– The Committee divided: Ayes 6, Noes 12. Column Number: 474
Division No. 18]
AYES
NOES
Mr. Grieve: I beg to move amendment No. 309, in
I apologise, Mr. Cran, for referring to amendment No. 309 on the previous group of amendments. I erroneously believed that it had been grouped with them. To recap, I wish to replace ''would'' with ''could'', because I believe ''could'' to be better. Hilary Benn: I do not think that to change the wording from ''would'' to ''could'' would help, because subsection(2)(c) asks the court to consider how likely it is that there has been a failure of due diligence and whether, if there was one, it would have made the evidence available sooner. My problem with ''could'' is that it takes us more in the direction of speculation, and I am not sure that that helps the Court of Appeal to undertake its functions. The court must look at the likely impact of any failure of due diligence, and that is what the Bill provides for. For those reasons, I prefer the formulation ''would''. Simon Hughes: I want to make the same plea. The difference is narrow, but I marginally prefer the amendment to the original. I know that we went through a great deal of pre-publication consultation, but it would be helpful if the Minister could tell us whether anyone made submissions or commented on these matters. In the interests of open government, I hope that if any information has come the Government's way that we have not been given, he will ensure that we receive it, or that it is placed in the Library. I appreciate that hon. Members sometimes turn their minds to the issues only when they see the amendments and ask themselves the questions prompted by them. I have not thought through all the consequences, but we prefer the amended to the original version. Mr. Grieve: I hate to disappoint the hon. Gentleman, but I have a horrible feeling that this may not have been the sort of textual examination of clauses that was anticipated. My textual examination often takes place late at night and I substitute my own personal preferences for those of the Minister and his team. Having flagged up the matter, I am happy to leave it to their Lordships' House to determine whether the text should be altered. I am concerned to make the test as strong as possible, which is a real point rather than an exercise in semantics. Having said that, the difference between the two provisions is not sufficient to warrant dividing the Committee, so I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Column Number: 475
Mr. Grieve: I beg to move amendment No. 314, in
This is a rather more fundamental amendment. Should we spell out explicitly the concerns of Parliament—already expressed on all sides—about the potential impact of publicity on the ability to have a fair retrial? One would expect the clause to deal with that as part of the general submissions that the Court of Appeal has to examine. It is a crucial issue because a major problem with re-litigation of a criminal case is that much publicity will already have been generated. It is particularly problematic when the retrial is taking place not 20 or 25 years later, but only six or eight months after the event. New evidence might well come to light in a serious case when an acquittal was followed by a huge amount of press comment about the original proceedings. The prosecution might have said that the evidence was so reliable and substantial as to make it highly probable that the person was guilty—or whatever it reads after the Minister has redrafted clause 65—and the public will have been very much alive to the case and to the publicity surrounding it. I am not asking for a prohibition on a retrial, but it should be built into the Bill that the new evidence is serious enough to merit independent consideration by the Court of Appeal. Stephen Hesford (Wirral, West): Is not the problem with the amendment that it narrows the potential discretion of the Court of Appeal? What would happen if the adverse publicity related not to the original proceedings but to the new evidence? It would not be caught by the provision and it could prevent the Court of Appeal from taking the new evidence into account. Mr. Grieve: I take the hon. Gentleman's point, but I am not persuaded. Subsection (2)(a) already provides for a wide range of considerations to be taken into account, as it prescribes having regard to
Publicity surrounding something other than the previous trial would be caught by that provision. I acknowledged at the outset that the amendment is, to some extent, an additional element to subsection (2)(a). It has legitimately been argued that it is covered by that provision, but I contend that the issue is so important that Parliament should have the right to identify it separately, which is frequently done in legislation. When we considered the Proceeds of Crime Bill, we highlighted concerns on a number of occasions and included them in a list that otherwise would not have dealt with them. I see no problem or downside. The court would simply have to give separate consideration and state it openly when the time came to make its decision. From that point of view, the measure would be an extra protection. Simon Hughes: This is an extremely serious matter. We as a Committee in Parliament, and all those interested in justice, should be troubled by the current state of affairs. The hon. Member for Beaconsfield Column Number: 476 (Mr. Grieve) was right to say that the issue had recurred periodically in our deliberations on double jeopardy. There are several matters that the Government have not yet addressed, although I appreciate that we shall come later to clauses that deal with restrictions on reporting and to a particular clause that creates offences in connection with reporting and that establishes provision for fining journalists, editors, newspapers and so on.The comments that I have heard came from the Attorney-General, rather than the Solicitor-General, but the Law Officers have made it clear that they keep these matters under close scrutiny. I may be wrong, but I think that the current Attorney-General has taken action on two occasions—certainly one occasion was well publicised—to warn the press, to the extent of legal proceedings, when he believed that they were behaving improperly in anticipating potential trials or verdicts, including findings of guilt. In that context, it would be helpful if one or other Minister could confirm for the record, either now or later, on how many occasions in this Parliament and the previous Parliament—because there was also a Labour Administration then—the Attorney-General has taken legal action against any publisher in relation to any proceedings and the reporting of them. That relates not to retrials, but to first trials, or a trial in a first series of trials. On how many other occasions have the Attorney-General or Solicitor-General given general or specific warnings to the press? One reason why I am concerned is that, in a society with a free press, it is very difficult to undo the damage that is done, even if there can be legal proceedings after the event. The reality is that, once a paper has printed a front page with pictures of people who it says are guilty, or once a trial has been reported and is hugely in the public domain, it is too late to eliminate that from people's minds. Again, I remember from the Lawrence case that one national newspaper printed on the front page pictures of what it called the guilty men. I do not believe that it is possible after the event to punish a very large organisation—in that case, a national newspaper that is owned by a much larger company with significant assets—so effectively that it undoes the potential injustice of what has been done. Even if a significant fine was imposed or the editor was taken to court, found guilty of contempt and sent to prison, that would not undo what had been done, because it would be after the event. In this respect, the law is at risk of not being able to compensate for the adverse effects of such publicity. Lady Hermon: Let me add to the hon. Gentleman's point a reference to an interview that Sir William Macpherson gave to The Spectator, which was reported in The Guardian on Thursday 1 August 2002. Sir William was the former High Court judge who conducted the official inquiry into the murder of Stephen Lawrence. I was particularly struck by the report of that interview. Although Sir William supported the change to the double jeopardy rule, he is reported as having said that if new and compelling evidence came to light in the Lawrence case, the Court of Appeal would have to consider whether it was Column Number: 477 possible for the suspects to get a fair trial a second time around after the Daily Mail had printed their pictures and branded them murderers.
3.15 pmSimon Hughes: The hon. Lady rightly adds a very clear reminder from the person who was closest to the issue subsequent to the inquiry and who put that question in the public domain. There is a danger here of two-tier justice. Famous trials will get publicity in a way that makes it much less likely that there will be a fair retrial, whereas the less famous trials may not receive so much publicity and a fair retrial might be more possible. That is wrong. If Mr. Grobbelaar, Mr. Bowyer or Mr. Woodgate, or anybody else—Mr. Beckham, for the sake of argument—were to appear in court, that case, like other footballers' cases, would be all over the papers. Famous people are entitled to the same rights—but no lesser or greater rights—as somebody of whom no more than a handful of people have ever heard. I worry that it will not be possible to achieve that equity of treatment. Some cases attract wall-to-wall coverage in the media and others do not. I should be grateful if the Minister would address that concern. The Law Commission recommended two types of case to be subject to double jeopardy exemption: murder and genocide. There is now a list of 29 or 30 qualifying offences, two of which, robbery and wounding, are, by any definition, lesser offences. The Minister told us the other day that out of some 3,000 cases of wounding last year, there were 2,000-odd convictions. That leaves more than 1,000 acquittals—more than 1,000 cases per year in just one of the types of case that would be able to come back to court. Those cases, which are run of the mill in every Crown court, would be unlikely to be prevented from being retried because they would not have been widely reported: there is less press interest in them—unless they involve somebody famous—than there is in serious cases. I am also concerned about the location of trials. I assume that it is always within the power of the administration of the court system to determine where a retrial is to be, so a case that, for the sake of argument, has been famous in the north-east, could be retried in the south-west in order to ensure that there is a better chance that the jurors were not aware of what had happened before. That again involves a different type of treatment in certain cases, whereas the criminal justice system is supposed to provide parity of treatment for everybody. Originally, people were tried by their peers and all the people on juries knew the defendant. Now, the jurors are not meant to know the defendant, so there has been a slight change. If a case that had originally been tried in Newcastle Crown court were to be tried in Bristol or Exeter Crown court, the jurors would automatically wonder why they were dealing with it. Thus, in practice, relocation would be only a partial remedy and would not prevent jurors from asking Column Number: 478 themselves why they were trying the case, and possibly concluding that it was a retrial.How do we prevent a jury dealing with a serious case from working out that the case has been around the circuit before? Whatever we do to the final wording of clauses 65 and 66, if Parliament agrees that the Court of Appeal can determine on application whether in some circumstances there should be an exemption from double jeopardy and the case can be reopened, does the Minister accept that we could not protect the second jury from knowing that fact? The jury may happen to know in some cases, but it is arbitrary: some will know, some will not. That will give rise to prejudice, however well the jury is directed at the beginning of the second trial. The judge can say until he is blue in the face that the jury must presume that the defendant is innocent until proven guilty, but a jury that knows from all the publicity surrounding the case that it is being retried because of new evidence will bear that in mind, even when making finely tuned judgments and balancing the evidence.
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