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Lord Lloyd of Berwick: I must say that I do not often come to the rescue of the Attorney-General, but it seems to me that he is plainly right on this case. If we are going to accept this principle at all—if there is new evidence which satisfies Part 10 and if we have jurisdiction to try a man a second time in this country—it does not matter a row of beans whether he has been acquitted here or elsewhere.

Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his explanation. He has sparked a realisation of how important it is that we get right the safeguards and the list of offences in Schedule 4. The noble and learned Lord was saying that we will get to the details later. We are dealing here with the extent of the application of the jurisdiction on how we will operate the relaxation of double jeopardy. In fact,

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it has disappeared in many cases. If we are going to accept that the principle is right, we must make sure that the fact is right.

I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick, that if the principle of double jeopardy goes in certain limited cases, the guilty should not escape—if that is what we are trying to say. But in so doing, we must ensure that we are content with how we define that loss of double jeopardy. We will have that opportunity in later amendments.

I am very grateful to the noble and learned Lord for saying that he will write to me on the specific questions I raised. He will know when we were dealing with the Extradition Bill, hidden away in Grand Committee upstairs, that I also expressed concerns about the compatibility of the provisions of this Bill with the Extradition Bill and that the Government later this summer—or indeed autumn or winter, whenever we are going to finish these Bills—will achieve some synchronicity whereby these particular clauses are compatible.

I may not agree entirely with the noble Lord, Lord Thomas of Gresford, about the principle of the matter—I may go further than he in agreeing with some things that the Government propose—but I am certainly concerned about how the matter is put into effect in practice. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 133U not moved.]

Lord Lloyd of Berwick moved Amendment No. 134:

    Page 46, line 33, leave out subsection (6).

The noble and learned Lord said: Perhaps I may start by saying that this is in no way a paving amendment. The one thing that stands out a mile from Clause 69 is subsection (6). Indeed, I was surprised that no one picked up subsection (6) on Second Reading. I should have done so myself if I had been able to take part.

We in this House are surely right to have a strong antipathy to retrospective legislation—an antipathy that is not confined to the retrospective creation of new offences. It goes much wider than that. All retrospective legislation is undesirable, but especially when it is liable to deprive a man of his liberty, whether or not by creating a new offence as in this provision.

Let me give an example of what I have in mind. A man commits one of the less serious offences under Schedule 4. He is tried and acquitted. All of that happened five or 10 years ago. He consults his solicitor at the time and is told, perfectly correctly, that he cannot be tried again for that offence. He then marries and, perhaps to clear his conscience, he tells his wife that he was indeed guilty of that offence. The marriage then breaks up, perhaps in acrimonious circumstances.

Is that man then to live for the rest of his life in fear that his wife will tell the police that he confessed to the crime, or perhaps sell the story to the newspapers? I would regard that as the grossest injustice. He had a right in accordance with our law not to be tried again—a right

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that accrued five or 10 years ago when he was acquitted. If the rule of law means anything, he surely ought not to be deprived of that right by subsequent legislation. It is no good saying, "Well, he was guilty anyway so he cannot complain". That would hold good only if the guilty are to be regarded as having no rights—hardly the mark of a civilised society.

I should be very surprised if the Attorney-General were to take that line. No doubt he will say instead that the Court of Appeal would never exercise its discretion to order a retrial in such a case. Maybe not. But the Government seem to be taking that line throughout the Bill as we go through it clause by clause. It is surely wrong to enact illiberal and repressive legislation and then say, "Oh, but it will not be enforced, or only in the most exceptional circumstances". The criminal law should be certain in its impact. As we lawyers would say, it should not depend on the length of the Lord Chancellor's foot, if, indeed, there will shortly be any foot to be measured.

It may then be said that unless we make Clause 69 retrospective, it will be some years before it can be applied; to which I should reply, "So what?". We have lived with the rule against double jeopardy for hundreds of years; surely we can live with it a little longer—unless, of course, the police have specific cases in mind that they would like to bring back before the courts to secure a conviction. I caught a hint of that in the speech of the noble Lord, Lord Mackenzie, at Second Reading on 16th June at the foot of column 600 of Hansard. I hope that I was wrong, because I can imagine nothing more abhorrent than to pass retrospective legislation designed to catch particular individuals.

For the reasons I stated earlier, I am in favour of the limited exception to the double jeopardy rule; but I am wholly against making that change retrospective. I beg to move.

Lord Neill of Bladen: The noble and learned Lord the Attorney-General was good enough to indicate that I might make a few observations about the general principles involved here. I am surprised at the meekness with which the Committee is accepting the situation, where a centuries' old rule against double jeopardy is being jettisoned. I find it astonishing that, at present, no amendment on the matter has been tabled. Perhaps something can be done on Report.

A very grave and serious principle is involved. I do not agree with the reference by the noble and learned Lord, Lord Lloyd of Berwick, to a Latin tag to the effect that it is in the interests of the state that litigation should come to an end. It is my understanding that that applies to civil litigation. The principle on double jeopardy is that it is a very grave thing for a man or a woman to be prosecuted for a criminal offence. If acquitted, the acquittal should stand for all time; it should not be a provisional acquittal. Something very serious is at stake.

I hear people talk about DNA cases, where the new compelling DNA evidence is brought to light, but that is not what we are talking about in the Bill. We are

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talking about so-called "new and compelling evidence" and where it is "in the interests of justice" that there should be a second trial. When I read the definition of "new" I could hardly believe it. New means old. Clause 72(2) states:

    "Evidence is new if it was not adduced in the proceedings in which the person was acquitted".

All that it says is needed for evidence to qualify as "new" is that it must not have been brought forward. To make matters worse, when the Court of Appeal considers whether it is in the interests of justice to make an order under Section 71, under Clause 73(2)(c), one of the factors to which regard must be had is,

    "whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".

You would be dealing with old evidence that was available but with which there has been some mess-up in the earlier proceedings. The width of the abolition of the double jeopardy rule is extremely extensive. No attempt has been made to chisel it so that it fits DNA-type conclusive evidence cases.

Secondly, what will be the consequence of abolition of the double jeopardy rule? My prediction is that there will be hounding in the media of people who are acquitted in sensational, high-profile cases. The acquittal will not be final, and it will be up to anybody, including the press, to see what additional evidence they can rootle out so that there can be a second prosecution of the person who has been acquitted.

I have some experience in those matters, having been chairman of the Press Council for some five years. The press is industrious in pursuing such matters. Perhaps that is a healthy thing.

Thirdly, what a time to introduce the abolition of the rule against double jeopardy. We are about to be asked to sign the convention coming out of the Giscard d'Estaing praesidium in France, which the European Council of Ministers in Thessaloniki announced the other day would be signed in June next year. Part of that is a charter of rights.

I remind noble Lords about Article 50—I say that ironically, because I do not think anyone knows what is in the charter of rights. It says that:

    "No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law".

That is the basic provision in Article 50 of the charter. To make matters simple, an explanatory memorandum accompanies the charter which quotes Protocol 7, Article 4 from the convention on human rights, which states that the basic rule is that there is no double jeopardy. However, in subsection (2), it says that a member state may introduce a qualification and may have double jeopardy. We have had the right under the convention for years and not exercised it. We are about to exercise it when another rule comes into place via the charter.

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I have serious and grave concerns about the abolition of the rule against double jeopardy. It will lead to very undesirable results and has been drafted in a way that is in no sense confined to a necessary and tightly drawn category of case.

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