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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 allif there is new evidence which satisfies Part 10 and if we have jurisdiction to try a man a second time in this countryit 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,
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 escapeif 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 summeror indeed autumn or winter, whenever we are going to finish these Billswill 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 matterI may go further than he in agreeing with some things that the Government proposebut I am certainly concerned about how the matter is put into effect in practice. For the moment, I beg leave to withdraw the amendment.
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 legislationan 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 againa right
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 longerunless, 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.
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.
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.
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 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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