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Lord Thomas of Gresford: While I accept the lash of the noble and learned Lord, Lord Mayhew, for the compromise to which he referred, I hope he will notice that my name is attached to this amendment, which deals with retrospectivity. As the noble and learned Lord, Lord Lloyd of Berwick, pointed out, towards the end of the 19th century fingerprints were discovered to be unique, but that made no difference to the double jeopardy rule.
We now have DNA, but that is not unique. The Committee will remember a case in Cardiff last week. Three men had been wrongly convicted and were acquitted by the Court of Appeal after serving some three years. The offender was finally traced through DNA—but not his own DNA. It was the DNA of a nephew, who was not born at the time of the original offence. It was so close to the DNA of the offender that those who investigated the offence were able to apprehend the right man after some 15 years. It was a case of some notoriety in Wales.
I have been involved in a case where, although it was a 10 million to one chance that the DNA found on the victim did not come from the defendant or someone closely related to him, it did not follow that there were not people within his own family who may have had similar DNA. The odds fell from 10 million to one to about two to one. It will not surprise the Committee to learn that the defence was that someone else in the family had committed the offence. DNA is not the wonderful complete answer to everything in investigations. In many cases there is still a question mark about it.
The noble Baroness, Lady Kennedy of The Shaws, said that in future people will live in uncertainty when they are acquitted. The amendment is concerned with people who, in the past, have lived in certainty that there was finality. If the amendment is not passed, they will all of a sudden find that the acquittal they received many years ago, maybe in another country, will no longer protect them from further investigation and the kind of pressure to which noble Lords have referred.
Furthermore, victims and their families who still carry the hurt with them will be disappointed. There have been many famous cases; indeed, the noble
Baroness, Lady Kennedy, referred to some of them. However, in such cases where acquittals have taken place, I have not heard that there has been some new discovery of DNA that suddenly made those acquittals wrong. Those who have in the past finally come to a closure and conclusion about the trial that took place will suddenly find that it has all opened-up again.The whole purpose of the rule against double jeopardy is to have closure and finality. As human beings our lives are short and we have to come to terms with decisions that are made. As noble Lords have pointed out, this is a rule that applies throughout the common law systems and in most jurisdictions where the rule of law prevails. We move from it at our peril.
Lord Cooke of Thorndon: I had not intended to speak on Part 10 because I am sympathetic to what one might call the "DNA aspect" of the proposed changes. But the remarks of a constellation of distinguished speakers today have led me to think that the clauses may not be tightly enough drafted.
I suggest to the noble and learned Lord the Attorney-General that if the possibility of retrial was limited to new and compelling scientific evidence that was not and could not reasonably have been available at the time of the earlier trial, that might go far towards making the proposed changes more acceptable.
Perhaps, also, bearing in mind what has been said by the noble and learned Lord, Lord Lloyd of Berwick, the question of retrospectivity requires further consideration. For myself, I regard that as a difficult question on which, possibly like others, I will retain an open mind.
Viscount Colville of Culross: This debate has turned into a general discussion about Part 10. I have great sympathy with the noble Baroness, Lady Kennedy, in seeking a method whereby she could discuss it. I have only one short point for my noble and learned friend Lord Lloyd. Even if his amendment were to be passed, it would do nothing to cure the situation in the future. The situations mentioned by the noble Baroness and the noble and learned Lord, Lord Mayhew, will occur when convictions take place after this legislation is in force, even if it is not retrospective, because the same situations will occur some years hence and there will be exactly the same anticipation and disquiet among those who think that they have been acquitted. Therefore, the issues raised go to the entire point of double jeopardy rather than against retrospectivity.
Lord Lucas: It seems to me that subsection (6) is essential to the Bill. It is only when you look at those few cases of manifest injustice which have occurred over the past 25 years that it is possible for any sane man to think that this is a fair provision. It is only when you focus on that individual pain and allow the rest of your common sense to be excluded that it is possible to think that the injustices which will be done by this provision in any way come close to, let alone are outweighed by, the benefits which this provision will bring.
The situation is exactly as the noble Baroness, Lady Kennedy of The Shaws, has said. We will regret passing this provision from the moment we pass it. It will, as the noble Lord, Lord Thomas of Gresford, said, open up a whole Pandora's box of years of past misery by people whose friends or relations or children have been murdered and who believe that they know who did it or that the person who has been acquited really did it and there is something that was not properly considered at the time. It will open up endless bitterness; it will be food and drink to the media, who will be able to run all sorts of operations to make people who have been acquitted and anyone associated with the trial miserable.
The costs of doing this are enormous in terms of human misery. The benefits are certainly tangible and important, but they do not outweigh the costs. The present rule is prevalent in so many systems, long-lasting and well respected. That is for a reason. It is because whenever people have allowed themselves the space and the rationality, they have concluded that that is the right balance. When so many societies with different outlooks and points of view have reached that conclusion, it is one that we ought to respect. I hope that my Front Bench will respect it too. Sometimes I think they share instincts of the present Home Secretary—they certainly did when we were last in power. I very much hope they have changed their mind.
Lord Brittan of Spennithorne: The remarks that have just been made have brought me to my feet. It is worth remembering that these ancient protections have not existed accidentally and have not survived for so long as to be ancient protections for no good reason. They have survived for so long precisely because they have stood the test of time and been a hallmark of a civilised society which is not moved by populist concerns to do what seems cheap and easy and popular because of particular cases which have come to notoriety. The ability to resist pressures arising from such cases is one of the hallmarks of a civilised society.
My noble friend referred to the previous administration and the proclivities of the present Government. In considering a proposal of this kind, one is minded to ask whether it is appropriate to give this Government the benefit of the doubt on the basis that, if a credible case can be made, they should be supported in the interests of justice. However, the number of provisions in the Bill that offend previous principles that have lasted for centuries, such as the one that we are discussing, are so numerous that the Government have lost the right to the benefit of doubt.
As a former Home Secretary, I have to say that if I had dared to introduce a quarter of the provisions in this Bill, which go against the traditions of fairness and criminal justice, I would have been torn limb from limb by those on the opposite Benches—and they would have been right to do it. I regard the Bill as containing a number of provisions that are an affront to justice and to civilisation, and this is one of them.
5.30 p.m.
Lord Brennan: In a debate of such importance, metaphorical self-evisceration is not helpful. The debate must surely be conducted on a serious basis. This part of the Bill seeks in a limited form to reflect the sense of justice of the community.
Let me put a contrast to the Committee. If we consider it just that someone who has been in prison for 15 or 20 years should be released because DNA evidence shows that person to be innocent and another person to be guilty, that accords with the sense of justice of our community. The innocent have been set free. We had an example of that only the other day, with the three people from Cardiff who were released and acquitted and the real murderer subsequently convicted because of DNA. That represents a sense of justice We might compare with that the case of a person who has been acquitted of murder 15 or 20 years ago, when DNA evidence shows that person in fact to have committed the murder. I do not believe that the community would say that it was just to let that person avoid a retrial and possible conviction under these provisions. Indeed, the sense of justice will be stretched in the extreme if we legislate to release the innocent but legislate to protect the guilty.
That practical state of affairs is what the ordinary person in the street will have in mind. The value of double jeopardy as a protection between the citizen and an overbearing state or prosecutor is absolutely fundamental and well established. The proposals in principle will not denigrate or destroy that protection, subject to two considerations.
The noble and learned Lord, Lord Bingham, the present senior Law Lord, closed one of his excellent lectures on justice by quoting from a decision of the Court of Appeal in Mattan. That was the case of a man who had been hanged 50 years ago whose conviction was posthumously overturned. I shall paraphrase the end of the judgment, quoted by the noble and learned Lord. It said that the instance indicated the absolute need for integrity by all those involved in the prosecuting process.
When we look to how the change in double jeopardy should be properly controlled, the first control must be absolute integrity by all those concerned in the prosecution at the time, as well as at the second attempt.
The second control must surely be the Court of Appeal Criminal Division. The wording that we shall have to consider, properly interpreted, gives that court very strong powers indeed to avoid sending back for trial unmeritorious attempts to reopen cases. The tenor of the statutory language that we are considering is that the measure is for wholly exceptional cases.
I apologise to the Committee for not being present earlier but I know from conversation with him the opinion that the noble Lord, Lord Neill of Bladen, expressed about the dangers. I mentioned that the two precautions of integrity and strong appellate control are essential.
In expressing my general support for the principle I want to close by inviting my fellow lawyers in this Chamber, in so far as it is intellectually possible—this is difficult for us because of our training and our upbringing—to look at the matter as if we were citizens in the context which I first described in opening these remarks. I do not think that anyone could condemn what I imagine to be the majority of ordinary reasonable citizens who would say that this limited change to double jeopardy, especially when scientifically justified, reflects our sense of justice.
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