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The Lord Bishop of Chester: I have been most impressed by the speeches during the past hour. They have shown this Chamber at its very best. I hope that I may from an entirely lay perspective offer a word of support to the noble Lord, Lord Brennan. I was brought up with the principle that justice must be done and must be seen to be done. What must be seen to be done is, in a sense, culturally relative and changes over time.

Provided the restrictions are drawn tightly—probably more tightly than in Clause 72—to make it clear that the evidence should be scientifically compelling, and not just compelling in a more general sense, the exception that proves the rule could uphold the principle of double jeopardy while allowing for exceptional circumstances. If that is not the case, the danger is that one brings the whole process of the administration of law into a certain disrepute because of the media attention which is given to the exception. So, provided Clause 72, and other relevant clauses, could be drawn more tightly, I personally would be willing to accept the measure, but with a heavy heart for all the reasons which Members of the Committee have given so impressively over the past hour or so.

Baroness Anelay of St Johns: The debate of the past 50 minutes has shown that the Bill is not a seamless whole as a Criminal Justice Bill but a portfolio Bill of a significant number of stand-alone changes to our criminal justice system, some of which receive wholehearted support. However, others, such as the one we are discussing, spark very deep concerns, and sometimes for different reasons among different groups within this Chamber and elsewhere.

I and my colleagues in another place have considered all these matters, as we have other parts of the Bill, very deeply. Indeed, I believe that our feelings echo very closely those that have just been expressed by the right reverend Prelate the Bishop of Chester.

I turn to the difficulties we face when we consider whether we should accept the relaxation of double jeopardy as a principle—a principle that my noble friend Lord Brittan said is ages old. If we accept that relaxation, which we on these Benches have, we then immediately pose ourselves the very difficult next step of what to do about retrospectivity. As soon as one relaxes the principle of double jeopardy, one builds in the effect of retrospectivity in the future. As the noble Baroness, Lady Kennedy of The Shaws, said so poignantly and so graphically, every person has to face the tap on the shoulder.

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In accepting the fact that there should be a relaxation of double jeopardy as a principle, I do not underestimate the pain and the fear that will be felt by some. As the right reverend Prelate hinted, what is important is that pain and fear should be felt only by those who are guilty. That is why I think it is our duty to ensure that the rules within Part 10 are so closely and carefully drawn that we do not throw to the wolves of the tabloid press people who should not face retrial.

I, too, have reflected on the more general nature of the debate. The noble and learned Lord very properly directed us to whether subsection (6) should be deleted. I have a confession to make to him. I did not overlook the matter; an amendment was tabled in another place by my honourable friend Dominic Grieve, with the purpose of trying to probe what we as a Parliament were letting ourselves in for if we were to go down that route. We went through the painful and difficult decisions referred to by the right reverend Prelate and decided that we would accept double jeopardy, but with close restrictions.

Therefore, on this very rare occasion I do not agree with the noble and learned Lord, and I hope that it remains a rare occasion. However, I shall certainly try to ensure that Part 10 does not proceed in its current and unamended form, because the safeguards are not there at the moment to allow subsection (6) loose on the country.

Lord Goldsmith: My noble friend Lord Clinton-Davis invited me to consider that the points made today were not lightly made. I entirely accept that, and would never have thought otherwise. I entirely agree with those who have said that there are difficult choices to be made. The Government have considered those. I am sorry that my noble friend Lady Kennedy of The Shaws attributes this part of the Bill to the Government's desire to achieve quick credit. That is not how I see it at all. I see it as a provision to provide justice in exceptional cases where justice has not been done, and to protect others.

We have not focused on protecting others today. If, for example, we know that there is a man walking the streets who has been guilty of serious crimes, and whose DNA we did not have then but have now, and if we could prosecute him now although he was acquitted before, we could get him off the streets and protect other people's daughters and children. That is a step that we have to think long and hard about before we say that we will not take it.

Baroness Kennedy of The Shaws: I share that sense of outrage at the possibility of someone walking free when new science provides us with a remedy. Why, therefore, have the Government not confined themselves in this part of the Bill to DNA and scientific breakthrough?

Lord Goldsmith: I will come to that, but I shall deal with the principle in my own order.

The Government have been persuaded that it is necessary to make a limited exception to what the noble Lord, Lord Neill of Bladen, describes as an age-old principle and a rule that is centuries old. I am glad

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to have support not only from those on the Opposition Front Bench and—as I understand it, although I may not have understood it correctly—on the Liberal Democrat Front Bench, but from the noble Lord, Lord Brennan, in a powerful and important speech, and the right reverend Prelate the Bishop of Chester. I am grateful to the noble and learned Lord, Lord Cooke of Thorndon, for indicating that he also has been sympathetic to the principle, although he wants to consider the precise details, which I understand. I am also grateful to the noble and learned Lord, Lord Lloyd of Berwick, for his agreement that there should be a limited exception.

Those are not the only people who have taken the view that this is the right thing to do. The Law Commission supported the change. Lord Justice Auld in his report, Lord Macpherson in his report on the Lawrence case, and the Home Affairs Select Committee have all agreed with the principle of change. I am glad that the amendment has allowed us to air some of the issues of principle. I will deal with certain of the points that have been made, but I will not shrink from saying that, difficult though the issues are, it is right to make the change.

The noble Lord, Lord Neill of Bladen, said that it is a centuries-old rule. Yes, it is. Not for the first time this week, a Minister at the Dispatch Box is saying that that does not necessarily mean that it is right for all time. The evidence is there and the case has been made for this limited exception.

I do not agree with the assertion of my noble friend Lady Kennedy of The Shaws that no other country has a different rule. The annexe to the Law Commission report indicates—I have it in front of me—that that is the case, for example, in Denmark. Protocol 7, Article 4 of the European Convention, from which the noble Lord, Lord Neill of Bladen, read, indicates that it is accepted in the Council of Europe that there may be exceptions to the principle of double jeopardy, no doubt because there are countries that adhere to it.

Equally, I recognise—and it is always the case where there is a balance to be struck—that, to use the words of the noble Lord, Lord Lucas, there are implications of pain for some. I accept that there are certain risks attached. The noble Lord, Lord Neill of Bladen, referred to the risk of being hounded by the press, but went on, from his experience as Chairman of the Press Complaints Commission, to answer that point by recognising, as we all know, that that happens already, even without any such rule. The press is inquisitive and roots out injustice in all sorts of ways. I recognise that the provision carries a price, but it is a price worth paying, because of the justice that it will bring about.

I will deal briefly with the point that he made—

Earl Russell: If the noble and learned Lord is relying on DNA for his justification, as he did at the beginning of his speech, that is a temporary problem because it is a new technique. Why not, then, make the Bill what

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our ancestors used to call "a probationer" and insert its own sunset clause in the provision? If the need is temporary, so should be the change in the rule.

Lord Goldsmith: I thank the noble Earl for his intervention. I do not restrict my case to DNA and I will come to a striking example that does not depend one little bit on DNA, but where I will challenge noble Lords to say that they do not see the cry for justice contained therein. I will come to that in a few moments.

DNA is a new technique. As other noble Lords have said, fingerprinting was a new technique once upon a time and, no doubt, we will see further new techniques in the future. Therefore, if we are to have the provision at all, as we believe we should, let it cover all of those cases.

I shall deal briefly with the point raised by the noble Lord, Lord Neill of Bladen, on a European matter. I hesitate today to go into any substantive issue relating to the draft Convention on the Future of Europe, which has been produced by President Giscard d'Estaing and to the intergovernmental conference, which is about to take place. However, I do know something about the European Charter of Fundamental Rights to which he referred as I was one of its negotiators. I know that it contains provisions that make it clear that where there are clauses—such as the one to which the noble Lord referred— which relate to the European Convention on Human Rights they have the same meanings, and include the same exceptions. I also know that that charter is not directed at what countries do within their own national competencies. It is directed, as its clauses make clear, to what is done by the Union's institutions or by member states when they are acting as agents. I do not regard that as a reason against these provisions.

My noble friend Lord Brennan put the matter very well when he referred to the sense of justice that the citizen and community would have. He said that we must not be seen to be legislating to protect the guilty. With the safeguards that are built into the Bill—and we will come to consider their detail—that is what we would be doing if we declined to carry through this provision and its retrospectivity.

We have moved a little towards a Second Reading or clause stand part debate. I make no complaint about that—indeed, I encouraged it. But it is worth remembering the safeguards that have been built in. They include retrials only for the most serious criminal offences. We will have to come back to exactly where the right judgment is to be drawn in relation to that and I shall not be drawn into that issue now. I know that it is an important issue and I look forward to listening carefully to what is said about the current list. There may be only one retrial. Any reinvestigation must be authorised personally by the Director of Public Prosecutions.

I thank my noble friend Lord Brennan for referring to the need for integrity of all those involved. That is something which as Minister responsible for the director and for the Crown Prosecution Service I hold

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very dear. It must be subject to the decision of the Court of Appeal—my noble friend's second condition. I agree entirely with him that the clause provides strong powers to send back unmeritorious cases. I refer to one of those and we will come later to the detail. I draw particular attention to the requirement that the evidence, to be compelling, must appear "highly probative" of the case against the acquitted person. There are other conditions, too; not just a bit of evidence or something which might have changed, but something which is highly probative of the case against the acquitted person.

Then, too, the interests of justice must be considered. Those will be an important safeguard. Reporting restrictions are also included so as to avoid the risk, so far as one can, that someone will be tried ultimately by the press rather than by a court seized properly of the matter.

Let me turn to retrospectivity. If one accepts that the principle of change is right—it is right to have a limited exception, subject to safeguards—I see no argument for saying that it should apply to cases only after the legislation comes into force. I will develop the reasons, but I respectfully note that those noble Lords, including the noble Viscount, Lord Colville of Culross, who said that the points that have been made are not assisted by making the provision not retrospective are right. None of the concerns expressed by the noble Lord, Lord Neill of Bladen and my noble friend Lady Kennedy of The Shaws, is dealt with by making it not retrospective.

Being not retrospective deals with one point and one point only. It is the example that the noble and learned Lord, Lord Lloyd of Berwick, gave; the example of someone acquitted of one of the less serious offences. But the principle must be the same. Let us assume that it is someone who has been acquitted of murder and who later confesses to someone of that murder—whether to a wife or someone else—who then goes to give that evidence. I respectfully beg to differ from him. If someone has been guilty of a murder, has confessed to that murder and has chosen to do that, I am not sure that I can agree with the noble and learned Lord that that person should be allowed to sleep easy in his bed.

I now turn to the specific example that I wanted to mention. It has been mentioned already but it is important to have regard to it because it also answers the point raised by the noble Earl, Lord Russell, and the noble and learned Lord, Lord Cooke of Thorndon, as to whether we should restrict this matter to DNA evidence. I refer to the case of Mrs Ann Ming, whom I and other noble Lords met the other day. She is the mother of Julie Hogg.

For those who do not know the story, we listened to Mrs Ming explain how, after the police had spent weeks looking for her daughter and told her that she must have gone off to start a new life, she went to the flat where her daughter had been living and discovered her decomposing body behind the bath panel. She then saw a man tried twice for the murder of her daughter. On each occasion, the jury was unable to reach a

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verdict and so he was acquitted. Within weeks, he was boasting in public houses that he had got away with the perfect murder. Some years later, he confessed to the murder and, when on trial for perjury, he confessed in court. I want to read from Mrs Ming's words. She said:

    "His defence barrister says in court Dunlop"—

that is his name—

    "has made 'British legal history', being the first person to have been acquitted of murder then later to confess 'in court'. If this is the case, there are no guidelines, no test case, so please set a precedent with this case. Change the 'double jeopardy' law. Make it retrospective and, instead of criminals like Dunlop making a complete mockery of the British justice system, let Dunlop and others be brought to justice for the crime he has confessed to, not just for lying in court for this horrendous crime".

She says:

    "I will challenge any civil liberties group about 'human rights'. Our daughter had a right to life. Dunlop took this from her. We have a right for justice for Julie and the only way for us and other families to obtain justice is to change the 'double jeopardy' law retrospectively".

I respectfully say to the noble and learned Lord, Lord Lloyd of Berwick, that if, as I believe is right, we make a limited exception to double jeopardy, I could not look Mrs Ming in the face and say, "This will not apply to a case like this". I could not look her in the face and say, "This applies only where there is scientific evidence, but not where someone has confessed several times and in court". I would have to say to her, "Of course, he committed the offence before. It was against the law then. We are not changing the law retrospectively. What he did was a crime then. He should be punished for the crime now". I could not say that the provision would apply only in the future. I resist the amendment.

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