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Earl Russell: Before the noble and learned Lord sits down, does he see risks in making law for a single case?

Lord Goldsmith: I am not proposing the making of law for a single case. I have identified a striking case, which some noble Lords, as did I, had the opportunity of hearing about directly. It is a matter to which the noble Lord, Lord Brennan, refers, and which society considers to be justice. Only a few cases will be affected because they will be exceptional. I believe that the Director of Public Prosecutions said to the Home Affairs Select Committee that he would be surprised if there were more than a few cases. They are exceptional cases which cry out for justice, just as, fortunately, we have only a few cases which cry out for justice the other way.

Lord Lucas: I was very disturbed by what the noble and learned Lord said by way of illustration. He asked us to imagine that someone is tried and acquitted of murder and that several years later we obtain his DNA. We then know that he is guilty, and this guilty man is wandering the streets. I believe that that is a complete misunderstanding of DNA evidence but not one that I would expect a tabloid newspaper to avoid. I would expect exactly that kind of misstatement to be

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trumpeted in the tabloids—that is, that someone is wandering around with his DNA "found at the scene" or found on an object and therefore he is guilty.

DNA can provide absolute proof of innocence but it cannot provide proof of guilt. That is the case, first, because matching is not exact. A piece of DNA is cut into chunks with enzymes and we see how it comes out on a gel. We are not dealing with a complete sequence. So we are dealing with probabilities which are only in the millions and not in the thousands of millions. If we take the world as whole, it seems likely that quite a few people will have identical DNA.

DNA is also contained in many parts that we leave behind us in our passage through life, so it is easy—unlike a fingerprint—for it to turn up in places which might be inconvenient when it comes to an explanation. It may be very compelling evidence—and I understand that it is compelling evidence—but we cannot know that a man is guilty just on the basis that his DNA has been found at the scene until we have tried him. I was very disturbed that the noble and learned Lord, who understands a great deal, did not understand that.

6 p.m.

Lord Goldsmith: I take that as a question directed to me. The noble Lord will understand that precisely what the Government are proposing is that someone should be tried on all the evidence there is. The illustration I gave concerned identifying a piece of evidence that may make all the difference to a case. I am not suggesting that it is the only evidence available. Should we allow the situation in which we now know that there is compelling evidence that this person may be a great danger, but we can to do nothing about it until he strikes again?

Lord Lloyd of Berwick: The debate has gone far wider than my amendment. That is as it should be. The amendment has at least served that purpose. As noble Lords know, I do not go so far as my noble friend Lord Neill, the noble Baroness and other noble Lords in their feelings against Part 10 as a whole. For my part, I am in favour of a limited exception to the double jeopardy rule. We shall be exploring those limited exceptions, I hope, when we come to other amendments which have already been tabled and those which will no doubt be tabled in the future.

I come back to the purpose of the amendment. It was not meant to deal—to answer the point of the noble Viscount—with the kind of difficulties that have been raised in relation to Part 10 as a whole. It was intended to deal with a specific problem, about which I feel quite strongly. Any exception we make should apply only to those acquitted in the future, in respect of whom it may well serve a useful purpose in the interests of justice, and not to those who have been acquitted in the past and who have since lived in the belief that they could never be tried again. That is the point of the amendment.

I must say that I do not feel wholly satisfied by the way in which the noble and learned Lord the Attorney-General dealt with the point. He dealt with it only by

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giving an example from the opposite extreme to the one I gave. Somehow it is much better to exclude those cases altogether by saying that, "This shall not be retrospective"—that is what I mean by retrospection—and then to go ahead from there. I shall want to return to the matter at a later stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 69 agreed to.

Schedule 4 [Qualifying offences for purposes of Part 10]:

Baroness Anelay of St Johns moved Amendment No. 135:

Leave out Schedule 4 and insert the following new Schedule—

"SCHEDULE 4
Qualifying offences for purposes of part 10
Part 1
List of offences for England and Wales Murder

1. Murder.

Rape

2. An offence under section 1, 3, 6 or 7 of the Sexual Offences Act 2003. Genocide, crimes against humanity and war crimes

3. An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17).
Part 2
List for Northern Ireland Murder

4. Murder.

Rape

5. Rape.

Genocide crimes against humanity and war crimes

6. An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17).
Part 3
Supplementary
7. A reference in this Schedule to an enactment includes a reference to the enactment as enacted and as amended from time to time.

The noble Baroness said: Amendment No. 135 takes us to the subject of the limited exceptions, to which the noble and learned Lord, Lord Lloyd of Berwick, has just referred. It is grouped with Amendment No. 135ZA, tabled by the noble Lord, Lord Thomas of Gresford, which takes an even more limited approach than mine.

We turn to the difficult issue of which offences should be covered by the retrial provisions. The Government lists the offences in Schedule 4. As I have mentioned already, we feel that the range is far too large. It means that double jeopardy will not apply to a limited series of cases but to a range which is far too wide.

Why did the Government decide on that list? Why did they expand it during proceedings in another place? After all, the Law Commission recommended that only murder should be subject to the relaxation of double jeopardy. The argument for including murder is clearly that we should accept that someone who has a propensity to kill other people is a serious public menace. No doubt one reason that weighed heavily on

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the mind of the Law Commission was that there is an enormous public interest in ensuring that such people may never strike again.

We have tried to take a pragmatic approach to the matter. In Committee and on Report in another place, my honourable friends fully debated which offences should fall within the new rule relaxing double jeopardy. We have considered the matter further since those debates. I had the opportunity briefly to pass that information to the Attorney-General, which is reflected in the nature of our amendment.

We remain convinced that retrial should be permissible only in serious cases, but, as is evident from our amendment, we go further than the Law Commission. We say that Schedule 4 should be confined to murder, rape and genocide. We are trying to take into account the public interest question and address the most serious of offences. Also, from a purely practical point of view, it is essential that the police and prosecution are given the opportunity first to demonstrate that the new proposals work fairly and effectively before we even consider rolling out the abandonment of double jeopardy more generally.

As I said at the beginning of the Committee's proceedings today and in speaking to Amendment No. 133P, bringing a second prosecution will not be evidentially straightforward. Before we raise and then dash the hopes of victims and remaining relatives, we should ensure that the new proposals deliver both fairness and public benefit in the most heinous of offences only.

I have drafted the list of offences in the amendment to take the debate further than was possible in another place. In discussing the matter with my colleagues there, it became apparent that we would need to consider whether manslaughter should be added as a final item on the list. We are still considering that. I shall be interested to hear what the Attorney-General has to say in response to that—and, of course, the views of all other noble Lords.

Our underlying view is that the Government have not yet got the balance in Schedule 4—their shopping list—right. It is a recipe for failure and disappointment. That would simply be wrong—wrong for the public interest and wrong for all those who appear before the courts in future. I beg to move.

Lord Thomas of Gresford: I shall speak to Amendment No. 135ZA, which is grouped with the amendment moved by the noble Baroness. If there is to be any invasion of the principle of double jeopardy, it should go no further than that recommended by the Law Commission. Its report was published in March 2001 after two rounds of consultation. Why, if the Law Commission—which is supposed to advise the Government on criminal law matters—limited the proposal as it did, have the Government gone so much wider, with a list of 31 offences?

The Law Commission said:

"The approach we have decided to adopt is to see whether we can identify specific offences within the larger category of offences potentially attracting a life sentence which we believe are inherently serious enough to justify the application of a new evidence exception. We have come to the conclusion that under

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the present law the only such offence is murder. The main reason for this conclusion is the widespread perception, which we share, that murder is not just more serious than other offences but qualitatively different. The effect of this difference is that murder satisfies the test we have proposed for the scope of any new exception, namely whether a manifestly illegitimate acquittal sufficiently damages the reputation of the criminal justice system so as to justify overriding the rule against double jeopardy".

Those are the Law Commission's views. We do not think that the Government should go beyond them, if the rule is to be breached at all. Consequently, our amendments are limited to murder, soliciting murder—conspiring in soliciting murder—and genocide; that is, murder on a large scale.

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