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Lord Kingsland: My Lords, this is a separate group. I am perfectly happy to respond to anything the noble and learned Lord the Attorney-General may wish to say about this block of amendments. However, if I

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were in his shoes—he may consider that an impertinent remark to make but, nevertheless, I shall continue—I would consider that, if I had lost the case on terminating decisions by a trial judge, my case would have been even weaker on evidentiary decisions which were not terminating.

Lord Goldsmith: My Lords, one of the difficulties is that we have not heard what other concerns noble Lords have over and above the point on equality of arms, which I accept was debated in the previous grouping. In the light of the noble Lord indicating that he takes the view that the case of principle to take prosecuting rights of appeal out of the Bill is made—I take the view that that is what the Opposition have achieved and that they will have to live with the consequences—it is perhaps better that I do not move the government amendments.

[Amendment No. 111 not moved.]

[Amendments Nos. 112 to 116, as amendments to Amendment No. 111, not moved.]

[Amendment No. 116A not moved.]

[Amendment No. 117 not moved.]

[Amendments Nos. 118 and 119, as amendments to Amendment No. 117, not moved.]

[Amendment No. 120 not moved.]

[Amendment No. 121, as an amendment to Amendment No. 120, not moved.]

[Amendment No. 122 not moved.]

[Amendment No. 123, as an amendment to Amendment No. 122, not moved.]

[Amendment No. 124 not moved.]

Clause 57 [Restrictions on reporting]:

[Amendments Nos. 125 to 137 not moved.]

Lord Bassam of Brighton: My Lords, I suggest that we now adjourn during pleasure. There is a great deal of confusion as to where we stand in the Bill, Amendment No. 70 having been agreed to. It would be for the benefit of the House if we had a five or 10 minute adjournment to allow noble Lords opposite to discuss with noble Lords on our side of the House, the Ministers and perhaps officials, to ascertain exactly where we are and where we will have to go.

Baroness Anelay of St Johns: My Lords, I have discussed this issue with noble Lords on this side of the House. We need to find a way whereby there can be discussions, not only today on the detail of the procedure but also between now and Third Reading, as a matter of urgency, to ensure that the plans for prosecution appeals that can be agreed by the whole House are brought forward expeditiously. Certainly, in the mean time, we agree with the proposition of the noble Lord, Lord Bassam.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness. It would be most helpful to have brief discussions now and discussions between now

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and Third Reading on how we can take these matters forward. I beg to move that the House do now adjourn during pleasure until 5.20 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 5.9 to 5.20 p.m.]

Lord Goldsmith moved Amendment No. 138:

    After Clause 58, insert the following new clause—

(1) Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.
(2) Without limiting subsection (1), rules of court may in particular make provision—
(a) for time limits which are to apply in connection with any provisions of this Part,
(b) as to procedures to be applied in connection with this Part,
(c) enabling a single judge of the Court of Appeal to give leave to appeal under this Part or to exercise the power of the Court of Appeal under section 49(8).
(3) Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court."

The noble and learned Lord said: My Lords, this amendment would insert a new clause enabling rules of court to be made for the sole purpose of this part of the Bill. As the new drafting which the Government wanted has not been accepted by your Lordships, the existing provisions remain on the face of the Bill and it is important, while those provisions remain, for there to be rules of court. The amendment simply provides enabling powers, and I hope that noble Lords will agree that it is sensible to have at least this provision, which enables rules of court to be made. I beg to move.

Lord Kingsland: My Lords, we, for our part, are delighted to support the Government on this new clause.

On Question, amendment agreed to.

Clause 59 [Interpretation of Part 8]:

[Amendments Nos. 139 to 142 not moved.]

Clause 60 [Cases that may be retried]:

Lord Lloyd of Berwick moved Amendment No. 143:

    Page 40, line 35, leave out subsection (6).

The noble and learned Lord said: My Lords, we now come to another important part of the Bill relating to the rule against double jeopardy. The purpose of my amendment is to remove Clause 60(6), which would make Part 9 of the Bill retrospective. The amendment raises a very short point—it is not, happily, a lawyer's point. It involves what is, to my mind, simply a question of elementary justice.

The amendment is independent of the other amendments which will be moved under this part of the Bill. Perhaps more importantly, it is independent of whether one is for or against the rule against double jeopardy.

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On the one hand, we heard very powerful speeches in Committee from the noble Lord, Lord Neill of Bladen, and the noble Baroness, Lady Kennedy of The Shaws, in favour of retaining the existing rule against double jeopardy. No doubt we will hear further powerful speeches later on this evening. On the other hand, we heard a powerful speech from the noble Lord, Lord Brennan, against the current rule.

My provisional view is that the Government have made out a case, on balance, for some relaxation of the rule against double jeopardy, but I could still be persuaded the other way. However, the Government have not begun, in my opinion, to make out a case that any change in the law should be made retrospective.

It is a fundamental rule of English law, stated in all the leading textbooks, that statutes should never be given a retrospective effect unless no other construction is possible. The reason for that universal rule—it is not just a rule in England but applies, so far as I know, throughout the common law world—is clear. It is so obviously unjust to take away a man's rights, or to create new liabilities with retrospective effect that Parliament cannot have so intended unless it has specifically said so.

What is true of judges in construing Acts of Parliament must also, I suggest, be true for us when passing Acts of Parliament. We must make sure that in curing injustices, we do not create other injustices. That is what we shall be doing if we allow Clause 60(6) to stand. That is what makes this amendment different from the other amendments and, I suggest, makes it one that ought to be acceptable to all sides of the House—those who approve of the rule against double jeopardy, those who disapprove, and even those, if I may say so, who have done some kind of a deal between the Front Benches regarding the way in which this matter is dealt with. I suggest that the retrospectivity argument overrides all the other arguments in respect of Part 9.

Let me take an example of what I have in mind from another part of the Bill. Clause 265 provides for a minimum sentence of five years for certain firearms offences. Let us suppose that I had committed a firearms offence but had not yet been tried when this Act comes into force. Would anybody argue—would anybody dare argue—that I ought to be subject to the minimum of five years' imprisonment when I committed my offence at a time when there was no such rule? The answer is, of course not. It would be grossly unjust and the Government have not even attempted to make Clause 265 retrospective. If they had, it would not have lasted for half an hour because it would have been plainly contrary to Article 7 of the convention.

What I have said about Clause 265 applies equally to Clause 60. Let us further suppose I had committed some serious offence five years ago. I had a right, under the law, to be tried by judge and jury. I had a right, under the law as it then existed, that, if acquitted, I would never be tried again for that offence. To deprive me of that existing right by changing the law now seems to be a gross injustice.

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There is here an important question of principle which arises, I repeat, whether or not we are in favour of Part 9. It arises because of the dislike of this House of retrospective legislation of any kind. It is not confined to retrospective legislation creating a new offence—the rule is far wider than that. But, as I have said, if subsection (6) is allowed to stand, a man who has, in a layman's eyes, been declared innocent by the court and by the jury when he has been acquitted could, as a result of Part 9, be convicted. That seems to me to be the plainest injustice.

Involving as it does a question of principle, I had expected that when the noble and learned Lord the Attorney-General came to reply at Committee stage, he would deal with the point of principle. However, I was disappointed. He did not attempt to answer the question of principle that I have outlined; he gave only an example of someone—a mother, I believe it was—who he said he would not be able to look in the face again if Part 9 were not made retrospective. That prompted the noble Earl, Lord Russell, to ask whether we were not in danger of legislating to meet a particular case. The noble and learned Lord replied that he had more than one case in mind.

The noble Earl, Lord Russell, was absolutely right. I have no doubt that even now the police have a list of those whom they would like to be tried again because they believe that they were wrongly acquitted. I suspect that that list may contain perhaps a dozen names, and I should not be surprised if it were actually in the possession of the Home Office. Of course, I do not forget the victims—we must never forget the victims—but we must remember that those who have committed crimes also have their rights.

By all means let us make Part 9 prospective; that should give the Government all they want. But to include a provision for the purpose of catching men and women on that list of people who have already been acquitted is to my mind profoundly shocking. I beg to move.

5.30 p.m.

Lord Renton: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, has made an overwhelming case for preventing the retrospective effect of Clause 60. The clause is controversial and, in my opinion, bad enough as it is, but to go and make it retrospective is contrary to the fundamental principles of justice in English law. I cannot understand how the Government got themselves into this position.

I would hope that, in view of the very strong case made by the noble and learned Lord, we can quickly dispose of subsection (6), which would enable a retrial to take place after a person has already been acquitted. To do so in a case that is entirely retrospective is even more wicked. I hope that the Government will see that and agree with the amendment.

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