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Lord Clinton-Davis: My Lords, I, too, support the amendment. The case made by the noble and learned Lord, Lord Lloyd of Berwick, is persuasive, compelling and unanswerable. From the point of view of those who
subscribe to the view that civil liberties matter, it is important that this clause, or this part of the clause, should be disapplied.I want to know from my noble and learned friend what he believes is the correct construction of Article 7 of the appropriate convention. What effect would he say it has? In my view, the case that has been put against the provision is totally unanswerable. As the clause is drafted, the police are put in a position which, while they may want it, is not in accordance with the civil liberties that I have advanced. The noble and learned Lord has prescribed making the offence prospective, which is entirely in accordance with common sense. I hope that my noble and learned friend the Attorney-General will conclude that what is proposed here is sensible and right.
Lord Mayhew of Twysden: My Lords, I should like to focus a little more closely on the practical consequences of leaving in subsection (6). I support the amendment.
Two principles are engaged, in addition to the broad principle on which the noble and learned Lord, Lord Lloyd of Berwick, has based his amendment. The first principle is that public faith, once pledged, should not be broken. The second is that legitimate expectations that have been occasioned by government action or the action of Parliament should not be frustrated. Those are two important principles which I have always understood that successive governments have sought to apply. The second is an application of the first, and is one of the fundamental criteria for judicial review.
Lest it be thought that no practical circumstances are engaged here and that it is all a matter of constitutional or jurisprudential nicety, I suggest the following case. If I commit an offence, I am entitled to suppose that, once acquitted, that is going to be that. Having got the little problem of the prosecution out of the way, I am perfectly entitled to suppose that that will be it and that I can make my arrangements for housing, employment and my finances accordingly. Now it is proposed that a second bite of the cherry shall, in some circumstances, be allowed the prosecution. Those expectations, on the basis of which I have changed and perhaps worsened my position, will be frustrated. That is the practical consequence of what is achieved by the subsection. To avoid it is the very proper purpose of the amendment, which I support.
Baroness Kennedy of The Shaws: My Lords, as your Lordships know, I take a position against any interference with the rule against double jeopardy. We shall meet that in the fullness of time. However, I want to support the amendment as a position short of that.
Of course, we understand that there should be cold-case reviews now that DNA evidence has developed—and the science of DNA has developed. It should be possible to go back and look at samples taken from scenes of crime and perhaps find a culprit.
It is very different to have cold acquittal reviews. I suspect that once the measure is passed, there will be every temptation for police officers to remember cases
in which they were involved and decide to revisit them in the hope that they may secure a different result. In practical terms, it is not a proper use of the prosecution authorities and the investigative powers of the police given that the police fall short in obtaining convictions on the cases currently going through the system. There is only a 25 per cent success rate in securing convictions against all the crime that takes place. So that is not a good use of the resources of our police and prosecuting authorities.However, there is something much worse than that. We live in a society of which I feel very proud because it protects liberties—or it has done. People who are still alive who have been acquitted of serious crime—properly acquitted; we are not only discussing the guilty but the innocent—will fear the hand on the shoulder, the terror that is created by not allowing people to have a fresh start after an acquittal, the finality that has been part of our system. The feeling that when you leave a court, it is over and you rebuild your life is now stopped in its tracks.
We are creating conditional acquittals, a conditional form of verdict, not the proper verdict with which we have always lived. That is what is so terrible about the provision. The explanation given by my noble and learned friend the Attorney-General was that he had met the mother of a victim of murder whose killer had confessed, having been previously acquitted. He asked, "How could I ever look that mother in the face again?" I, too, know how awful it is when one is confronted with victims who have experienced terrible pain, but we must have peace for all of us.
In our society, we must sometimes make rules that do not deal with the individual pain for people such as Mrs Ming. I know that the amendment will not give peace to her, but it will mean giving peace to the many people who have until now been acquitted. That is why I support the amendment; that is also why I think that the whole business of taking away the rule is so wrong. The principle has been there for good reason, so I support the noble and learned Lord, Lord Lloyd. I hope that he will be persuaded to support other subsequent amendments, which deal with gross interference with a principle that is there because it is part of the glue, cement and security for people that the state cannot again come and put its hand on their shoulder.
There are now rumours afoot that Winston Silcott, released from custody on parole last week, is one person on the list to which the noble and learned Lord, Lord Lloyd, referred. I am concerned that we shall create victimisation of a kind that we should not know in our country.
Lord Judd: My Lords, it is always extremely daunting for someone who is not a member of the legal profession to intervene in a debate such as this, but I have been trying to follow the deliberations on the Bill. In many ways, I am sorry that we have been denied the much fuller debate that we were anticipating earlier this afternoon. I wanted to participate in that debate,
but I must not stretch the rules of the House by trying to introduce my comments by the back door. The noble Lord the Liberal Chief Whip shakes his head firmly at me.However, it is in order to make two points, because they could be made about many amendments. The first is that, as the Bill has proceeded, I have become more and more profoundly disturbed. I see the issue addressed by the amendment not only as an issue in itself but as symptomatic of what is at fault in the Bill as a whole. I am disturbed because it has become clear that the Bill will change the whole culture of our nation.
Fundamental to the life of this nation—I say this as a layman in legal matters—has been the principle that you are innocent unless you are proved guilty. If you are declared not guilty in a case, you are then innocent. The right reverend Prelate the Bishop of Worcester made an important intervention during the Minister's summing up yesterday about a new category of citizenship that was being introduced in a sort of netherland.
I therefore emphasise that, exactly as my noble friend Lady Kennedy of The Shaws said, among many people who thought that the matter had been settled in the court, there will be that fear of the hand on the shoulder. She is absolutely right.
Because I am a layman, I live perhaps more in the real world out there than do others who are totally preoccupied with the niceties of the law. I live in a world that is increasingly dominated by the media. If much of the media were unconvinced by a verdict that had been properly reached in the court, the media would find a way of hounding and pursuing the person whom they believed was guilty for months and years ahead. I believe that this legislation will open still wider the door to that type of persecution by the media.
Those considerations are basic to my position. I turn to the specifics of this amendment, which I applaud and welcome. As an ordinary citizen, I have always seen another principle as fundamental to our way of life—the principle that we do not have retrospective legislation in the United Kingdom. That is simply a fundamental matter of principle and the amendment is right to address it.
I say to my noble friends on the Front Bench that of course I understand the pressures under which the Government are operating. Of course I understand the sophisticated crime with which they are now confronted, the terrorism and all the rest. However, what worries me is that we should not inadvertently give a victory to the terrorists who are trying to destroy the very society we are trying to protect. We should not give a victory to the organised crime that is trying to put our legal system under pressure by actually beginning to erode the society and the values of the society that we feel to be so important. I am deeply grateful that this amendment has been moved and I fully support it.
5.45 p.m.
Viscount Colville of Culross: My Lords, I hope that the noble and learned Lord, Lord Goldsmith, can help the House on the question of Article 7 of the European convention. It is not just about retrospective legislation creating offences that did not exist at the time when the action took place. It also deals, under the jurisdiction of the Strasbourg court, with foreseeability and clarity of legislation for everyone to understand. I can very well see that it would be perfectly proper under that provision to introduce this sort of subsection as a prospective matter. Everyone would then know that it would be perfectly possible to reopen the matter and, if new scientific evidence or something like that turned up, they would again be at risk.
What I think is very difficult is that, because of all the rules that we have about autrefois acquit, no one could possibly have anticipated that, whatever evidence turned up, they would be retried for the same offence. Such a provision has now been put in. It is not just the retrospectivity; it is the foreseeability and the clarity of the law, which is all part of Article 7. I do not understand how this can possibly conform with the European convention.
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