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Baroness Whitaker: My Lords, I rise with some timidity in a debate which has been almost entirely undertaken by lawyers. That is the reason that I did not take part at Committee stage, although I did listen to all of it and I reflected. Having reflected, I would like to express some confusion about this amendment. To the non-lawyer, justice is first about the attribution of responsibility. That must come chronologically before questions of fair treatment for the perpetrator. When I sat as a magistrate or as a member of employment tribunals, it was the first question that people wanted answered.

Noble Lords who spoke for the amendment have placed other considerations before the attribution of responsibility such as not to hound someone more than once for the same crime and not to do so retrospectively.

Again, with great timidity I offer a layman's view of retrospectivity. It is right that a perpetrator should not be convicted if what he did was not considered a crime at the time he did it. But the offences in this connection are so serious that they have not only been held to be crimes for centuries; I think they would in most societies be marked as wrong by any reasonable person.

I also understand that to pursue an alleged perpetrator with fresh evidence once the closure of a judicial decision has been reached could be disproportionate; and worse, it could be abused by a vindictive or incompetent state. But for various crimes of violence, constrained fresh evidence would help in the attribution of responsibility.

Of course, guilty people have rights. That comes in sentencing, in the nature of the sanction applied, in treatment during the course of any sanction and after it is over. But to allow the interests of the perpetrator

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to go so far as to prevent the attribution of responsibility in the first place seems to me to be ultimately unjust. So I have great difficulty with the amendment.

Lord Corbett of Castle Vale: My Lords, I had the honour of chairing the Home Affairs Select Committee in another place, which was invited to consider the proposition that the law on double jeopardy should in certain narrow circumstances be changed. I have to say to your Lordships that every one of the criticisms and concerns that have been voiced on this issue in this Chamber this afternoon were expressed in the course of that inquiry.

I started from the point of view that I needed to be persuaded that the change was justified. That is where the committee ended up, I have to say. We started on the basis of two principles. The first is that it is the duty of our criminal justice system as best and fairly as it can to see that the guilty are convicted and that the innocent are acquitted. I believe that the question in front of your Lordships' House this afternoon in considering the amendment moved by the noble and learned Lord is whether it gives justice to the family or relatives of a victim where, following an acquittal, new and compelling evidence comes to light which, despite the rigour of the investigations, was not available at the first trial, and where the person who is acquitted of murder is able to go away scot-free even if—and I can think of two or three such cases—they have subsequently boasted of that. I think the answer to that is that people out there, victims and the relatives of victims, would think your Lordships' House had gone mad if it said that after a certain date that could happen but before that date it could not.

I certainly understand the fear of the hand on the shoulder referred to by my noble friend Lady Kennedy of The Shaws. However, I want those wrongly acquitted to feel the hand of justice on their shoulder where new and compelling evidence persuades the court to set aside the original acquittal, because that is what must happen, where the police have to demonstrate that they were not idle or negligent in the collation and the presentation of evidence at the first trial, and where it is in the public interest to order a second trial. Those are big hurdles. It is not simply a case of plod saying with respect to this or that person who was acquitted, "Let us have another go at this guy; we want him behind bars". It does not happen that way. Those are very stringent and important tests.

As I say, I believe that the measure would constitute a gross injustice. I defy anyone to explain the concept of an arbitrary date on a calendar to the relative of a victim and to explain that despite new and compelling evidence having been accepted by the courts to set aside the acquittal, someone with or without a wig may say, "Sorry about that, but the calendar is showing the wrong date". It simply does not make sense and I hope that your Lordships will accept that argument.

Lord Borrie: My Lords, I follow my noble friend Lord Corbett in two senses of the word. I am following him in that I am speaking after him and I also follow

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him in the trend of the argument. I was somewhat surprised that my noble friend Lord Clinton-Davis thought that the arguments of the noble and learned Lord, Lord Lloyd of Berwick, were unanswerable. I found them persuasive—it would be surprising if I did not find any arguments coming from the noble and learned Lord persuasive—but they did not give all the story, as it were. Perhaps one reason we have not had all the story from the noble and learned Lord, or those who follow his argument, is that we are dealing with this matter right at the beginning of this group of clauses. My noble friend Lord Corbett has done a service by emphasising that, with no retrospectivity at all, the set of clauses will include a requirement to demonstrate new and compelling evidence to justify any retrial and—I am not sure that he emphasised this—establish that it is in the interests of justice. I forget which clause mentions the interests of justice but that would cover, among other matters, the concern of the amendment, which is to deal with retrospectivity.

I am not one of those who thinks that, in every case that could come within the clauses, simply because the trial was in 2001 rather than 2004 there would be no hand on the shoulder. Therefore, I follow a great deal of the argument put by my noble friend Lord Corbett. Given what has to be established under the clauses to get a retrial, let alone the right of appeal if a retrial is granted, there are many safeguards. As subsection (6), with which the amendment deals, will apply to very few cases, we should not accept the amendment.

The Lord Bishop of Worcester: My Lords, I have been trying to work out whether it would be better to say nothing until the next debate. However, so many speeches have dwelled on the wider question of the clause that it is difficult to avoid the two issues coming together in our minds. The reason for that is that the principle of retrospection—looking back—is built into the whole subsection anyway. Much said by the noble and learned Lord, Lord Lloyd of Berwick, applies to that.

I want to speak directly on the last two contributions. I hope that the House will forgive me if, as a layperson in matters legal, I speak somewhat personally. In the book of Anglican martyrs in Canterbury Cathedral is the name of Jonathan Daniels, a friend and fellow student of mine at theological college who was murdered in Alabama in the course of civil rights work in 1965. His death was followed by a trial that, by any standards, was a travesty. It actually tried him rather than his murderer. The person was, first, indicted only for manslaughter and, secondly, acquitted even of that.

Noble Lords will know how intense are the friendships and feelings that arise in a student body. Our student body assembled the following autumn to face the reality of both the death of a friend and the acquittal—the final acquittal—of his murderer. I was the editor of the school journal. I still have the article that I wrote, and I still have deep inside me the sense that a deep injustice was done, and I would like that

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man got. That makes the argument for such a clause extraordinarily persuasive to anyone who has been through that kind of experience. Obviously there are people who have been through it with far closer friends or relatives—spouses, parents or children. Then I find myself thinking about what would be involved—giving a life sentence to acquitted persons.

The last Archbishop of Canterbury but three, Lord Coggan, invited the nation to consider the kind of society in which we wanted to live. The most reverend Primate the Archbishop of Canterbury has raised that question for us all in his extraordinarily persuasive lectures and speeches. I need to ask myself the question: what kind of society will this create?

The previous two noble Lords who spoke raised the issue of victims who see no one brought to justice. That is very searing as an experience. But we should be clear: hundreds and thousands of such people in our society have to come to terms with the fact that justice has not been done. That is not because of an improper acquittal but because the person has never been brought to justice in the first place, has never been brought before the courts in the first place or was never discovered in the first place. The experience of living with an unresolved crime is terrible but many, many people undergo it. This subsection will make a difference only to a small minority of such cases.

I appreciate that the real issue is how we help such people to move on. It is also how we try to ensure that people are brought before the courts when they have committed crimes. That is a matter of policing and resourcing and so on, and of being tough on crime—if I may coin a phrase—and tough on the causes of crime. All those things arise in this issue. However, if we pass this measure, we shall give people the illusion that we are successfully doing something about unresolved crime when we shall actually be condemning to a life of fear people who have been acquitted.

I have one more thing to say. I understand—I was told this; I do not know whether it is true—that certain noble Lords are minded to support the clause and to resist the removal of the subsection from the Bill on the grounds that the possibility of retrial will exist only for the most serious crimes. I find that totally illogical. It seems to me to amount to saying that if I commit a burglary or am a pickpocket and am acquitted, I am in the clear, but that if I commit a really serious crime, I shall never be in the clear. I am not talking only about me but about every single acquitted person.

I know that the hurdles that have to be jumped are very high, but that will not be the perception of people who are likely to come within the frame of this measure. A person accused of murder or rape will live in fear. This provision is an incitement to gangs and enemies and to police and governments under pressure to bring forward cases that, in my opinion, should not be brought forward. I find this subsection, and in particular the retrospection involved in it, the most serious departure from the kind of society in which I wish to live.

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6 p.m.

Lord Donaldson of Lymington: My Lords, I find myself in great difficulty over this matter. From the moment I entered the law, I was brought up to believe that, once a man was acquitted, that was it. I have listened to the speeches supporting the amendment of my noble and learned friend Lord Lloyd. I am talking only about retrospectivity; the other matter is for later discussion and different considerations will apply.

I have heard it said by one noble Lord—I forget who—that, once a man is acquitted, he is in the position of being found innocent. That underlies many of the comments in the media and it is wholly wrong. There is no room in the law for a verdict of innocence. In very rare cases, the evidence may prove beyond peradventure that a person did not commit a crime but, even then, the verdict is only—

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