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Lord Judd: My Lords, I am grateful to the noble and learned Lord for giving way because I was the one who made the point. I simply ask him to comment on this: while the law may not declare a person innocent, according to the whole basis of our society and the values which underpin it, if a person has been found not guilty, he is innocent.

Lord Donaldson of Lymington: My Lords, that is a popular misconception which I have tried on various occasions to correct—but without the slightest success.

Supporters of the amendment have said that we should take account of the views of victims. We certainly should treat victims with understanding, but I cannot believe that it is right that laws should be framed on the basis of giving victims satisfaction. That is not least because every victim, if almost anybody is charged, assumes with an utter conviction that that person is guilty. If he is acquitted the victim thinks that there has been a miscarriage of justice. But the real touchstone is whether there has been a miscarriage of justice. I have been involved in a couple of cases which have been described as classic miscarriages of justice. I say nothing about them—although I am tempted.

However, I have said publicly that there are far more miscarriages of justice on the basis of wrongful acquittals than there are miscarriages of justice by wrongful convictions. I take account of the fact that the law is loaded to produce acquittals if there is any doubt. But we are considering cases of wrongful acquittals which can be demonstrated to be such. Against the principle of autrefois acquit we have a series of clauses, two of which matter. One is that one has to obtain the consent of the Director of Public Prosecutions before one can start on this road. The second is that one has to obtain the determination of the Court of Appeal in support of the DPP's view. Thirdly—what really matters—is Clause 64, which requires both the DPP and the Court of Appeal to look at the interests of justice.

That clause is worth looking at because subsection (2) says that the matter has to be determined in the light of:

"whether existing circumstances make a fair trial unlikely".

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An earlier intervention referred to the extent to which the media will hound people. We know that they will. I shall not name certain cases, but we all know cases in which the media, if they had the slightest chance, would require and demand a retrial of those people who have been acquitted. We know also that they would point out that out of a group of people, some were acquitted and some were never charged. The media will say that that creates a problem.

The court would be bound to refuse leave if a fair trial was unlikely, owing particularly to the activities of the media—or for any other reason. Clause 64(2(b) provides:

"for the purposes of that question and otherwise the length of time since the qualifying offence was allegedly committed".

That is crucial. Let us say a person has committed, or is said to have committed, a crime 20 years ago—for instance when he was not a teenager but a youngster. If 20 years later it emerges that he was guilty, it would be wrong that he should be prosecuted again. That is one of the exceptions set out in the clause:

"whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".

That describes cases in which it is said that the police, having investigated a case without due diligence or a sense of urgency, want a second go. They could not do that—unless the Court of Appeal takes leave of its senses, which is not an eventuality that I can personally admit—because the clause stipulates that leave could not be given in those circumstances.

A further exception is to be found in subsection (2)(d) of the clause; namely,

"whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition"—

in other words, having found compelling DNA evidence, they cannot just sit on it and wait until it is convenient to them to apply for a further prosecution.

I would hope and expect that if the amendment does not succeed—I am sure that it will—the number of retrospective cases in which this will be brought forward will be extremely few. If I were in the position of the noble and learned Lord the Attorney-General I would start by thinking of the cases which exist but which one could probably count on the fingers of one hand, of someone who, having committed a serious offence, then proceeds to proclaim the fact that he has. That seems to me to be an affront to the whole system of justice. Certainly, there should be the possibility of recharging him.

As regards retrospectivity, I would then move on, but with very slow steps, to the DNA cases. The DNA cases pose a difficult problem. Unlike most other later discovered evidence, the DNA cases can be conclusive or virtually conclusive. Certainly I would want to look at that, but with care. Beyond that I do not think I can go and I do not believe that the noble and learned Lord the Attorney-General would go any further, although he obviously cannot be expected to give an undertaking to that effect. If he did, I do not think that the Court of

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Appeal would let him get very far. For those reasons, I have real doubts about the validity of the amendment, despite its provenance.

Lord Cooke of Thorndon: My Lords, I rise to make a simple point. I have listened, I hope carefully, to the debate having come to it without any firm view one way or the other. I am in sympathy with the general concept that for the future at least an acquittal should not always be sacrosanct; and that, in particular, if new and compelling evidence—which could not have been adduced at the first trial—comes to light, there should be the possibility of having a second trial if, in all the circumstances, the Court of Appeal thinks it just.

However, the problem, as I see it, is the retrospectivity provision. Like the noble and learned Lord, Lord Donaldson of Lymington, I appreciate that there may be very few cases indeed in which the question of retrospectivity will arise although no doubt the noble and learned Lord, Lord Lloyd of Berwick, may well be correct in saying that there will be in existence a list of potential cases of that kind.

Having listened to the arguments on both sides, superbly and eloquently put, I am left in considerable doubt about whether retrospectivity is justified. There is a basic aversion of the law to retrospective provisions, especially in the criminal field. Therefore, if one is left in any measure of doubt, the correct course, the principal course, should be to reject retrospectivity. It is for that simple reason that I support the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick.

6.15 p.m.

Lord Thomas of Gresford: My Lords, we on these Benches support the amendment of the noble and learned Lord, Lord Lloyd, concerning retrospectivity. After all, what are we seeking? We on these Benches have conceded that, in very limited and narrow circumstances, there should be the opportunity to re-open an acquittal at some future time. But, in reaching that conclusion, one is trying to find a balance. Where is the public interest of balance between the interests of the victim and his or her family, the interest of the acquitted person, the use of judicial resources and the use of police investigative resources? We cannot re-open everything.

The noble Lords, Lord Corbett and Lord Borrie, asked how one can justify the retrospective, or the prevention of retrospective, consideration. My answer is that not every acquitted person is actually guilty. That seems to be something that is sometimes forgotten. There are a great many acquitted people who are innocent. The day after this Bill is passed, the day after that dividing line in time, those people will wake up to understand that from now on they have to look over their shoulder. There is a possibility that the acquittal on which they have relied and on which they have rebuilt their family and their world no longer counts for what it did.

So, it is one thing to say to a person who is to be acquitted in 2004, "Well, you must realise that there is a possibility that at some future date your acquittal

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will be re-opened", and a totally different matter to say to people who have rebuilt their lives, "I am sorry, as from 1st January 2004, your life may be shattered by an investigation and by a possible prosecution, even though you are actually innocent".

I want to make another point. The noble Baroness, Lady Kennedy, talked about finality. I think that was in the sense of finality for the defendant, that he knows where he is. But none of us who practise in the criminal courts can avoid the scene in the public gallery of the family of the accused—very concerned and worried—and also the family of the victim, or the victim himself or herself. They are under considerable strain. It may take a year or 18 months for a trial to come to a hearing and for there to be a conclusion.

At the end of that time there is a decision and people come to terms with that decision. The families of victims and the victims themselves have to come to terms with that decision and to rebuild their lives. What I fear from these provisions, if they are retrospective, is not so much the media hounding a particular person who has been acquitted, but the victim and the families of the victims continuing to press for more investigation, more evidence to be gathered and for the person to be brought once more before a jury. The fact that they will not receive finality in their lives is also a matter which has to be put into the equation when considering public interest.

So, whereas on the one hand it may seem wrong that we should ignore those well-publicised cases where people have boasted of the fact that they were guilty when they were acquitted, nevertheless, taking the whole picture in terms of where the public interest truly lies, we must, in our submission, accept this amendment.

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