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Baroness Anelay of St Johns: My Lords, I recall that we debated this matter at some considerable length, and with the same amount of deeply and sincerely held passion, more than three months ago at a similar time of day on another Thursday. I am also aware of the rules that, in particular, as a Front-Bencher, I must adhere to. The Companion states:
- "Arguments fully deployed in Committee of the whole House should not be repeated at length on report".
In summary, we on these Benches, in another place and in this House, accept that there should be some relaxation of the double jeopardy rules and that that relaxation should apply to those already acquitted. We accept the argument put forward by the noble Baroness, Lady Whitaker, that it is not retrospection in the sense commonly understood by the public.
I also endorse the remarks of the noble Lord, Lord Corbett of Castle Vale, who encapsulated the arguments that I put forward in July on the importance of ensuring that, if anybody is to have that tap on the shoulder, we must provide every safeguard to ensure that
it will be the right person—the acquitted person who perhaps should not have been acquitted. Since July, I have looked carefully at the safeguards that should be incorporated within this part.The same amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, was tabled in Committee in another place by my honourable friend Dominic Grieve. That was a purely probing measure, as he made clear. It was as a result of listening to the arguments adduced at that time, and to those adduced in this House in July, that we looked again carefully at our position and decided that we would not resile from it and that we would continue to oppose the amendment.
It grieves me much that, on this occasion, I do not agree with my much respected colleagues and, I hope, dear friends, the noble Lord, Lord Renton, and the noble and learned Lord, Lord Mayhew of Twysden. If there is to be a Division, my noble friends on the Front Bench and I will support the Government in the Lobbies.
Lord Goldsmith: My Lords, the noble Baroness, Lady Anelay, has rightly reminded us that on Report we should not repeat arguments fully deployed in Committee. One was privileged to participate in the debate in Committee, which involved many noble Lords from the law—including former judges—those from the Church and others with experience.
The noble Baroness, Lady Anelay, is right to say that there are strong and sincerely held views on the principle of double jeopardy. The Government have made clear their determination to change the rule relating to double jeopardy and have the support of the Law Commission, Lord Justice Auld and the Home Affairs Select Committee, to which the noble Lord, Lord Corbett of Castle Vale, has referred. All of them agreed with the principle of change.
I remind myself that the amendment relates not to the principle but to this: if there is to be such a change, should it be something that can relate back or that can only relate forward? Despite the eloquence of those such as the noble and learned Lord, Lord Lloyd of Berwick, who oppose what is described as retrospectivity, the Government do not accept the amendment and the removal of the clause. It would simply provide an arbitrary cut-off point before which cases could not be brought to justice.
There were powerful speeches today. I single out, in particular, the contributions of my noble friends Lady Whitaker and Lord Corbett, who talked about justice, as did the noble and learned Lord, Lord Donaldson.
In the Government's view, and in my view, disallowing a retrial in serious cases when there is compelling new evidence, such as DNA or even a confession, which indicates that an acquitted person is in fact guilty of a serious crime committed some years ago, is illogical and unjust. It would be an affront to justice.
As my noble friend Lord Corbett said, retrospective application of these changes was supported by the Home Affairs Committee and the Law Commission. That gives me the opportunity to deal with an important point raised by the noble Viscount, Lord Colville, about Article 7 of the European Convention on Human Rights. Unhesitatingly, I say that there will be no contravention of Article 7 of the convention if this subsection remains.
That was the view of the Law Commission. I have here the report produced by the Law Commission, which, as noble Lords will know, was chaired by a High Court judge at that time, the honourable Mr Justice Carnwath, with distinguished academics. They looked carefully at the issue. Having said that in policy terms they thought that the arguments in favour of giving the exception retrospective effect were powerful, they went on specifically to deal with Article 7.
I shall touch on that issue for the benefit of those noble Lords who raised it, including my noble friend Lord Clinton-Davies. Article 7 prohibits the creation of retrospective offences by legislation—the principal purpose—or to change the penalty. But it does not prevent retrospective changes in the rules of criminal procedure so as to remove a bar or obstacle to a prosecution. That is clear from European jurisprudence. It is set out clearly in the report of the Law Commission, which was very clearly of the view that it did not contravene Article 7.
There is no question of creating a new offence. We are talking about prosecuting someone for something which was an offence at the time, such as murder. We are not suggesting that they should be subject to a different penalty from the penalty to which they would have been subject at the time. It is the question of a procedural bar which exists at the moment. Removing that is not a breach.
Lord Thomas of Gresford: My Lords, perhaps the noble and learned Lord will forgive me for pointing out that prosecutions will be made under new rules of evidence and in a different context altogether.
Lord Goldsmith: My Lords, that still does not contravene, in any way, Article 7 of the European Convention on Human Rights. It is not concerned with changes in procedural rules, but with prosecuting someone principally for something which simply was not an offence at the time that it was committed. I am sorry that the noble and learned Lord thought that I did not give him a satisfactory answer on the previous occasion. I believe that I did address this issue as a matter of principle. It is not contrary to the European Convention on Human Rights. As a matter of justice, while recognising the strength of the arguments the other way, the Government take the view that where compelling new evidence comes forward, it is just that people who have committed crimes should be subject to the possibility of a retrial.
There are important safeguards. The noble and learned Lord, Lord Mayhew of Twysden—
Earl Russell: My Lords, the noble and learned Lord referred just now to people who have committed crimes. Is that compatible with the presumption of innocence?
Lord Goldsmith: My Lords, I thought it was clear. If someone had committed a crime—I am not referring to any particular individual—and the Court of Appeal, the Director of Public Prosecutions and the police believe that there is new and compelling evidence, and the Court of Appeal and the DPP regard a retrial as in the interests of justice, a retrial should take place. I entirely agree that on that occasion, it will be for the jury to determine whether the person was guilty.
On the previous occasion, my noble friend Lord Brennan also powerfully pointed out that the interests of justice, looked at from the point of victims, required and justified the provision being retrospective. I agree with him that if someone who had been in prison for 15 or 20 years could be released because DNA evidence showed him to be innocent, then if compelling new evidence comes forward that suggests that a person who was acquitted of murder 15 or 20 years ago may be guilty, the community would say that it is unjust to allow such a person to avoid a retrial and possible conviction under the provisions.
The Lord Bishop of Worcester: My Lords, I apologise if my question arises from my ignorance of procedures and practice, but presumably, because the acquittal will have been a public event, the jury in any new trial will know that the Court of Appeal has judged that there is new and compelling evidence that could not have been available at the time. If I am wrong, please tell me. If the jury knows that, how can they approach the evidence in a dispassionate way? They will know that three learned judges of appeal have made their judgment about the evidence.
6.30 p.m.
Lord Goldsmith: My Lords, the right reverend Prelate raises a point that, with respect to him, goes beyond this amendment to the question of the principle of double jeopardy, which we will come to in later groups. There are publication provisions and reporting restrictions that will protect, and the Court of Appeal must always be satisfied that a retrial would be in the interests of justice. That does not affect this provision.
Lord Neill of Bladen: My Lords, I thank the noble and learned Lord for giving way. I know that this is trespassing on a further part of the Bill, but is not his response completely unreal? We can imagine that, in some of the cases that come up for retrial, there will have been a public clamour, television programmes, newspaper articles and relatives groups whipping up interest. The person who is accused will be perfectly well known—his face will have appeared regularly.
The jury in charge of trying him for a second time will know perfectly well that the Court of Appeal must have cleared the case. Juries are quite smart these days.
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