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Lord Goldsmith: My Lords, I remind the noble Lord that this is Report. He raises a point that does not, with all respect to him, go to the question of whether this amendment should be agreed. The premise is whether the provision should be retrospective.
Lord Judd: My Lords, I am very grateful to my noble and learned friend for giving way. He has addressed this issue, as have others of my noble friends and, of course, I understand the feeling, concern and genuine commitment in this direction. However, while we consider the position of people who have—and know that they have—committed a crime, who have been acquitted and then subsequently find when they wake up after this Bill has been passed that they have not got away with it, what about the many people who have been acquitted in the past? Very often, the reason that they were in court was because they were vulnerable, inadequate people. What is their position when they wake up the day after this legislation has been introduced and find that something that they thought, with justice and truth, that they had put behind them is now uncertain? We must weigh that in our considerations as well.
Lord Goldsmith: My Lords, on the last occasion, the noble and learned Lord, Lord Lloyd of Berwick, gave the example of a man who was acquitted of a murder of which he was in fact guilty. That was the noble Lord's premise. The man later admitted the offence to his wife. I gave the example of a man who was acquitted of a murder and subsequently bragged that he was guilty. In both those cases a murder was committed and the murderer walked free from the original trial. If there is new and compelling evidence, I do not see the injustice, subject to the safeguards that we have discussed, of that person being brought to book.
Lord Lloyd of Berwick: My Lords, I am grateful for the support that this amendment has received from lawyers on all sides of the House and, above all, for the support that it has also received from laymen. There is no principle question of law involved here. This is simply a question of justice. To the right reverend Prelate the Bishop of Worcester I say that the problem of retrospection will not apply as he thought it might in the case of those who are acquitted in the future, because they will know that acquittal does not mean that they cannot be tried again. Therefore, there is no unfairness or injustice. The injustice applies to those who were acquitted in the past and who have lived in the belief that they could never be tried again. That is what sticks in my gullet, if I may say so, and that is why I wish to divide the House on this issue.
6.35 p.m.
On Question, Whether the said amendment (No. 143) shall be agreed to?
*Their Lordships divided: Contents, 45; Not-Contents, 68.
Allenby of Megiddo, V.
Avebury, L.
Clement-Jones, L.
Clinton-Davis, L.
Colville of Culross, V.
Cooke of Thorndon, L.
Dholakia, L.
Erroll, E.
Falkland, V.
Hamwee, B.
Harris of Richmond, B. [Teller]
Howe of Idlicote, B.
Judd, L.
Kennedy of The Shaws, B.
Lane, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lloyd of Berwick, L. [Teller]
Maddock, B.
Mallalieu, B.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Monson, L.
Neill of Bladen, L.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Pearson of Rannoch, L.
Phillips of Sudbury, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Steel of Aikwood, L.
Stern, B.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Turner of Camden, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Williamson of Horton, L.
Winston, L.
Worcester, Bp.
Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Blackstone, B.
Borrie, L.
Brett, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clarke of Hampstead, L.
Cope of Berkeley, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Donaldson of Lymington, L.
Dormand of Easington, L.
Dubs, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Filkin, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hughes of Woodside, L.
Lea of Crondall, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Mitchell, L.
Montrose, D.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Roll of Ipsden, L.
Rooker, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Symons of Vernham Dean, B.
Temple-Morris, L.
Turnberg, L.
Warner, L.
Whitaker, B.
Wilkins, B.
Woolmer of Leeds, L.
[*The Tellers for the Not-Contents reported 68 votes. The Clerks recorded 67 names.]
Resolved in the negative, and amendment disagreed to accordingly.
6.45 p.m.
Baroness Kennedy of The Shaws moved Amendment No. 143A:
- Leave out Clause 60.
The noble Baroness said: My Lords, this set of amendments stands in my name and that of the noble Lord, Lord Neill of Bladen. I am happy to be in such esteemed company. The noble Lord—who will of course in turn speak—and I believe that this is a matter of principle. Removing the rule against double jeopardy is of such consequence that we feel strongly that it should be marked and not just go by on the nod.
Your Lordships have already heard a full debate that has roamed beyond the issue of retrospection. I do not intend to rehearse those arguments, but I am concerned that the House should be aware that there are difficulties surrounding what will constitute new evidence. Reading the Bill, it seems clear that "new and compelling" evidence will basically be any old evidence—evidence that was available but which, because of poor prosecution or investigation, the police failed to procure until the second time round. We submit that that is the wrong way to conduct a justice system.
I am concerned that that will create insecurity—as has already been said so beautifully by the right reverend Prelate, and that we are creating a life sentence for acquitted people. That is what is so wrong in principle. We should ask what kind of society we intend to create. I submit that the provision will create a society with real uncertainty for people. We are undoing the glue that makes this country the place in which we all choose to live. I regret that our liberties are being so readily ceded by this Government. That is a source of sadness and profound regret to me. I beg to move.
Lord Neill of Bladen: My Lords, I support this group of amendments. We are told that it is procedurally necessary to move a raft of amendments to achieve one simple aim: to scrap Part 9. Apparently it is impossible simply to have a part omitted; hence this long string of amendments, but they are all directed to sweeping away every provision in the Bill that would alter the double jeopardy rule. All the arguments have been rehearsed, so I shall be brief.
Double jeopardy is an ancient principle. It is one of the big principles of English criminal law, as is the presumption of innocence. It is as deeply embedded as that. It is founded on the principle that guilty people will be acquitted, but that it is better to have such a principle than to run the risk that people who have been acquitted can be tried again in any circumstances.
We are here faced with a partial erosion of that great and ancient principle. It is partial because, as I read it—I shall be put right if I am wrong—it is directed to crimes of violence. No crimes of fraud—however grave; however grievous the consequences; however many people are ruined and made bankrupt—nor
crimes of blackmail leading people to suicide, matter. The provision applies only to crimes of violence. By saying that, you see at once that it is a populist measure. It is being introduced because some murderer has been acquitted and has thereafter boasted of what he has done. It is limited, in the hope of making it more palatable, but it is unprincipled, being partial.It is the destruction of an ancient principle. Finality is a great, desirable end. We must recognise that for these specified Schedule 4 crimes, every acquittal from now on is provisional. In fact, as a result of the last vote on the amendment of my noble and learned friend, Lord Lloyd, not only will acquittals be provisional in the future, but every past acquittal is provisional and can be reopened. That will come as quite a shock to people.
When the prosecution decides that it will institute this procedure, it applies to the court for an order, part one of which is that the original acquittal be quashed. Then a notice of that application is served on the happily acquitted man, accompanied by a piece of paper charging him with the original offence. Imagine that if you have been acquitted in a long and horrendous murder trial—let us assume, for once, that the accused is innocent. Years later, a charge is delivered and served on you saying that you are now being prosecuted for the murder of which you were formerly acquitted.
If we take this step we are moving out of line with other great common law jurisdictions, including Australia and the United States of America. So far as the parties to the European Convention on Human Rights are concerned, there is a protocol which permits a derogation from the general principle of no derogation from the double jeopardy rule. You can sign up to a protocol saying that it is the intention of your state to make a derogation. Let me outline my understanding—again, I will be corrected. I see the Attorney-General shaking his head. We have had many encounters in the past, in courts and elsewhere, and when he shakes his head it is something to tremble at. My understanding is that only in the case of Finland has such a signature to a protocol been made.
I drew attention at Second Reading to the point that the definition of new evidence is so extraordinary that it covers old evidence—evidence that could have been in existence long before. To make such a measure palatable it has to be made attractive by saying: let us suppose new DNA evidence comes to light. But the clause is not drafted in that way, as we will hear in another amendment dealing with this point.
New evidence is not confined to new scientific evidence. It will cover the case of a prosecution witness who was available to be called on the first trial—witness number three, say, who was an eye witness to the offence—but who was still in a state of trauma. The prosecution decides not to call that witness, because something might go wrong on cross-examination. Under this definition of new evidence, that witness could be called; there would be a retrial, the only difference being that the third witness is now called in
addition to the other two. There could be a replay of the old trial, plus an extra witness. This is a very undesirable development in the law.I drew attention last time to the likely consequences. When speaking a little while ago, I referred to campaigns against a man who has been acquitted. I have some little experience; as I mentioned then, I was, once upon a time, chairman of the old Press Council. We dealt with the moors murderers and other insalubrious cases. It is easy to foresee that media campaigns will be whipped up against a person who has allegedly committed some vile rape, murder or serial murders. We have seen examples of that. One has only to watch television for a week to see some investigation of either an alleged crime—or a past acquittal, as it will now be. A frightening and alarming future faces us.
I do not want to trespass on another point, but I made it earlier. There are provisions for the Court of Appeal to say that, when an application has been made for a retrial and has succeeded, it is not to be reported in any form of publication, even by word of mouth, to the public at large or to a section of public. The provisions say that it can be blanketed out—but in the real world, if there has been a campaign, everybody will know perfectly well that the campaign has succeeded and, hooray, there is going to be a second trial. That will lead to highly undesirable consequences, given the media world in which we live, which reinforces why the old principle was so good. There would be occasions when an acquittal was not justified, but that was preferable to the system now being recommended by the Government.
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