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Lord Goldsmith: My Lords, we have debated at length on this occasion, as I believe we did in Committee, important points of principle. Distinguished lawyers are divided on this issue, as we have seen today. However, others have demonstrated that lawyers have no monopoly on wisdom, no monopoly on what is the sense of justice of the community or on what will give confidence to the community in the justice system, which is for everyone and not just for the lawyers.
For that reason I very much commend to your Lordships what was said by my noble friend Lady Gibson of Market Rasen, which was simple, clear and compelling. It represents in essence why the Government accepted recommendations which were successively made by the Macpherson report into the Stephen Lawrence inquiry, by Lord Justice Auld and by the Law Commission that we should bring in this exception to the double jeopardy rule for very serious offences. The Home Affairs Committee also supported it. A large body of people have very carefully considered this matter, weighed up the arguments on both sides and come down in favour of this exception.
We do not expect these reforms to apply other than in exceptional circumstances. Perhaps I may say to the noble Lord, Lord Neill of Bladen and, indeed, to the noble Earl, Lord Russell, that it will not be the case that every person acquitted will fear the possibility of a further trial. That is simply not the position. However, we believe that the existence of the power will benefit justice. It will strike the right balance—balance it has to be—between finality and the public interest in ensuring that those who have committed the most serious offences can be brought to justice.
Because we have debated the issue, I hope that noble Lords will forgive me if I do not deal with all the points raised. I think that that would be wrong because the arguments have been clearly set out.
We have thought hard about many of the points raised and have therefore introduced safeguards, as noted by the noble and learned Lord, Lord Donaldson. The Director of Public Prosecutions and the Court of Appeal will require to be satisfied that there is compelling new evidence against a person. The Court of Appeal will have to consider a retrial to be in the interests of justice.
I say to the noble Earl, Lord Onslow, because it appears on the face of the Bill in Clause 61(5), that a person can be subject to this procedure only once. There is no question of going back a second time. The matter goes further; we have also included provisions to prevent the kind of harassment referred to by one or two noble Lords. So, under Clause 69, police officers will not be able to arrest or question a person who has previously been acquitted, to search him, his premises or a vehicle owned by him or to take his fingerprints or a sample from him in connection with this offence without the consent of the Director of Public Prosecutions.
Lord Neill of Bladen: My Lords, I thank the noble and learned Lord for giving way. Will he tell the House what Clause 61(5) means? It states:
- "Not more than one application may be made under subsection (1) or (2) in relation to an acquittal".
Lord Goldsmith: My Lords, no, that is not the intention, nor can it be the construction of the Bill.
My noble friend Lord Judd raised a point. I am sorry to differ from him as I am from my noble friend Lord Clinton-Davis. We can see no reason why having a tightly drawn exception to the double jeopardy rule would cause the police to be anything other than scrupulous in their investigation, but we have provided a number of important safeguards to prevent the police relying on a second bite of the cherry. The Court of Appeal has to be satisfied that it is in the interests of justice. In Clause 64(2)(c) and (d), the court has explicitly to consider the extent to which the officers or prosecutors have acted with due diligence or expedition. All that has been taken care of.
On reporting—the right reverend Prelate referred to the issue in a previous group of amendments—juries can and do cope when properly directed. I am afraid that at the moment it happens all the time. We have carefully considered the issue of publicity. The Court of Appeal must take that issue into account when deciding whether a fair trial is possible, as the noble and learned Lord, Lord Donaldson, said.
Clause 67 goes further and imposes particular reporting restrictions so that the interests of justice can be safeguarded by the time the matter gets to the Court of Appeal.
The Lord Bishop of Worcester: My Lords, I am grateful to the noble and learned Lord the Attorney-General for giving way. The puzzle I have—and it seems to be a paradox of his position—is that the higher the hurdles which this case has to jump, that is to say the more stringent the tests applied by the Court of Appeal, the more likely it seems that members of a jury will feel that this case has been incredibly carefully investigated by enormously learned persons. Therefore, they would need extremely good reasons to dissent from the judgment of the appeal judges.
Perhaps the noble and learned Lord will explain the matter if I have it wrong. To me, the issue is not one of publicity; it is not the issue of reporting; it is simply the issue of the fact that this case will have been so carefully assessed by the Court of Appeal, which has judged the evidence to be new, compelling, and not to do with sloppy investigation and all the other aspects the noble and learned Lord has, I am sure, quite correctly and sincerely, outlined. How will members of a jury put that out of their mind and come to the question fresh?
Lord Goldsmith: My Lords, it is because of the question of publicity that Clause 67 specifically provides that the Court of Appeal will have the power, by order, to prevent the matter being reported if it believes that that would give rise to a substantial risk of prejudice. If the order is made by the Court of Appeal, the jury will not know that it has been made; nor will it have seen what was debated during the hearing. If the Court of Appeal, having considered the publicity, is satisfied that it is in the interests of justice, trial judges will direct juries that they must have regard only to the evidence presented to them.
Lord Wedderburn of Charlton: My Lords, I am grateful to my noble and learned friend for giving way. I appreciate what he has said. The best has been done in the Bill to try to stop publicity, as he calls it. In the real world, what will stop it being like the posting of names of football players all over the web? Will the Court of Appeal be able to stop that? No. Will the jury know? It is the net that matters, not the media.
Lord Goldsmith: My Lords, orders will relate to publicity generally. If the noble Lord wishes to return to the question of whether the clause is sufficiently widely drawn, I will be happy to deal with it when we get to that clause. We have debated whether the list of offences is right.
Lord Judd: My Lords, I am sorry to interrupt my noble and learned friend again. I ask him to accept my genuine bewilderment that in his argument he lays great emphasis on the measures that can be taken to prevent publicity. Surely the very fact that the case is there, and the jury has been asked to participate in it, demonstrates that the process has been gone through. Jury members will therefore be influenced greatly by the fact that they know the process must have been followed if they are asked to come and hear the case.
Lord Goldsmith: My Lords, I am by no means sure that that is right. If a defendant wishes it to be known that he has been acquitted before, that can happen. No doubt it will be a matter to be considered by the trial judge, but as regards procedure, I am not sure whether the jury should be presented with the case on the basis that the defendant has been tried before. I can see circumstances in which a defendant would think that that is helpful.
Lord Thomas of Gresford: My Lords, does the noble and learned Lord the Attorney-General accept that in retrials, transcripts of previous evidence are almost invariably used for cross-examination purposes, and the fact that there has been a previous trial is always known?
Lord Goldsmith: My Lords, we do not have a procedure such as that being debated at present. The Court of Appeal will have the important task of deciding whether it is in the interests of justice for the court to make the order. It will have to have regard to whether existing circumstances make a fair trial unlikely, the length of time since the alleged offence was committed, whether it is likely that the new evidence would have been adduced but for a failure of people to act with due diligence, and whether, since then, someone has failed to act with due diligence. We can trust the Court of Appeal to make the right judgment, as we can trust the trial judge to make the right judgment about whether a fair trial will be necessary.
We are well past injury time, so I shall conclude. The fact that someone has committed a murder and then brags about it in a pub is not just a matter of offence. With respect to the noble Earl, it is not the same as someone bragging that he has enjoyed the company of many women. If there is a retrial, the question for a jury, the Court of Appeal and the DPP will be whether there is new and compelling evidence, which they will have to look at as a whole.
I return to the point made by my noble friend Lady Gibson. Public confidence in the justice system is diminished if people are able to walk free where there is compelling new evidence that they have committed serious offences. That is not only because it is not right that they should be able to walk free, but also because they may be walking free to offend again.
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