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Baroness Kennedy of The Shaws: I assure the noble Lord, Lord Neill of Bladen, that this House has not become meek. That is certainly not a word that has ever applied to me. I have always felt that the attitude with which I have most difficulty is "blessed are the meek", because they are the ones that end up getting the hardest deal of all.

I wanted to reassure the noble Lord. I contacted the Public Bill Office but did not have the draft Bill with me. I said that I wanted the provision for double jeopardy not to stand part of the Bill. I was informed that the provision was in Clause 77, but should have been in Clause 7. Noble Lords will see my name asking for Clause 77 not to stand part, but I was asking for the right to retry not to stand part of the Bill. I shall certainly table an amendment on Report.

I should like to speak to the principle involved and express my concerns. We are talking about a rule of constitutional importance which is recognised throughout the common law world and even beyond. It is applied in virtually all developed legal systems. I note that when the issue was discussed, in seeking to find support for this move away from principle, the Prime Minister himself said that such a system was used in Finland, Sweden and Germany. He was not able to name anywhere else, because there is no other place.

When I inquired into the actuality of that, I discovered that it meant that in places such as Finland and Sweden, there is an opportunity to re-try when there has been a corruption of the process. If the judge—there are no juries such as we know them in those systems—has been somehow corrupted and an acquittal has been entered wrongly because of that corruption, it is possible to re-try.

We have a similar provision. In the 1990s, legislation was carried through this House and the other place that allows for the retrial of a defendant who is acquitted when there has been interference with the process and the jury might have been nobbled. It has never had to be used. So, we have the equivalent of what exists in the countries to which the Prime Minister referred. We are running in the face of a principle that is accepted around the world.

The reason for the principle is clear. The noble Lord, Lord Neill of Bladen, expressed it better than I could. It is a serious and grave thing to put someone on trial. In denying the principle, we are creating something new. In murder trials and in other serious trials, we are creating the conditional acquittal. I want the Committee to think seriously about that. A person who stands trial will not be able to leave the court building sighing with relief. Many of us have had the experience of a client almost collapsing at the end of a trial, and we have been able to say to him or her, "It is over. You can rebuild your life". We will not be able

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to say that any more. It is a terrible punishment to visit on many people that they should live with uncertainty without finality. We know that, in a number of cases, terrible wrongs have taken place or guilty people have walked free.

Here again, an incredible problem presents itself to us. I, too, have been moved by the accounts of people who say, "The man who killed my daughter is walking around". We know that such cases exist. Happily, there are few about which we can say that with any certainty, but what we will visit on the many is the fear of the hand on the shoulder. That is a terrible thing to bring into our system.

It looks like an easy change to make. DNA has arrived on our doorstep, and we can be confident that someone has committed an offence. However, the Government really want to do exactly the thing about which the noble and learned Lord, Lord Lloyd of Berwick, expressed concern and deal with the sort of cases that come up in the press from time to time, in which people pained by an injustice want that injustice cured. I am afraid that retrospectivity is at the heart of it. It will bring credit on the Government, if they are seen to solve the grievances in a handful of cases.

We must think seriously about it. We are pouring a poison into the system. As the noble Lord, Lord Neill of Bladen, said, one of the problems is that, in the contemporary world, it is not just the policeman who can put his hand on one's shoulder; the press can do it, too. When a man or woman steps out of a courtroom acquitted in a particular kind of case, a campaign will immediately be mounted to have that person brought back before the court. That is a terrible thing to visit on our system.

There is a risk that disappointed investigators, particularly in high profile cases, will wish to recommence investigations immediately after an acquittal, especially if there is pressure from the media, from victims and their families, who will have a higher expectation, and from politicians who want to jump on the bandwagon. Those with previous convictions known to the investigating officer would also be a target. Officers with a personal animus against an accused may wish to pursue him, despite an acquittal. That is a worrying thing to introduce into our system.

There is a serious risk that any new trial would be unfair. If the process goes through—I know that there is an attempt to limit press coverage—it will mean that a new jury in a second trial will know that there must have been evidence that the Court of Appeal considered very compelling. We are introducing the presumption of guilt and attacking the fundaments of our legal system. After a first trial, the prosecution will have precise knowledge of a defendant's case and will be able to review and strengthen its own case and plug holes in it in the light of that knowledge. People may say, "So what?". The answer is that we are turning on their head all those things about the burden of proof.

The Government propose that fresh evidence should be taken account of only if it could not reasonably have been available for the first trial, but it is our view that such situations are likely to be

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commonplace because of inadequate investigation in the first place. Almost every case in which there is an unhappiness for the family or the victim—whether it be the Stephen Lawrence case, or the recent case of Damilola Taylor, or, indeed, the case of Julie Hogg where a mother found her daughter months after the event—invariably the reason why the case failed the first time was poor investigation. Instead of improving policing and investigation, it has been plugged again by trying to interfere with principles within the system.

The abolition of the rule against double jeopardy is liable to encourage unreasonable expectations in the victim. It is likely to create media campaigns and to rob the process of finality. That could have very real and serious consequences. I wish to support the noble Lord, Lord Neill, who rises up astounded that there is not alarm and despondency much wider than there has been about what it really will mean; about what the implications will be; about the kind of campaigning there will be on the steps of courts; and about how hideous it will become for the lives of many. So the cost to our system will be great.

Turning now to DNA, I say particularly to the noble and learned Lord, Lord Lloyd, that, if it is the situation that we do not have this as retrospective legislation—I hope, indeed as he does, that it is not, but I have my real suspicions as to what its purpose is—what is the need? What we should be urging for is proper investigation. I urge Members of the Committee to recognise that of course we hear these cases and we feel and empathise with the pain of those who feel a wrong has been done, but we must also measure it against the much greater wrong of interference within our system as a whole.

That role has existed since Roman law times; it is shared around the world for very good reasons. Interfering with it is a shocking step away from the principles on which our system is based. What do we say to people who say, "My daughter's murderer is walking free"? In the particular case of Julie Hogg, a man confessed that he had committed the murder of this young woman. He was brought back before the court and was convicted of perjury. The maximum penalty for perjury is 10 years' imprisonment. The judge, who I think made a mistake, gave that man six years. He probably should have faced the full range of that sentence—10 years probably would have been appropriate. Maybe we should be looking at lengthening the sentences on perjury; maybe we should be looking at other ways. But to leave it that a person walks out of a court room thinking that all he has got is a conditional acquittal for one of the most serious cases for which one will stand charged in court, is a terrible way to take our system. That is a terrible route for us to be going down. I go back to the principle and will not be meek on this subject.

Lord Mayhew of Twysden: In our debate on jury trials and whether they were to be curtailed, I thought that there was general agreement that we were all concerned to promote public confidence in the criminal justice system. I have genuine sympathy, to this extent: there is a difficulty in terms of public

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confidence in an extreme case of the character that has been recited. One can understand with deep compassion the disgust and anger of the relatives of someone who has been murdered in circumstances where DNA establishes beyond a doubt that the person acquitted was in truth guilty.

But one needs to look more deeply, as I trust the Government will, at where the interests of public confidence truly lie. The superficial answer is clear in the scenario that we are imagining. But a little further down the line, I wonder whether public confidence would be sustained if this change were made when it was seen how people having been acquitted were hounded and badgered and their lives made a misery month in, month out.

I turn to a point not as yet made in the debate: how would witnesses who had given evidence for the defence be treated? How would their lives be affected? What pressures would be brought to bear upon them by certain tabloid newspapers—I cite those as an example, but by no means exclusively—to change their evidence? How would their lives be examined and placed under the microscope? What efforts would be made to demonstrate in public that their evidence had been thoroughly unreliable because of all kinds of things that may subsequently have been brought to light? When that is seen to be the pattern, I venture to suggest that public confidence will not be quite so firmly behind the change now being proposed.

So much has been said in the debate that I need say no more. I endorse all the remarks just made by the noble Baroness, Lady Kennedy of The Shaws, and those of the noble Lord, Lord Neill of Bladen. I also support strongly the remarks on the question of retrospectivity made by the noble and learned Lord, Lord Lloyd of Berwick. For myself, I find this matter extremely difficult and I am deeply uneasy about the compromise arrived at by the two Opposition Front Benches because those who have been charged with and acquitted of murder, soliciting for murder or genocide—possibly this may even be extended to manslaughter; I can see the logic of it—are the very people against whom the decibels are going to be the loudest in the public press and on whom the pressures are going to be the greatest.

Not very helpfully, I confess to unease and to an unconcluded mind, but in any event I am absolutely certain that Schedule 4 is grotesquely overdrawn.

5.15 p.m.

Lord Clinton-Davis: I strongly support the argument which has just been adduced by the noble and learned Lord, Lord Mayhew. I think that it should be possible for my noble and learned friend on the Front Bench to take this away and think again about the whole issue. Why was the rule of double jeopardy developed? In my view, nothing that has been said in this debate obviates the necessity of keeping that rule.

However, I never have and do not now want to score points against the Government, which I invariably support, but the burden of proof here rests very heavily on my noble and learned friend the Attorney-General.

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Moreover, the point made by the noble Lord, Lord Neill of Bladen, and subsequently reinforced by the noble and learned Lord, Lord Mayhew, about hounding by the media after an acquittal, is highly justified.

My noble and learned friend ought now to explain to the Committee how those consequences, which in any light are unacceptable, can be mitigated or, better still, how they can be avoided altogether. I hope that he will see that noble Lords who made these points have not done so lightly. They have been made as the result of a great deal of experience.

So far as I am concerned, therefore, I shall listen with great interest to what my noble and learned friend has to say, but I beg him to come forward with some form of reasonable response to the genuine points that have been advanced in this debate. I hope that he can do so.

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