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The Earl of Onslow: My Lords, when I was a small boy, I learned history from an extremely attractive history master. One of the first things that we were taught, when I was about 10 or 11, was about habeas corpus. He said in the classroom that the point about not being able to be tried twice for the same offence was that one could go into the pub and say one was guilty and there was nothing they could do about it. That was held up as an example of British justice.

Mr Ling is long dead, so he did not write the script for the noble and learned Lord the Attorney-General, who said more or less exactly that on a previous amendment, and how disgraceful it was. However, we must not tamper with old liberties; they are too precious and valuable. We gave the police powers under the Terrorism Act, and they have abused those powers—or it is alleged that they have abused them—over the demonstrations over the arms trade fair in the Docklands. If I were as confident in the police as I would like to be—and we have had too many instances of the police not being as good as we would like them to be—even then I would not be happy with the idea of having another trial for the same crime.

Let us assume that person X has committed a peculiarly foul crime, and the prosecution bog it up. Then they come along with some new evidence and up he goes again for the second time, the prosecution bog it again, and he gets off a second time. Is he going to be allowed to be prosecuted a third time? Even if that

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is a possibility, I would hate to see it. We are talking about old liberties, and old liberties are very precious. As the noble Lord, Lord Neill, said, other common law traditions are not going down this road, and I very much hope that we will not do so either.

Baroness Gibson of Market Rasen: My Lords, I am not a lawyer, so I cannot argue as one, but I want to direct my few remarks to the question of public confidence in the criminal justice system. I speak in favour of the proposals for retrial and in opposition to the amendment.

The provisions are for specific circumstances for serious offences. They uphold the public interest by ensuring that those who have committed serious crimes are ultimately convicted of them where new evidence comes to light, whether as a result of technological advances or because it was not available at the time of the original trial.

I do not believe that it is right that a new trial should not be able to take place. It not only undermines public confidence in the criminal justice system but leads to justice not being served. The vast majority of people in this country want to have confidence in the criminal justice system, and the clause will help them to do so. People are bewildered when acquitted people themselves admit afterwards that they have committed a crime and nothing is done about it. They do not understand why nothing can be done under the current law.

There are strong safeguards surrounding these retrial proposals. I believe that they are sound and sensible. That is why I shall oppose the amendment.

7 p.m.

Lord Judd: My Lords, I should like to follow on exactly what my noble friend has just said because she is a colleague for whom I have a particular warmth and respect. I simply ask her to reflect that probably nothing will do more to build public confidence in our system of the administration of justice than to ensure that we have first-class police, properly resourced, doing their job well; that court proceedings are effectively handled; and that convincing results are reached in the courts. Again, I understand the pressures under which the Government are working. However, I suspect that if we were to succumb to what we are being invited to endorse by the Government, it would perversely undermine public confidence. There would be a feeling that it does not really matter what happens in a given case, there is always a chance of another case being brought.

The police force is a very big organisation. I think that we have a very fine police force in this country, but it is not a perfect police force in many respects. Some players are stronger than others. I am worried that the provision might inadvertently encourage the career-minded opportunist policeman to go for a quick conviction without doing the work as thoroughly as it should be done in the knowledge that if a conviction was not secured the case could be pursued at a later stage.

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I think that the noble Lord, Lord Neill of Bladen, made a most important point. All this would not be happening in a vacuum. It would very often be happening in the context of a great deal of media attention and media agendas. I think that it would be very unwise to ignore that.

The main point that I want to make is to take up a comment that the noble Lord, Lord Thomas of Gresford, made on a previous amendment. He very wisely spoke about the importance of balance and recognising that we had to balance different considerations in this context. Of course we must feel for the victims. Of course we must feel for the relatives, families and friends of the victims. We would be a pretty sick society if we did not. All of us have that responsibility. However, if we believe that a fundamental principle of our society is a presumption of innocence unless one is proved guilty, one of our most important responsibilities as legislators is to protect the innocent.

As those of us who have been engaged in one way or another in social work know, very frequently those who end up in courts are inadequate and vulnerable people. They are very fearful and anxious people. If we are looking at the balance, we have to weigh against the need to be able to secure a guilty verdict against those who very clearly and beyond doubt committed a crime about which new evidence has become available—all of which is a very powerful and persuasive argument which of course I do not dismiss out of hand—the very considerable number of people who are innocent but who will for the rest of their lives never feel that a line has been drawn under their innocence. At any stage, because some journalist worked up interest or some vindictive policeman—God forbid that we have many—decided to pursue a case or vindicate a position that he or she may have held earlier, the case could be reopened.

The question is what kind of society we want to live in. If we really do see the presumption of innocence as a fundamental pillar of the free society in which we wish to live, we have to be prepared to pay some price for it. I really believe that if we move into the other situation—this is what I meant about the whole culture of our legal system and society beginning to be changed by this Bill—we move into a much more uncertain, anxious kind of society; the kind of society I never want to see the United Kingdom become.

Earl Russell: My Lords, I rise wearing my historian's hat. Although it is a private hat, I have not forgotten that I am a Liberal Democrat. Listening to this amendment I recall a particular member of my post-graduate seminar who happened to be a historian of the law. His specialist interest was in the Yorkshire assizes of the 1640s. He was a scholar of very considerable promise and, so far as I could judge, a nice, warm-hearted and generous man. He also happened to be an Irish republican brought up in west Belfast. At the age of 18 he had been tried for the murder of a policeman and was acquitted.

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As the release of Mr Silcott has recently reminded us, the police tend to have very strong feelings about the murder of policemen. It is quite right that they should and I am glad that they do. However, it is the basic principle of the law that having strong feelings about something is not a substitute for a legal verdict.

That man found that whenever any petty misdemeanour happened anywhere in his neighbourhood the first thing the police did was question him. I am not particularly surprised by that; he was not particularly surprised by it. He was not even—which does him credit—particularly annoyed by it. He thought that it was what he might have done in their position and was prepared to be sympathetic. But imagine that man's position were this Bill to become law. He would never be safe at all, and he was doing his level best to live as an honest, hardworking, careful historian who quoted his evidence accurately. The point about the uncertainty hanging over people cannot be better made than it is made by that case.

The noble and learned Lord the Attorney-General talked of people who had bragged of having committed murder. I agree that that causes offence but I ask the noble and learned Lord whether he believes that everyone who brags of it has committed a crime? Take the 17th century ranter, Lawrence Clarkson, who bragged of having slept with 365 women. I find the date too coincidental to be entirely credible. Many people have bragged of things and not all of them are guilty of them. It is important that we should not take the bragging alone to be sufficient proof that they have done it; we need evidence.

The noble Baroness, Lady Gibson of Market Rasen, said that the measure undermines certainty. It does, but people being convicted of crimes of which they are not guilty does so, too. You cannot have complete certainty in justice so long as it is administered by human beings. I do not wish it to be otherwise. If, for example, you read Measure for Measure, you see that there is virtue in human imperfection as well as fault. Granted the point of the noble Baroness, Lady Gibson, is correct, our choice is simply, which mistake would we rather make? Are we going to make the mistake of an occasional unjustified acquittal, flourishing like green bay trees as psalmists would have it, or of the occasional unjustified conviction? Like the noble Lord, Lord Judd, I know what my preference is.

I think also that we neglect at our peril the principle of certainty in the common law. When I refer to Chief Justice Coke I do not refer to the noble and learned Lord, Lord Cooke of Thorndon, great though my respect for him is, but to Sir Edward Coke, a 17th-century chief justice. His central maxim was:

    "Miserable is the servitude where the law is wandering or uncertain".

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If every time that we are acquitted our acquittal is wandering or uncertain, we are giving a very severe blow to the principle of legal certainty. If anything undermines respect for law, that would do it. I am very happy to support the amendment.

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