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Lord Clinton-Davis: My Lords, I am very sorry to depart from the opinion of my noble friend Lady Gibson of Market Rasen on this occasion, but the argument about public confidence can be woefully overdone. After all, public confidence would be immeasurably in favour of restoring the death penalty, even today. That would be a grotesque error. Public confidence is important, but it should not be overdone. The Government, whom I generally support, have overdone the principle of public confidence on this occasion.
On questions of crime and punishment, it is generally wise to support those who have some experience. The public do not have that, by and large. Therefore, there is some inconsistency. My noble friend would be the first to support the view that I have advanced that capital punishment is and should be unattainable. She nods her head. That is the view of the Government as well, but is there not some inconsistency between the measure and what I have talked about?
My second point is on harassment. It will be very dangerous to have a second trial where the person charged and acquitted in the first will be harassed, as undoubtedly in some instances they will be. It is not part of my case that harassment will be present in every instance, but it will be present on some occasions. It is immeasurably dangerous that that situation should prevail.
I have been a solicitor for quite a long timeabout 50 years. Part of that time, I was involved as an advocatea rather successful onemostly around the London courts. I never thought about the guilt or innocence of the people whom I was defending, as I am sure is the view of all lawyers. But I believe that if this provision is incorporated in the law, inevitably there will be a danger that lawyers will think about that. Even if I am wrong and that argument can be dismissed, any question of a campaign against a minority of people is unthinkable.
Therefore, I believe that a second trial would be immensely dangerous. It would inevitably become known that the defendant had been before the Court of Appeal and the Criminal Division of that court had said that there was something wrong with that person and that there should be another trial. I find it unthinkable even to contemplate that possibility.
My last point is that I believe that the clause as presently drawn will encourage sloppy and undesirable policing. The police will undoubtedly be encouraged by the fact that there is a possibility of a second trial. Although, again, I believe that only in a minority of cases will the police behave in the way that I have indicated, so far as I am concerned even a minority of cases is unacceptable. Therefore, rather reluctantly, because I am always reluctant if there is an
Lord Donaldson of Lymington: My Lords, we are now in injury time. I shall make two points and do so very briefly. The first is that I fully accept that it is a fundamental tenet of English law that someone is innocent until proved guilty. I go further and say that, if that principle can be strengthened, it is strengthened when someone is acquitted. For that reason, even at this late hour, I hope that the noble and learned Lord the Attorney-General will consider at Third Reading whether Clause 61 should be amended.
Clause 61 deals with two different categories of case. One is where someone is acquitted in Englandincluding Wales for this purposeand the other is where he is acquitted elsewhere. Where he is acquitted elsewhere, there is no attempt to set the acquittal asideit is accepted. But the question that the court must decide is whether in exceptional circumstances that acquittal should be a bar. That is what should apply in English cases.
In my view, when someone has been acquitted, he is entitled to say, if he wishes, "I have been acquitted; I am acquitted; I am still acquitted. The sole question is whether that acquittal will prevent me hereafter being convicted", and it is the Court of Appeal and so on which must decide that. I do not like the way in which the acquittal is quashed before the evidence has been heard. It would be far better to deal with it the other way. That is the first point.
My second point is that all the arguments against double jeopardy have centred on matters which are dealt with in Clause 64. In every case, whether it is inefficient or sloppy policing or media pursuit, those matters are dealt with in Clause 64(2). Of course, I respect the experience of the noble Lord, Lord Neill, but if this provision is passed, as I hope it will be, the media will have to think very carefully before they start a campaign to have someone's conviction set aside. If they do it with their usual enthusiasm, they will ensure that the Court of Appeal refuses leave on the grounds that it is no longer possible for the accused to have a fair trial. Faced with that dilemma, I have a nasty suspicion that the media will continue to pursue. Therefore no question of a second trial will arise. But I may be wrong about that.
Lord Cooke of Thorndon: My Lords, given the observations of the noble Earl, Lord Russell, I should offer at least some reply on behalf of the Cookes. As the noble Lord knows well, Sir Edward Coke was a strong believer in the force of the common law. He believed that the common law could control even Acts of Parliament. I do not wish to enter into that debate this evening. I simply say that the common law would not be infringed
Earl Russell: My Lords, the noble and learned Lord quoted Sir Edward Coke as saying that in some cases the common law will control an Act of Parliament. In fact he said that some say that the common law may control an Act of Parliament. I have argued in print that that opinion is obiter; it is not central to the judgment.
Lord Cooke of Thorndon: My Lords, I defer to the noble Earl's infinitely greater knowledge of the subject and will refrain from entering into that in any more depth. Whatever view is taken of that question, on the issue of whether the proposed legislation is in any way contrary to the spirit of the common law, that is not so as far as concerns the future. Surely, it is consistent with the common law that in future a person accused of a crime should know that if he or she is acquitted there may nevertheless be perhaps a slight possibility that he or she may be retried if new and compelling evidence emerges and if a fair trial can be had. There is nothing abhorrent to the common law principlethe principle of autrefois acquit, as I was always brought up to saybecause that is a known possibility that the possible offender faces. That is entirely different from the situation of somebody who has been acquitted in the past on the understanding that that is final, and is now suddenly faced with the prospect of a retrial owing to legislative change.
Lord Mayhew of Twysden: My Lords, I hope that it is not to add insult to injury time for me to add to this debate, even by the short contribution I propose to make. I believe that all institutions, being mortal, are accordingly imperfect. I do not believe that the dilemma which rightly has been occupying us for the last three quarters of an hour is capable of being perfectly resolved. In that I respectfully follow the noble Earl, Lord Russell. We cannot achieve perfectionthat is to say a resolution of the dilemma in a way which would be certain to lead to a perfectly just result in every case.
I have asked myself why our forebears have held to the principle for so long that one bite is all that one gets if one is the prosecutor. I believe that that derived from the recognition that the exercise of the prosecuting arm of the state is intensely invasive of personal liberty and wellbeing. Never mind that it ends up in an acquittal, as it frequently does because of the burden of proof. That will take place, typically, not months but years after the prosecution process has begun in the course of which liberty has been curtailed or there has been bail; everyone is saying, "There is no smoke without fire"; and for a police officer there may be suspension, sometimes for years. I believe that that is why our forebears have held to this.
I have asked myself whether that is sufficient reason for retaining it today, and I believe that it is. The prosecution has the whole panoply of the state behind it. Certainly, there is the burden of proof, but by starting prosecutions they can invade the liberty of the individual to a ghastly, albeit a necessary, extent. Is it
I believe that right-thinking people will deeply regret the day that this constitutional principle is abandoned, if that is, indeed, what happens.
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