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Lord Neill of Bladen: My Lords, as one who unsuccessfully opposed the whole of this change in the law last week, my position is to favour the proposal put forward by the noble Lord, Lord Thomas. I believe that we make a great mistake in getting rid of a historic rule of English law and if we are to do that, we should confine it as narrowly as possible. Looking back, the real force for this change was the Law Commission's report. It is true that it was mentioned in the Macpherson report, but I believe that the support given by the Law Commission has led to the present provision. I strongly recommend to your Lordships that we should confine the principle as narrowly as possible and in accordance with the proposal of the noble Lord, Lord Thomas.

Lord Lloyd of Berwick: My Lords, I too am not totally opposed to some relaxation of the rules, as I have made clear in the past. But I agree both with the noble Lord, Lord Thomas, and with the noble Lord, Lord Neill of Bladen, that in the first instance the exceptions should be confined as narrowly as possible and then let us see

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how the provision works. Therefore, I would support the amendment in the name of the noble Lord, Lord Thomas, and oppose the amendment which has apparently been agreed between the two Front Benches.

Perhaps I may underline one reason. The Law Commission clearly considered that this a very important and difficult step to take. It said that in the first instance the matter should be confined to murder. No good reason has been given why we should reject its advice.

Lord Alexander of Weedon: My Lords, I have doubts about the breadth of the list put forward by the Government. I see very much the force of the argument that we should follow the Law Commission's representations and the principled argument developed by the right reverend Prelate, whereas we look at a list of offences which have here been categorised as serious—and they are serious—but on relatively judgmental grounds without the underlying thread of principle that will indicate how this branch of the law will develop.

It seems to me—I may be wrong—that this intertwines in some way with an amendment that will be put forward later by the noble Lord, Lord Clinton-Davis, in which the noble Lord seeks to insert in the provision for retrial regarding evidential requirements that evidence,

    "could not reasonably have been adduced".

I am not, at the moment, clear about the Government's approach to this amendment. For my part, I should be extremely sceptical about a relatively long list of offences, particularly if this protection, and this discipline on those who carry out their inquiries, was not accepted by the Government and introduced. But, in any event, I slightly favour the approach put forward by the noble Lord, Lord Thomas of Gresford.

Lord Ackner: My Lords, I too think that we should proceed incrementally. I see no virtue in leaping far ahead. We can always add to the legislation. Criminal Justice Bills seem to appear at every Session, so there is no reason to doubt that the opportunity will arise again.

On the final point made by the noble Lord, Lord Alexander, when we reach the amendment of the noble Lord, Lord Clinton-Davis, we shall see whether his very understandable concern, which I share, is catered for. I believe that it probably is by the way in which the Government seek to provide safeguards. But we shall come to that matter later.

Viscount Bledisloe: My Lords, perhaps I may ask a procedural question. Clearly, the first logical question is whether one reduces the list to the size wanted by the noble Lord, Lord Thomas of Gresford. If one decides not to do that, it seems to me that everyone is agreed that the Government's pruning is an improvement. However, if the House accepts the noble and learned Lord's amendments which prune the list, can it go on

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and substitute the very much shorter list of the noble Lord, Lord Thomas, or will it be said that that has been pre-empted by the governmental pruning?

Lord Thomas of Gresford: My Lords, I have taken advice on that issue. I understand that I would be able to move my amendment in its proper place.

Lord Goldsmith: My Lords, on advice, I agree with that. I am grateful to noble Lords who have spoken in this short debate. I recognise, as I did last week, that there are sincerely held views about the desirability of including these provisions at all. That was the debate which we had in detail and decided last week.

I thank the noble Baroness, Lady Anelay, for her support, but, as she said, the provision involved discussion and a degree of compromise. As a number of noble Lords have said during the debate, ultimately it is a question of judgment. For these purposes, we believe that the judgment reached, at least on both Front Benches, is just and appropriate.

Before turning to the detailed points made by the noble Lord, Lord Thomas, and other noble Lords, I agree entirely—this is of course common ground—that it is vital for the police and the Director of Public Prosecutions to consider very carefully whether a case is appropriate before proceeding with it; and, as I said last week, that is one of the important safeguards, as is the fact that it will be for the Court of Appeal to decide whether it is in the interests of justice to proceed. We may return to the issue of safeguards and I shall say something about them then.

I also agree, for the same reason, with the noble Lord, Lord Carlisle of Bucklow, that this is a right which will be used sparingly. Reducing the list means that the opportunity for using it is significantly reduced. The noble Baroness, Lady Anelay, gave some figures which might give some indication in relation to that. Having said that, I remain of the view that the pruning proposed by the Government takes adequate and proper account of the concerns expressed.

Amendment No. 155 goes too far. Despite what the right reverend Prelate the Bishop of Worcester said, we do not see the principle behind the shorter list; nor, for that matter, did Lord Justice Auld. It is right to recollect that although, as a number of noble Lords have remarked, the Law Commission made an important recommendation in relation to double jeopardy, so did Lord Justice Auld in his very important report on access to justice. He was in favour of not limiting the proposal to murder. He recommended that it should extend to other grave offences punishable with life and/or long terms of imprisonment. The Government's list in the main covers offences which are punishable by life imprisonment. He said—and I commend it to noble Lords:

    "What principled distinction, for individual justice or having regard to the integrity of the system as a whole, is there between murder and other serious offences capable of attracting sentences that may in practice be as severe as the mandatory life sentence? Why should an alleged violent rapist or robber, who leaves his victim near dead, or a large scale importer of hard drugs, dealing

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    in death, against whom new compelling evidence of guilt emerges, not be answerable to the law in the same way as an alleged murderer?".

I note that the list of the noble Lord, Lord Thomas, does not include all offences in which death is caused. It does not include manslaughter, or arson endangering life in which it may be a matter of lucky happenstance that death does not in fact result, but the culpability of the offence may be just as great.

We do not think that it should be possible for a person who has been acquitted of a violent rape to escape being retried if new and compelling evidence comes to light. Equally, we do not think that it is right to exclude the case of someone directing a terrorist organisation, which may very well be dealing in death. I give way to the noble and learned Lord.

Lord Lloyd of Berwick: My Lords, if the noble and learned Lord the Attorney-General is looking for a principled distinction, surely there is a very clear one: murder is subject to a mandatory sentence of life imprisonment, a point on which no doubt he will rely when we come later to other amendments. What is wrong with that as a principled distinction?

Lord Goldsmith: My Lords, I shall not have the pleasure of dealing with that part of the debate today, although I shall read with interest of course all that is said. The principle here is the principle of finding the right balance where particularly serious crimes can be the subject of a retrial if new and compelling evidence comes to light.

The noble Lord, Lord Thomas, says that the public disquiet test he poses would be satisfied only in the case of murder. I disagree and would strongly suggest that kidnappers, terrorists and violent rapists, if allowed to walk free, although there is new and compelling evidence which cannot be tested again, would also satisfy the test of public disquiet. That is the difference between us. The public interest in obtaining proper convictions in those circumstances is plain. To reduce the list simply to murder, soliciting murder and genocide would exclude too many offences. Noble Lords will note that not even attempted murder is included. With respect, I do not understand the principle for including soliciting murder but not attempted murder. We owe it to victims and their families to make those provisions.

On Question, amendment agreed to.

Lord Goldsmith moved Amendments Nos. 145 to 154:

    Page 219, line 13, leave out "or 2"

    Page 219, line 17, leave out "or 2"

    Page 219, line 22, at end insert—

    "Assault by penetration

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