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Lord Thomas of Gresford: My Lords, your Lordships will recall that on the previous day on Report I said that, in considering whether a retrial should be permitted, it is necessary to strike a balance between the rights of the victim, the rights of an acquitted defendant, the resources available to the justice process and the resources available to the investigation by the police.
I conceded from these Benches that we were prepared to accept that the ancient double-jeopardy rule should be invaded to a very limited and narrow degree. Indeed, it is interesting that in the reign of Henry VII, despite the double-jeopardy rule, which was then part of the common law, an Act expressly permitted a second trial by appeal following an acquittal on an indictment for homicide only. The Act was motivated, so it was said, by,
We on these Benches have taken the view that the Government's approach introduces into the schedule far too many offences which would be subject to the retrial procedure. If one looks for balance, as I outlined it, one is driven back to consider which cases really cause public disquiet. In any event, the whole purpose of introducing these provisions is to deal with public disquiet. The cases which have attracted publicity in the past are, without exception to my knowledge, cases of murder or homicide. It is those cases where acquitted defendants have, in very rare instances, gone on record as saying, "I have been acquitted. I cannot be prosecuted again, and I did it". It is in those cases, where there is a feeling that the police investigation has not been thorough enough or that people have been wrongly acquitted, that public disquiet arises.
I have said to your Lordships on many occasions that the whole basis of the criminal justice system rests not with lawyers or judges but with the people. If the people do not have confidence in the justice system for one reason or another, injustice will occur because witnesses will not come forward and jurors will not convict in appropriate cases. Therefore, where there is a degree of disquiet, as happens when a person is acquitted of murder and then confesses to having committed the crime, we concede that the double-jeopardy principle should be breached.
We oppose the amendments put forward by the Government and we oppose the scope of Schedule 4 as originally drafted. I suppose one can say that at least the amendments cut down the size of the list. But we cannot see that it is in the public interest that cases listed in Schedule 4, even as amended, should be the subject of the use of resources in the judicial process and police investigations and that they should breach the principle of finality about which we said so much on the previous occasion.
If there is to be an exception, it should be as the Law Commission decided after considerable thought in its report, Double Jeopardy and Prosecution Appeals, Cmnd. 5048, published in 2001 and presented to Parliament in March 2001. We take a principled stand on the basis of what is recommended in that report, and we believe that the Government have not justified going beyond the Law Commission's views.
Baroness Anelay of St. Johns: My Lords, it may be for the convenience of the House if I speak at this juncture to put on the record clearly the position of these Benches rather than wait until the end of what I am sure will be a detailed and interesting debate.
I made it clear in Committee that I believed it was vital to provide safeguards for the rules on relaxing double jeopardy. I now believe that the amendments put forward in this group by the Government go a long way towards achieving just that. It is true that only time and events will prove whether they go far enough, but I am prepared to accept them today.
Throughout, our view has been that retrial should be limited. If it is to happen at all, it should be limited to very serious offences. From a purely practical point of view it is essential that the police and the prosecution service should be given the opportunity to demonstrate that the new proposals work fairly and effectively before we roll out the relaxation of double jeopardy as widely as the Government intended in their first list of offences.
I have looked closely at the list now proposed by the Government. I am grateful to the noble and learned Lord the Attorney-General for meeting with me during the September sitting to discuss how to achieve some agreement on these issues. We both gave a little in what has to be a compromise.
From speeches made from the Benches behind me last week, the noble and learned Lord will be aware that several of my noble friends remain deeply concerned about the principle of retrial being available. We on the Front Bench have accepted that in certain limited terms it will be available. I know that the purists among us on the Back Benches would have been happier if the Government had not brought forward this part at all.
On the amendments relating to safeguards and restricting the list in the schedule, I have not yet received from any on my team any objections to the government amendments. I now accept that the Government's new schedule would cover the most serious offences, including those most commonly associated with international crime and terrorism. I accept that it vastly reduces the number of acquitted persons who may face the possibility of a retrial. I estimate the reduction, taking the annual figure, to be about 65 per cent. Despite all that, we have to take note that it will be vital for the Director of Public Prosecutions and the police to consider very carefully in each and every case whether it would be right, safe or appropriate to seek a retrial and if they determine to proceed, to ensure that the process is carried out with the utmost care and reliability.
The fact remains that the Government and the police have already raised the hopes of victims and the relatives of victims with the promise of this new power. It must not be used incautiously or unfairly. Both the innocent accusedthere will remain innocent accused who may be caught by thisand the victim would, thereby, suffer even more than they do now. We must avoid that. In the mean time, I support the amendments and in so doing that will reduce the amount of time that I shall need to trouble your Lordships in speaking to later groups of amendments.
Lord Carlisle of Bucklow: My Lords, I support the principle of doing away with the double-jeopardy rule. The defence has always had the right to obtain a new trial on the basis of fresh evidence that was not available at the time of the original trial, so if the prosecution has genuine new evidence, equally it should have the right to apply for a retrial. It is vital that such a measure should be used sparingly; it is vital that it should be limited in the offences that it covers; and it is vital that there are adequate safeguards in the way that it is used. Presumably we shall come to those safeguards later in the debate.
I accept that, as the Attorney-General says, in the end it will be a matter of balance as to which offences will be covered. I am sure that my noble friend Lord Thomas is right to say that in the past we have argued for or considered the issue of double jeopardy in murder or manslaughter cases, but how can one be sure that all offences with a high profile will necessarily fall into that category in the future? Clearly, it is arguable that someone who is charged, for example, with a series of rapes or with arsonoffences of equal seriousness
The Lord Bishop of Worcester: My Lords, in one sense, after the very thorough debate on double jeopardy at the previous day of Report stage, there is little more to be said. On that occasion, the principle having been conceded by the House, noble Lords raised a theme that bears on whether the list provided by the Government or the list provided by the Benches opposite would be the better list. Many noble Lords fear that, the double-jeopardy principle having been breached once, we could be on a slippery slope and that there will be pressure for anything that could be called high profile to find its way on to the list. Therefore, to my mind, to judge between the amendments before us, we should consider which set of amendments provides some kind of principled division between the offences that can be retried and those that cannot.
It seems to me that the amendment in the name of the noble Lord, Lord Thomas of Gresford, limits the offences in a way that can be described as principled; namely they are offences in which life has been taken. If we are to make this major change, as the House has decided, it is extremely important to reassure those of us who believe that this is a dangerous precedent that there is a principled bulwark against the gradual accretion of crimes to the list simply under pressure from the press or from a public outcry in a particular place. Therefore, I commend the amendment that limits those offences that would appear in the Bill to those in which life has been taken.
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