§ 3.19 p.m.
§ The Minister of State, Home Office (Baroness Scotland of Asthal)
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.— (Baroness Scotland of Asthal.)
§ On Question, Motion agreed to.
§ [Amendment No. 143B not moved.]
§ Schedule 4 [Qualifying offences for purposes of Part 9]
§ The Attorney-General (Lord Goldsmith) moved Amendment No. 144:
Page 219, line 7, leave out paragraph 5.
§ The noble and learned Lord said: My Lords, in moving Amendment No. 144, I shall speak also to the other amendments standing in the name of my noble friend Lady Scotland of Asthal—Amendments Nos. 145 to 154. Also in this grouping is Amendment No. 155, standing in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia.
§ Schedule 4 to the Bill, to which the amendments relate, contains the list of offences that the Government presented as those most suitable for the new retrial procedures. Opposition to this part of the Bill has focused on three points: first, some have criticised the schedule for being too extensive; secondly, some thought that the list did not comprise the most serious crimes; and, thirdly, others in another place argued that some of the crimes were high volume and that, instead of the retrial procedures being used in exceptional circumstances, retrial would therefore be used as a matter of routine.
§ The Government have listened carefully to the criticisms levelled at Schedule 4 in both Houses. What comprises the most serious offences remains a matter of judgment, but I believe that the retrial procedure should apply to offences other than murder, soliciting murder and genocide alone, as was proposed by the Opposition.
§ Having said that and having looked again at this matter, we believe there is scope to reduce the number of offences that should qualify for the retrial 692 provisions. Therefore, we are proposing a number of amendments which will help to focus the list on the gravest offences and remove those which are not of the highest order of seriousness but are relatively high-volume offences—for example, causing grievous bodily harm.
§ I should point out that, although we have deleted a number of offences, the list overall does not look shorter. However, that is because we need to include in the schedule the new sex offences which are regarded as of equivalent seriousness to rape or attempted rape under the new Sexual Offences Bill. Because those offences are brigaded under heads, they seem to go up in number but they are equivalent in terms of seriousness. I hope that the amendments will allay the fears of noble Lords who have expressed concerns about this part of the retrial provisions.
§ With your Lordships' leave, I shall wait to hear what the noble Lord, Lord Thomas, says about Amendment No. 155 and then respond. I beg to move.
§ 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,The King remembering how Murders and slaying of his Subjects daily do increase in this Land … and thereby great Boldness is given to Slayers and Murderers".That appeal procedure—the second trial—was abolished in 1819. Therefore it lasted for some time, but only in respect of murders.
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.
693 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.
§ 3.30 p.m.
§ 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.
The noble and learned Lord was also kind enough to ensure that I had the opportunity to speak— individually in all but one case—to my own Back-Bench Bill team, most of whom, if not all, are here 694 today. Also at the Bill team meeting held as preparation for Report stage I was able to explain the objectives of the government amendments and not one of the team put forward objections to the proposals that the noble and learned Lord puts forward today.
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 accused—there will remain innocent accused who may be caught by this—and 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 arson—offences of equal seriousness— 695 should be liable to be retried provided the evidence is there and the tests are met. I take the first two offences on the Attorney-General's list. Therefore, while I sympathise with what my noble friend Lord Thomas says, I do not think that one can in practice limit it as narrowly as he wishes. Therefore, I welcome what the Government have done in producing a new list at this time.
§ 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.
§ 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 696 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 697 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, 1 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
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:M
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 penetration699
§ Causing a person to engage in sexual activity without consent
§ Rape of a child under 13
§ Attempted rape of a child under 13
§ Assault of a child under 13 by penetration
§ Causing or inciting a child under 13 to engage in sexual activity
§ Sexual activity with a person with a mental disorder
§ Causing or inciting a person with a mental disorder to engage in sexual activity
- Page 220, line 10, leave out paragraph 15.
- Page 220, line 15, leave out paragraph 16.
- Page 221, line 7, leave out paragraphs 24 to 30.
- Page 222, line 15, leave out paragraph 36.
- Page 223, line 19, leave out paragraph 46.
- Page 223, line 24, leave out paragraph 47.
- Page 224, line 15, leave out paragraphs 55 to 61.
§ On Question, amendments agreed to.
§ Lord Thomas of Gresford moved Amendment No. 155:
§ Leave out Schedule 4 and insert the following new Schedule—