§ 3.48 p.m.
§ Further consideration of amendments on Report resumed.
§ Clause 47 [Meaning of "terminating ruling"]:
Lord Goldsmithmoved Amendment No. 70:
Leave out Clause 47.
§ The noble and learned Lord said: My Lords, this, the first large group of government and opposition amendments, is broadly concerned with the prosecution rights of appeal listed in the Bill. Since the groupings were set out, I have come to understand that the Opposition desire to ungroup Amendments Nos. 70A and 96 and take them as two separate groups. I say that for the convenience of the House. I shall explain the government amendments first and then deal with the opposition amendments.
§ As the House is aware, the provisions are based on a Law Commission report and enjoy widespread support. I mentioned in Committee that we planned to 441 refine them. The government amendments discharge my earlier commitment. There are five main points of interest.
§ First, the Bill as currently drafted grants the prosecution a right of appeal against two kinds of judges' rulings. There are those rulings which formally bring the trial to an end, and those rulings which do not formally terminate the trial, but are so fatal to the prosecution case that the prosecution feels bound to offer no further evidence. In the Bill, the two types of rulings are referred to respectively as "terminating rulings" and "certain other rulings".
§ There has been confusion among practitioners over the meaning of the clause on "certain other rulings"—the impression having been gained that it covered rulings which were not fatal to the prosecution case. As a result, we felt that those two separate sets of provisions could benefit from some improvement in order to reduce complexity and confusion. The first purpose of the amendments, therefore, is simply to combine the two separate clauses on what I will describe as formally and de facto terminating rulings into a single route of appeal. That has resulted in greater clarity and simplicity. I commend Parliamentary Counsel's work and I hope that noble Lords will agree that the result is much better. For the convenience of the House, we have placed since yesterday in the Printed Paper Office a version of this section as it would appear if the Government amendments were accepted, so that it can be seen as a whole. That has been sent to certain noble Lords in advance.
§ Secondly, we have replaced the judge's obligation to grant an adjournment at the beginning of the appeal proceedings with a discretion to do so. As currently drafted, the Bill enables the prosecution to appeal against a ruling immediately or to ask for an adjournment to consider whether to appeal. Under the present drafting of the Bill, the judge is required to grant the adjournment on the grounds that, if the judge declined to adjourn the proceedings, the prosecution would have no time to consider whether to appeal and would exercise without proper forethought the power which it has to appeal immediately. Our concern was to reduce the potential for possible unmeritorious appeals lodged in the heat of the moment.
§ This matter was much discussed in Committee. Noble Lords impressed upon us that the judge's discretion should not be fettered in such a way. They also suggested that there might be exceptional circumstances where an adjournment would be inappropriate and that the factors which might give rise to the need for an adjournment might only be known to the judge. Having considered that, and while emphasising that the only purpose in imposing that obligation was to ensure that there was time for reflection so as to keep down unmeritorious appeals, we have accepted the points made and therefore propose to leave the question of whether there should be an adjournment to the discretion of the judges. I hope that noble Lords who spoke in Committee for discretion will be pleased with our stance. I also make 442 clear in passing the Government's intention that the granting of adjournments under this provision is likely to be subject to Rules of Court or such other guidance as may be necessary. That will be for the appropriate rules authorities to set down.
§ The third point of interest relates to rulings of no case to answer. Where the prosecution appeals against a ruling of no case to answer, we propose to allow it to nominate such earlier rulings as it specifies for the Court of Appeal to review at the same time. I shall say more about the matter later when I consider the Opposition amendments.
§ Fourthly, the government amendments deal with the matter of timing. The intention underlying the Bill in its original form was to restrict the prosecutor's right of appeal against formally or de facto terminating rulings to those rulings made before the end of the prosecution evidence. We had been intending—I signalled as much—to amend the Bill to extend that time limit to cover rulings made at "half time", but before the opening of the defence case. After further consideration, we have reached the conclusion that that would not go far enough and the amendments will therefore enable the prosecution to appeal against a terminating or de facto ruling which is made up to the end of the trial, but not after the judge's summing up has begun.
§ The reason for that is practical. It had been considered that judges' rulings made after half time would be so infrequent as to give no cause for concern. That matter had been considered before. The only possibility of such a ruling identified in the Law Commission report on prosecution appeals was a ruling on disclosure. However, there has been a recent case where a decision to stop the trial was made by the judge after the conclusion of the defence evidence. It is clear, therefore, that the prosecution right of appeal needs to cover rulings made late in the trial. I anticipate that those would be the exception.
§ Fifthly, we have amended Clause 53, which sets out the options the Court of Appeal has when it determines the appeal, to limit the clause to terminating rulings. We have also tightened up the drafting of the clause in response to comments made by noble Lords in Committee. The overall effect of these government amendments will be to make the existing provisions on prosecution appeals more practically effective and clearer to follow and implement.
§ I turn now to the opposition amendments, doing my best not to touch on those which have been ungrouped. I shall indicate briefly the Government's position on those amendments. Noble Lords will then speak to them with that in mind. Amendments Nos. 72,73,79 and 81 appear to have the aim of giving the defence the equivalent of the prosecution right of appeal against a de facto terminating ruling. As I have explained, the Bill presently gives the prosecution a right of appeal against a ruling which is formally or de facto terminating. Although the prosecutor can theoretically appeal against any ruling as a de facto terminating ruling, the requirement is to accept an acquittal in the event of losing the appeal. That means that the prosecution can appeal only against rulings 443 which are fatal to the prosecution case. Those rights of appeal had the support of the Law Commission, which stated that introducing them was largely equivalent to a defence right of appeal against conviction.
§ There is no direct equivalent for the defence of a de facto terminating ruling. There is no ruling that a judge is capable of making which would end the trial in the prosecution's favour with the defendant's conviction. So the attempt to create the direct equivalent of a prosecution appeal which the amendments envisage is wrong in principle. In practical terms it would be disastrous. Without the sanction of losing the case in the event of losing the appeal, the defence could and would appeal against any ruling made by a judge. Trials would grind to a halt and the criminal justice system would suffer considerable disruption. That is in nobody's interest.
§ In this group of amendments I am dealing with prosecution appeals against terminating rulings or de facto terminating rulings. In a later grouping we shall come to the proposed addition of a right to appeal against evidentiary rulings. I wish to keep those two rights of appeal separate in this debate, as do the groupings.
§ Lord Thomas of Gresford
My Lords, before the noble and learned Lord continues, he is aware that occasionally points of law are taken on behalf of the defence and there is a ruling which results in the defendant changing his plea to guilty—because he has to. Then, if he wishes, he may pursue a light of appeal at a later stage. 1 asked for that to be within the definition of the terminating ruling. Am I wrong?
§ Lord Goldsmith
My Lords, the way in which the clauses put forward by the Government are structured is that the prosecutor will have to agree, when making such an appeal under this section, that if the appeal is refused, then the defendant will be acquitted. There is no equivalent provision to say that a defendant using this provision has to accept that, if his appeal fails, he will be convicted. Currently, if a defendant thinks that whether or not he pleaded guilty depends solely on a point of law, he has already the right to appeal. The ruling is made by the judge. The defendant pleads guilty. He takes the matter to the Court of Appeal which, if it agrees that the trial judge was wrong in his ruling of law, will then quash the conviction—because plainly the conviction coming from a plea of guilty has been based on that ruling of law. So the defence already has that right. A prosecution does not have any right at the moment to appeal against a terminating ruling.
I wanted to comment on the Opposition amendments relating to no case to answer, but the House might be helped if the noble Lord, Lord Kingsland, intervened at this stage to say whether he wished to deal with the matter in this grouping or solely under Amendment No. 70A. Can the noble Lord help?
§ 4 p.m.
§ Lord Kingsland
My Lords, it would seem to me more appropriate to deal with that matter under the separate grouping to which the noble and learned Lord has kindly agreed, rather than now. However, if it forms part of his argument in respect of the other matters in this grouping, I would be most happy if the noble and learned Lord commented on it.
§ Lord Goldsmith
My Lords, perhaps it is simplest if I briefly state what I want to say and at least it will stand, if necessary, for the subsequent grouping.
A terminating ruling as hitherto defined in the Bill could cover a range of different kinds of ruling of which a ruling of no case to answer is only one. The effect of amendments would be to remove from the Bill a prosecution right of appeal against any terminating ruling, and would be much wider than simply removing a ruling on a no case to answer submission. I assume for present purposes that that is not the intention of those moving the amendments, and that only rulings of no case to answer are intended, although that is not the effect of the amendments as they stand.
This kind of ruling was the subject of discussion in Committee. I want first to discuss the implications of the government amendments on this issue. As currently drafted, it is possible for the prosecution to appeal only where the judge makes a ruling which either stops the trial or is so fatal that the prosecution brings it to an end by offering no further evidence. The prosecutor cannot ask the Court of Appeal to review any other rulings which preceded that fatal final ruling. However, a ruling of no case to answer is a special case. It may well be preceded by a number of earlier rulings, each of them incrementally weakening the prosecution case. The effect of some or all of those earlier rulings might contribute significantly to the judge's eventual decision to make the ruling of no case to answer.
For that reason, where the prosecution appeals against a ruling of no case to answer, we consider that it should be able to nominate such earlier rulings as it specifies for the Court of Appeal to review at the same time all as part of the same appeal. It seems to us that it is only sensible and logical that where the prosecution appeals against a ruling of no case to answer there should be arrangements for the Court of Appeal to examine formally those earlier rulings which led up to the eventual ruling of no case. In that way the Court of Appeal will have a better grasp of the case and as a whole will be able to review more effectively the judge's terminating ruling.
We say that this right of appeal is desirable in principle. Removing it would remove one of the main planks of the Bill. In the well known case of Galbraith the Court of Appeal decided that there were two kinds of ruling of no case to answer. The first, known as the first limb, applies where there is no evidence of at least one essential element of the case against the defendant. The second limb applies where there is some prosecution evidence but that taken at its highest it is such that a jury could not properly convict.
445 The first limb is concerned with a pure point of law on which the Government believe it would be entirely appropriate to enable the prosecution to seek a review of the trial judge's decision by the Court of Appeal. We agree with the Law Commission's conclusions on this point. There is no logical distinction between a terminating ruling of law made during the prosecution case and one made at its conclusion. The Law Commission stated:If a case is to fail on legal argument, it is better for public confidence in the criminal justice system that it should be susceptible to the second opinion of a higher court, than it be unappealable".Again, the Government fully concur with that view. The Law Commission drew an analogy with the present case-stated procedure in magistrates' courts, which already provides for a prosecution right of appeal on a point of law in summary cases. That is, therefore, the first limb.
I turn to the second limb, the second kind of ruling of no case to answer identified in Galbraith; namely, one where a properly directed jury could not convict on the evidence. In its explanation of this kind of ruling, the Court of Appeal also reminded us that matters of evidence are normally within the province of the jury. Where on any one possible view of the facts there was evidence that a jury might convict, the case should be left to the jury; that is, only where the evidence is self-contradictory, out of reason and all common sense is it to be considered so inherently weak and tenuous that such a ruling should be given. I refer to the remarks of Lord Justice Turner in Shipping. In other words, where the second limb of Galbraith is concerned, judges should not normally be making a ruling of no case to answer.
I indicated in Committee that I would expect it to be exceptional in practice for the Court of Appeal to overturn a judge's ruling of no case to answer falling within the second limb of Galbraith. But, given the regularity with which such rulings are made and the nature of such rulings, it is vital that the prosecution also has the right to test this kind of ruling. I gave an example in Committee, which I shall not repeat; it is recorded in Hansard.
We consider also that it would be impossible to draw a line between the first and second limb of Galbraith. The distinction between there being absolutely no evidence for an element of an offence and there being some very tenuous evidence for it is too slight to provide a basis for an important procedural distinction.
One of the themes which runs through the Bill is that the jury should be allowed to hear and to decide upon the evidence. If the judge second guesses a decision which is normally for a jury to make, it is only right that the prosecution should be able to test the judge's ruling by an appeal to the Court of Appeal. If the prosecutor wins the appeal, the evidence will then go on to be placed before the jury and the final decision on conviction or acquittal will be for the jury to make.
446 For those reasons—I hope it has been helpful to deal with them at this stage—we consider that it is entirely proper that a ruling of no case to answer and, what is more, a ruling of no case to answer under both limbs, should fall within the ambit of the Bill. That is why in due course I shall resist the amendments which seek to remove that from the Bill. I beg to move.
§ Lord Kingsland
My Lords, first I thank the noble and learned Lord for giving such a full explanation of the government proposals. He was kind enough in his characteristically hospitable way to invite the noble Lord, Lord Thomas of Gresford, and me to talk to him about these matters the other day and we are extremely grateful to him for giving us that opportunity.
Perhaps I may explain to your Lordships why we have asked for Amendments Nos. 70A and 96 to be degrouped and treated separately. We have a hierarchy of concern about Part 8. Our main concern is based on the principle of equality of arms. What is sauce for the goose should be sauce for the gander. If the prosecution is to have a right of appeal against evidentiary decisions by the trial judge, why should not the defendant have a similar one?
That is our main theme, but we have two sub-themes. If the Government are to get their way on prosecution appeals only, we believe, first, that it should exclude appeals to decisions of no case to answer by the trial judge. In our view those decisions fall into a very special category.
Secondly, in order to contain the huge extra burden that will be imposed on the Court of Appeal Criminal Division there should be some constraint on the face of the Bill on the type of evidentiary decisions which are subject to appeal. As I shall explain to your Lordships, if 1 have the opportunity later today, those constraints would fall into two categories of evidentiary appeal: first, those which concerned errors of law and/or secondly, appeals against evidentiary decisions which were so unreasonable that no reasonable judge could possibly have come to the conclusion to which he came.
For the purposes of this group of amendments I shall address only the issue of principle, the issue of equality of arms. As noble Lords are well aware, the principle of equality of arms is laid down in the European Convention on Human Rights. There is some jurisprudence about it in the courts.
It seems to us that there is a real possibility that these provisions in the Bill breach that principle. The Government have already proclaimed that the Bill accords with the European Convention on Human Rights and that is an assumption that we all have to make in the course of considering the Bill. However, it is important at this juncture to signal that here is a possible area where the Government have made a misjudgment.
The matter was debated at some length in Committee. The noble and learned Lord the Attorney-General said in response to argument that the Opposition and, indeed, the noble Lord, Lord Thomas of Gresford, and the Liberal Democrat Front Bench, 447 are wrong about their equality of arms proposition because a defendant will always have the right in appealing against his or her conviction, to argue, as part of his or her appeal, that the trial judge made an incorrect decision about the evidence.
That is of course perfectly true, but, as we pointed out, even if the Court of Appeal Criminal Division comes to the conclusion that the trial judge has made an incorrect evidential decision, it may go on to say that, nevertheless, the conviction is perfectly safe because a reasonable jury, considering the remaining admissible evidence, would have found the defendant guilty.
In our discussions the other day with the noble and learned Lord the Attorney-General, his response to that was to say, "Look at the Bill: look at the kind of decisions that prosecution appeals are aimed at. They are aimed at two types of decisions: first, terminating decisions, or decisions which would in effect be terminating; and, secondly—the other class of decisions which we have only just introduced at this stage—evidentiary decisions which would significantly weaken the prosecution case. Imagine the situation in which the defence had equivalent rights. Suppose in the Bill the defence"—as we would wish—"had the right to appeal against decisions that if the judge had made them correctly would have been terminating, or decisions which, if the judge made them correctly, would have significantly strengthened the defendant's case".
The noble and learned Lord went on to say, "Suppose these evidentiary decisions were appealed against at the Court of Appeal and the Court of Appeal held that the defendant's arguments were correct and that the trial judge was wrong. Would it be conceivable that the Court of Appeal would nevertheless have gone on to say that the conviction was safe? No, it would not", said the noble and learned Lord the Attorney-General, and he referred me specifically to two cases—the cases of R v. Sargent and R v. Smith. I went off and looked at Blackstone to refresh my memory, like a constable in the witness box, about the range of cases which had been decided on these matters over the past few years.
I have thought very carefully about the noble and learned Lord's argument. In the end I came to the conclusion that it was not convincing. My reason for deciding that relates to the very strong position taken by the Opposition about the principle of trial by jury— the right of a defendant, in a criminal trial, to be tried by his peers.
In the case of prosecution appeals under the Bill, the prosecution goes to the Court of Appeal, and whatever decision the Court of Appeal makes—unless it falls into the terminating category—the matter goes back to the criminal trial. The evidence continues to be heard within the context of the Court of Appeal's decision, and the jury takes the final decision. That will not be the case for the defendant. In the defendant's case, if his rights only remain to raise evidentiary points in the Court of Appeal after conviction, it will not be the jury that determines his fate, it will be the 448 three Law Lords in the Court of Appeal who decide whether or not a reasonable jury would have come to a particular conclusion.
For those reasons we feel that it is perfectly proper, and indeed right, for us to continue to require either that the provisions for prosecution appeals are removed from the Bill or that the defendant is given similar rights to the prosecution.
§ 4.15 p.m.
§ Lord Thomas of Gresford
My Lords, I support everything said by the noble Lord, Lord Kingsland, on the topic. I shall not repeat his arguments. Perhaps I may give an illustration of the kind of situation which we both have in mind. The matter is very fresh in my mind, having sat through a judgment that took one and a half hours this morning.
Let us suppose that under the Bill—the Bill having been put into effect—an application is made in the course of the defence for the defence statement to be put before the jury, and the judge rules against it. The trial proceeds and ultimately the defendant appeals on the basis that the judge's ruling was wrong and that the defence statement, had it been before the jury members, might very much have influenced their minds. It would, for example, have rebutted inferences that might be drawn under Section 34 of the 1994 Act, where a person does not answer when questioned in a police station; he does not give facts upon which he subsequently relies.
Let us further suppose that the case then goes to appeal—and the appeal that was heard today is more than three years since the date of the beginning of that trial—and the judges in the Court of Appeal were to decide that the defence statement should in all fairness have gone before the jury; but, they look at the facts and at the prosecution case and they conclude that, notwithstanding their ruling in the hypothetical situation I am putting forward, the conviction was safe anyway. That is simply not the kind of situation that arises if there is a prosecution appeal on a matter envisaged under these provisions. Under these provisions, if it were held that the judge was wrong to exclude some evidence the prosecution wanted to put before the jury, the trial goes on and the defendant remains at risk.
The noble Lord, Lord Kingsland, is absolutely right to point out that there is no equality of arms in these provisions. We should not be enacting legislation which contravenes a basic principle of the European convention. For those reasons, we on these Benches will support the noble Lord, Lord Kingsland.
§ Lord Goldsmith
My Lords, I profess to being extremely disappointed by what both noble Lords have said. Let me deal with the points raised. First, there is the principle that there should be a prosecution right of appeal—and we are here concerned with the principle that there should be a prosecution right of appeal against rulings which bring the case to a stop, whether it is because the ruling of the judge actually is that the case must stop, or because the effect of the ruling is that the prosecution cannot continue.
449 I set out some examples as an annex to a letter that I sent to noble Lords, which was placed in the Library of the House, and to which I drew attention in Committee. It included, for example, the case where a man and a young woman were found with their clothes around their ankles. When asked whether or not the woman had consented to sex, the man said: "I don't know. I didn't ask her". There was bruising to both of them. At the end of the prosecution case the judge said that he was not going to allow the case to go to the jury. That is extraordinary. The matter never therefore went to the jury to determine whether or not they were satisfied of evidence of rape.
We dealt with a recent case involving serious offences of money laundering concerned with drug-taking, where the amount at stake was around £10 million. On day 66, the trial judge stayed the case against the defendants in the trial and nine other defendants in allied trials because of a failure of disclosure by the prosecution. He said in terms that there was no deliberate intention to mislead the court and that a mistake had taken place. He also said that, although the document had not been disclosed when it should have been, it had now been disclosed, that the position was not irretrievable and had been retrieved. None the less, the judge took the view that it was right to bring the case to a complete stop.
The Government believe that in such cases it is only right, in the interests of the public and victims in society, that that sort of ruling should be capable of being tested before another court. If the trial judge was right, so be it; if the Court of Appeal takes the view that he was wrong, the case should not have been brought to an end. I am therefore very disappointed by the proposition suggested by the noble Lord, Lord Kingsland, that the Government should simply abandon the possibility of having prosecution rights of appeal. The Government will not accept it.
§ Lord Kingsland
My Lords, I am extremely grateful to the noble and learned Lord for giving way. At the outset of my remarks, I was particularly careful to say that we had a hierarchy of concerns. There are ways of allowing prosecution appeals into the legislation, perhaps for perfectly sensible reasons, provided that the Government's solution is balanced. Our objection is that the Government propose a solution that is not balanced and fair and does not respect the rights of the defendants.
§ Lord Goldsmith
My Lords, I am picking up on the words of the noble Lord, who said towards the conclusion of his remarks that the Government ought either to remove prosecution rights of appeal from the Bill or take another course. He therefore proposes that it would be acceptable that there should be no prosecution right of appeal. I strongly disagree with that proposition.
The noble Lord makes a fundamental point about equality of arms. Obviously, we have looked at the matter very carefully. The principle of equality of arms is one aspect of the right to a fair hearing under Article 6 of the European Convention on Human Rights. But 450 the Strasbourg court has made clear that the question of whether a trial conforms to the standard required by Article 6 will be decided on the basis of the trial as a whole, including any appeal proceedings.
The principle of equality of arms involves striking a fair balance between the parties to ensure that the defendant has a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis the prosecution. The content and operation of the principle does not require that the parties to a criminal trial should have exactly the same procedural rights. The defendant always has a general right of appeal against conviction at the conclusion of the trial; the prosecution has no such right. We have not suggested that the prosecution should have such a right, even though some have recommended it, or that it should have a right to appeal against unreasonable jury verdicts. There is sufficient balance to the interlocutory appeal that we propose.
I am grateful to the noble Lord for thanking me for holding the meeting and writing to him and the noble Lord, Lord Thomas. I pointed out then—and he graciously accepted my point—that the case law of the Court of Appeal is such that it is not possible that the defendant would be disadvantaged in his appeal, by comparison with a prosecution right of appeal.
Let us bear in mind that, at this stage, we are concerned with only one kind of ruling. Such a ruling is so serious that it says either that the case cannot continue at all—if, for example, it must be stayed for abuse of process or because no offence is made out in law—or that certain evidence is inadmissible; for example, that the prosecution cannot continue with the case. We are concerned with a fundamentally fatal ruling by the court. If a judge faced with such an application decides that there is no fatal flaw, but the Court of Appeal disagrees on grounds that there was insufficient evidence and states that the case should have been stayed, it is inconceivable that the Court of Appeal would allow a conviction to stand.
The two cases to which the noble Lord, Lord Kingsland, referred make that very clear.
My Lords, I am grateful to the noble and learned Lord for giving way. He is right in the very general statement that he makes. But we must bear in mind that, when drafting legislation, especially that dealing with people's rights, if we express one thing and omit the other there is an assumption that the other is necessarily admitted. There is a well known Latin phrase for that, but one must not use it now. I would have thought that it could do no harm, but would clarify matters, if the rights of the defence were inserted in the way that my noble friend has so wisely suggested.
§ Lord Goldsmith
My Lords, I am grateful for that intervention. The defendant's right to appeal is already enshrined in statute and applied in leading judgments and precedents of the courts. At present, there is no prosecution right of appeal at all during the trial, and that is why we seek to introduce one.
451 The two cases to which I have referred the noble Lord, Lord Kingsland, are important. It is worth referring to them briefly. In the case of Sargent, decided by the House of Lords, the noble and learned Lord, Lord Hope of Craighead, said:The question is, as Mr Houlder QC for the Crown accepted, whether the jury would inevitably have convicted"—I repeat, "inevitably have convicted"—if the transcript of the interview had been edited so as to exclude all mention of the intercept".The point in the case was whether the transcript should have been allowed in. In considering the appeal, the Court of Appeal thought that the trial judge was wrong in allowing it in. But the question was not whether they thought that the jury might have convicted, but whether it was inevitable that the jury would have convicted, if that evidence had not been in.
Secondly, in the case of Smith, the question arose of what should happen if the trial judge wrongly rejects a submission of no case yet the defendant goes on to give evidence. It is clear from the judgment of the Court of Appeal that the defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the prosecution case would be an abuse of process and fundamentally unfair. Even in the extreme case where the defendant goes on to give evidence, the conviction should be regarded as unsafe.
As I said previously in answer to the intervention of the noble Lord, Lord Thomas, in the event that a defendant pleads guilty on the basis of an incorrect ruling, the Court of Appeal will quash the conviction. Equally, it will quash the conviction if a stay ought to have been granted. We have a number of such examples going through the courts.
In the two cases of Francom and Togher, the Court of Appeal has made clear that fairness for Article 6 purposes goes along with unsafeness for appeal purposes. If something is unfair in accordance with Article 6 of the convention, the Court of Appeal will not allow the conviction to stand.
With respect, the equality of arms principle is not a good point to take. The defendant already has a general right which is even more extensive than the right that the prosecution here seeks. Finally, the noble Lord's argument fails to address at all my opening point. Under the head of prosecution rights of appeal, the prosecutor, when seeking leave, must say, "I accept and I agree that if leave is not granted or if leave is granted and the Court of Appeal dismisses the appeal, then this man is entitled to be acquitted".
No corresponding proposition is proposed for the defendant. Therefore, the effect of including the rights to which the noble Lord refers would mean that the defendant would have the ability to appeal any ruling—I repeat, any ruling—made by the judge with no sanction attached to it at all. If the Court of Appeal disagreed, the trial would simply go on. I repeat that that would simply bring the administration of justice to a grinding halt because appeal after appeal would be brought.
452 While I fully respect the concerns for the rights of defendants, the Government carefully considered those; the Law Commission considered those. The Law Commission did not see this as a problem— neither did we—because the defendant has the extensive right of appeal which gives him all the safeguards and a greater right than the prosecution would have.
§ 4.30 p.m.
§ Lord Kingsland
My Lords, once again, I am most grateful to the noble and learned Lord for his reply. I would not want your Lordships to think that the Opposition is opposed to Part 8 in principle. On more than one occasion, we have set out to the noble and learned Lord what we consider to be a reasonable solution to the issues that he seeks to face. A properly balanced system giving equivalent rights to prosecution and defence could be constructed. It could be constrained by the requirement that leave to appeal be given only for either an error of law on the basis that the decision by the trial judge was so unreasonable that no reasonable trial judge could have come to such a conclusion.
From what the noble and learned Lord has said, my understanding is that he is not prepared to accept such a solution. That being so, I would like to seek the opinion of the House.
§ Lord Goldsmith
My Lords, the noble Lord has not moved his amendment yet. I should certainly like to know what the House thinks about my amendment, if the Question could be put.
§ 4.33 p.m.
§ On Question, Whether the said amendment (No. 70) shall be agreed to?
§ Their Lordships divided: Contents, 104; Not-Contents, 111.454
|Division No. 2|
|Ackner, L.||Chorley, L.|
|Allenby of Megiddo, V.||Christopher, L.|
|Amos, B. (Lord President)||Clarke of Hampstead, L.|
|Ampthill, L.||Clinton-Davis, L.|
|Andrews, B.||Colville of Culross, V.|
|Archer of Sand well, L.||Condon, L.|
|Bach, L.||Corbett of Castle Vale, L.|
|Bassam of Brighton, L.||Crawley, B.|
|Beaumont of Whitley, L.||Darcy de Knayth, B.|
|Berkeley, L.||David, B.|
|Bernstein of Craigweil, L.||Davies of Coity, L.|
|Billingham, B.||Davies of Oldham, L. [Teller]|
|Blackstone, B.||Desai, L.|
|Bledisloe, V.||Donaldson of Lymington, L.|
|Borrie, L.||Donoughue, L.|
|Brett, L.||Dormand of Easington, L.|
|Brooke of Alverthorpe, L.||Dubs, L.|
|Brookman, L.||Eatwell, L.|
|Burlison, L.||Erroll, E.|
|Campbell-Savours, L.||Evans of Temple Guiting, L.|
|Carter, L.||Farrington of Ribbleton, B.|
|Filkin, L.||Massey of Darwen, B.|
|Gale, B.||Mitchell, L.|
|Gavron, L.||Monson, L.|
|Gibson of Market Rasen, B.||Morris of Manchester, L.|
|Goldsmith, L.||Pitkeathley, B.|
|Gordon of Strathblane, L.||Plant of Highfield, L.|
|Gould of Potternewton, B.||Ramsay of Cartvale, B.|
|Grocott,L.[Teller]||Rendell of Babergh, B.|
|Harrison, L.||Roll of Ipsden, L.|
|Haskel, L.||Rooker, L.|
|Hayman, B.||Sainsbury of Turville, L.|
|Hilton of Eggardon, B.||Sandwich, E.|
|Hollis of Heigham, B.||Scotland of Asthal, B.|
|Hoyle, L.||Sewel, L.|
|Hughes of Woodside, L.||Sheldon, L.|
|Hylton, L.||Simon, V.|
|Irvine of Lairg, L.||Smith of Gilmorehill, B.|
|Janner of Braunstone, L.||Stallard, L.|
|Jordan, L.||Symons of Vernham Dean, B.|
|Judd, L.||Temple-Morris, L.|
|Lane, L.||Turnberg, L.|
|Lea of Crondall, L.||Turner of Camden, B.|
|Lipsey, L.||Walpole, L.|
|Lockwood, B.||Warner, L.|
|Macdonald of Tradeston, L.||Warwick of Undercliffe, B.|
|McIntosh of Haringey, L.||Weatherill, L.|
|McIntosh of Hudnall,B.||Whitaker,B.|
|MacKenzie of Culkein, L.||Wilkins, B.|
|Mackenzie of Framwellgate, L.||Williams of Elvel, L.|
|Mallalieu, B.||Williamson of Horton, L.|
|Marsh, L.||Woolmer of Leeds, L.|
|Addington, L.||Hodgson of Astley Abbotts, L.|
|Anelay of St Johns, B.||Holme of Cheltenham, L.|
|Ashcroft, L.||Hooper, B.|
|Astor of Hever, L.||Howe, E.|
|Attlee, E.||Howe of Aberavon, L.|
|Avebury, L.||Howe of Idlicote, B.|
|Barker, B.||Hunt of Wirral, L.|
|Blatch, B.||Kennedy of The Shaws, B.|
|Bradshaw, L.||King of Bridgwater, L.|
|Bridgeman, V.||Kingsland, L.|
|Brooke of Sutton Mandeville, L.||Linklater of Butterstone, B.|
|Brougham and Vaux, L.||Livsey of Talgarth, L.|
|Burnham, L.||Lloyd of Berwick, L.|
|Buscombe, B.||Lucas, L.|
|Byford, B.||Ludford. B.|
|Campbell of Alloway, L.||Luke, L.|
|Clement-Jones, L.||Macfarlane of Bearsden, L.|
|Coe, L.||Maclennan of Rogart, L.|
|Colwyn, L.||McNally, L.|
|Cope of Berkeley, L. [Teller]||Maddock, B.|
|Craigavon, V.||Mar and Kellie, E.|
|Crathorne, L.||Mayhew of Twysden, L.|
|Dahrendorf, L.||Miller of Chilthorne Domer, B.|
|Dholakia, L. [Teller]||Miller of Hendon, B.|
|Dixon-Smith, L.||Monro of Langholm, L.|
|Elton, L.||Montrose, D.|
|Ezra, L.||Moynihan, L.|
|Falkland, V.||Newby, L.|
|Ferrers, E.||Noakes, B.|
|Finlay of Llandaff, B.||Northover, B.|
|Fowler, L.||Oakeshott of Seagrove Bay, L.|
|Glentoran, L.||O'Cathain, B.|
|Goodhart, L.||Onslow, E.|
|Goschen, V.||Park of Monmouth, B.|
|Hamwee, B.||Phillips of Sudbury, L.|
|Hanham, B.||Plumb, L.|
|Hannay of Chiswick, L.||Plummer of St. Marylebone, L.|
|Harris of Peckham, L.||Redesdale, L.|
|Harris of Richmond, B.||Rennard, L.|
|Hayhoe, L.||Renton, L.|
|Higgins, L.||Rodgers of Quarry Bank, L.|
|Roper, L.||Thomas of Gwydir, L.|
|Rotherwick, L.||Thomas of Walliswood, B.|
|Scott of Needham Market, B.||Thomson of Monifieth, L.|
|Seccombe, B.||Tope, L.|
|Sharp of Guildford, B.||Trefgarne, L.|
|Shutt of Greetland, L.||Trumpington, B.|
|Simon of Glaisdale, L.||Wallace of Saltaire, L.|
|Skelmersdale, L.||Wallace of Saltaire, L.|
|Skelmersdale, L||Walmsley, B.|
|Steel of Aikwood, L.||Watson of Richmond, L.|
|Stern, B.||Wedderburn of Charlton.L.|
|Taverne, L.||Wigoder, L.|
|Taylor of Warwick, L.||Wilcox, B.|
|Thomas of Gresford, L.||Worcester, Bp.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.45 p.m.
§ Lord Kingslandmoved, as an amendment to Amendment No. 70, Amendment No. 70A:
Before Clause 48, insert the following new clause—
§ "APPLICATION OF PART 8
Nothing in this Part shall apply to terminating rulings based on the submission of no case to answer.
§ The noble Lord said: My Lords, I am not sure what the consequences of the last vote are for this amendment, but I shall speak to it. The noble and learned Lord the Attorney-General has already expressed some views about what I am about to say. He will no doubt add further ones when I conclude. I shall be brief.
§ Amendment No. 70A would exclude from the definition of "terminating ruling" in the Bill decisions by the trial judge of no case to answer. In our view, those decisions are of a particular and specific character because they involve by the trial judge a view uniquely and solely of the facts of the case and of the evidential support for those facts. When a trial judge considers a proposal of no case to answer by prosecuting counsel, he is looking at both the evidence given by the prosecution witnesses and their demeanour while giving it. If there is some evidence under the Galbraith rule, he will seek to determine whether it is so slender or far fetched as to be wholly valueless.
§ It is almost inconceivable that the Court of Appeal Criminal Division would be in a position to second-guess the trial judge about such an exercise of discretion. In those circumstances, the decisions by the trial judge of no case to answer should be excluded from the Bill. I beg to move.
§ Lord Thomas of Gresford
My Lords, I spoke on this principle in Committee, and support the view expressed by the noble Lord, Lord Kingsland, on Report. One of the matters that concerns the Government is the long trial—the ruling of no case to answer at the end of six or nine months of a long trial. It then appears that a lot of money has been wasted. That sort of thing makes newspaper headlines and leads to criticisms of the system. In precisely that sort of case, it would be virtually impossible for the Court of Appeal to second-guess the view of the trial judge. That judge has sat through all the 455 proceedings, heard the evidence, is familiar with the schedules and exhibits and the circumstances of the case, and the prosecution have failed to satisfy him that there is sufficient evidence to go to a jury. How a Court of Appeal could then sit down for weeks and weeks, read through the same material and transcripts of the evidence and come to a different conclusion baffles me.
If the main problem—the ruling at the end of a long prosecution case—cannot be resolved in that way, it is wrong in principle to extend it to the shorter case when perhaps the Court of Appeal could have a better grasp of the issues.
§ Lord Ackner
My Lords, would the noble Lord assist me? I recollect a case in Hong Kong when it was perfectly clear that after many, many days the judge concluded that he just could not cope. Therefore, he said that there was no case to answer. As a result, a case that was supported by strong and compelling evidence by Lord Benson, which was on the question of fraud and very complex in its detail, fell. He was absolutely outraged and astonished. Is there to be no remedy for such a case?
§ Lord Thomas of Gresford
My Lords, I recall the case very well. The prosecution case lasted for 18 months. The court sat every day from eight o'clock in the morning until one o'clock in the afternoon when the learned judge adjourned for lunch. At the end of the 18-month period, he was not in a position to give a ruling that the prosecution had established a case. What was wrong in the specific instance to which the noble and learned Lord referred was that the prosecution tried to take a huge bite out of a very large case and found that it could not sustain the basic job of a prosecution; that is, to explain the case in simple terms. That was a good example of a fraud trial running away with itself and it is the kind of thing of which I am sure the noble and learned Lord the Attorney-General would not approve.
§ Viscount Bledisloe
My Lords, can the noble Lord, Lord Kingsland, enlighten me? I see the force of the case he has described, but is that the only case in which one can make a submission of no case to answer? Why cannot the defence say that there is no case to answer because an element of the offence, properly understood, requires mens rea, let us say—a wicked mind—and the judge to say, "Yes, it does require that and there is no evidence of it, therefore I throw it out and there is no case to answer"?
If the prosecution wants to appeal and say, "No, that is not a proper interpretation of the statute", that is not an element, but is it not still a submission of no case to answer? Is the example given by the noble Lord that the judge is throwing it out because the case is evidentially too weak the only meaning of the phrase "no case to answer"?
§ Lord Kingsland
My Lords, I am grateful to the noble Viscount. As I understand it, in assessing a submission of no case to answer by the prosecution, the judge will be taking into account both the mens rea and the actus reus of the case to the extent required. He 456 decides whether or not to allow the case to go on and hear defence evidence. In my submission, there is no difference between mens rea and actus reus in that respect.
§ Viscount Bledisloe
My Lords, before the noble Lord sits down, I am saying that the difference between the prosecution and the defence is a question of whether, as a statutory element of the case, mens rea is necessary. The judge will say, "Yes, it is and there is therefore no case", and the prosecution wants to appeal because it is not there. That seems to me to be capable of being a submission of no case to answer.
§ Lord Kingsland
My Lords, I have just been told by my superior, my noble friend Lady Anelay, that I am not allowed to jump up and down at the Report stage. I am happy to comment on that when I make my concluding remarks.
§ Lord Goldsmith
My Lords, 1 am happy to say that the noble Viscount is absolutely right, as was the noble and learned Lord, Lord Ackner, if I may respectfully say so. What is bizarre about the amendment is what is proposed because it is not what the noble Lord, Lord Kingsland, has described. By virtue of the Division that has just taken place, Clause 47, which 1 was trying to take out of the Bill, remains in the Bill. That defines "terminating ruling" as,a ruling by a judge of the Crown Court… which, if given effect to, will, without any further action by the prosecution, result in the termination or stay of proceedings for the offence, or one or more of the offences, including the indictment".The proposal made by the noble Lord, Lord Kingsland, in Amendment No. 70A is to insert:Nothing in this Part shall apply to terminating rulings".Therefore, the effect of the amendment is not restricted to no case to answer or to no case to answer submissions which are the second limb of Galbraith. It is to take out of prosecution right of appeal the most important element of rights of appeal; that is, rulings by the judge that the case should come to an end.
I had understood that the noble Lord recognised the technical deficiencies of his amendment and therefore would not be moving it, but I am plainly wrong. However, the amendment will not achieve what he is saying, for the reasons I gave previously and which have been eloquently put by the noble and learned Lord, Lord Ackner, and the noble Viscount, Lord Bledisloe, as being in any event bad.
§ Lord Kingsland
My Lords, before turning to my concluding remark, perhaps I may make an observation about the comments made by the noble Viscount, Lord Bledisloe, and the noble and learned Lord the Attorney-General. I now believe that I better understand the point made by the noble Viscount. Of course, if there is an argument between the defence and the prosecution about whether the statute which is relevant to the trial does or does not require mens rea, that is clearly not a matter which falls within the 457 decision of no case to answer. It will be necessary for the trial judge to consider that point before he goes on to consider whether there is a case to answer.
I agree with the noble Viscount that a consideration of whether mens rea is or is not part of the case is not a matter which falls within the terms of no case to answer and in any event is not intended to fall within the terms of my amendment.
§ Lord Goldsmith
My Lords, will the noble Lord say whether it falls within the terms of the definition of "terminating ruling" in Clause 47?
§ Lord Kingsland
My Lords, my amendment states:Nothing in this Part shall apply to terminating rulings based on the submission of no case to answer".That is what is stated in my amendment on the Marshalled List.
§ Lord Donaldson of Lymington
My Lords, as one who has not popped up and down, perhaps I may be allowed to seek enlightenment. As I understand it, Clause 47 not having been taken out of the Bill, we have a definition of "terminating ruling". Amendment No. 70A puts an exception on the definition of "terminating ruling". The wording of the exception is such that if in any case a judge can properly say, "I rule that there is no case to answer", whether that has an evidential or legal base does not matter. If the amendment is passed, the prosecution will be unable to appeal—and for my part that is complete nonsense.
§ Lord Kingsland
My Lords, what is the noble and learned Lord the Attorney-General to make of the last two interventions? I know which one I prefer.
I am grateful to all noble Lords who have participated in the debate. I shall reflect on what they and the noble and learned Lord the Attorney-General have said and in the meantime beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 48 [Prosecution right of appeal against certain rulings]:
§ Lord Goldsmithhad given notice of his intention to move Amendment No. 71:
Page 33, line 13, leave out subsections (1) to (4) and insert—
§ The noble and learned Lord said: My Lords, I have spoken to the remaining amendments in the group but I am not entirely sure what the noble Lord's attitude is to them.
§ Lord Kingsland
My Lords, the Government have provided a large grouping in order to debate the central issue which they have promoted in Part 8 of the Bill. Your Lordships' House has pronounced on that debate in a vote and the vote went against the Government. I should have thought that the conclusions which the noble and learned Lord the Attorney-General ought to draw from that are perfectly obvious.
§ Lord Goldsmith
My Lords, I think that we are in something of a muddle because we were attempting to rewrite this. I understand what the noble Lord is saying; he treats the effect of the vote as having destroyed prosecution rights of appeal. I will not move the amendment. I will consider the position and the amendments will be back before your Lordships' House at some stage.
§ [Amendment No. 71 not moved.]
§ [Amendments Nos. 72 to 75 not moved.]
§ Clause 49 [Appeals against terminating rulings]:
§ [Amendments Nos. 76 to 89 not moved.]
§ [Amendment No. 90 had been retabled as Amendment No. 91 A.]
§ Clause 50 [Appeals against certain other rulings]:
§ [Amendments Nos. 91 and 91A not moved.]
§ Clause 51 [Expedited and non-expedited appeals]:
§ [Amendments Nos. 92 and 93 not moved.]
§ Clause 52 [Continuation of proceedings for offences not affected by ruling]:
§ [Amendments Nos. 94 and 95 not moved]
§ Clause 53 [Determination of appeal by Court of Appeal]:
§ [Amendments Nos. 96 to 110 not moved.]
§ Lord Goldsmithhad given notice of his intention to move Amendment No. 1ll:
After Clause 53, insert the following new clause—
§ "APPEALS IN RESPECT OF EVIDENTIARY RULINGS
§ 5 p.m.
§ The noble and learned Lord said: My Lords, Amendment No. 111 would have added to the Bill a new prosecution right of appeal against an evidentiary ruling or series of evidentiary rulings. The second government amendment, Amendment No. 143B, would have added a new schedule to the Bill defining the offences in relation to which such an appeal may be made.
§ We were previously debating a prosecution right of appeal against a ruling which brings the case to an end. The proposed appeal is different and has attached to it different safeguards and different conditions. I say that at this stage in order to give the noble Lord an opportunity to intervene—this issue not having been debated—if he takes the view that the matter has been resolved by the previous vote. I take the view that it has not, but if the noble Lord disagrees it would be helpful to know.
§ Lord Kingsland
My Lords, this is a separate group. I am perfectly happy to respond to anything the noble and learned Lord the Attorney-General may wish to say about this block of amendments. However, if I 460 were in his shoes—he may consider that an impertinent remark to make but, nevertheless, I shall continue—I would consider that, if I had lost the case on terminating decisions by a trial judge, my case would have been even weaker on evidentiary decisions which were not terminating.
§ Lord Goldsmith
My Lords, one of the difficulties is that we have not heard what other concerns noble Lords have over and above the point on equality of arms, which I accept was debated in the previous grouping. In the light of the noble Lord indicating that he takes the view that the case of principle to take prosecuting rights of appeal out of the Bill is made— I take the view that that is what the Opposition have achieved and that they will have to live with the consequences—it is perhaps better that I do not move the government amendments.
§ [Amendment No. 111 not moved.]
§ [Amendments Nos. 112 to 116, as amendments to Amendment No. 1ll, not moved.]
§ [Amendment No. 116A not moved.] [Amendment No. 117 not moved.]
§ [Amendments Nos. 118 and 119, as amendments to Amendment No. 117, not moved.]
§ [Amendment No. 120 not moved.]
§ [Amendment No. 121, as an amendment to Amendment No. 120, not moved.]
§ [Amendment No. 122 not moved.]
§ [Amendment No. 123, as an amendment to Amendment No. 122, not moved.]
§ [Amendment No. 124 not moved.]
§ Clause 57 [Restrictions on reporting]:
§ [Amendments Nos. 125 to 137 not moved.]
§ Lord Bassam of Brighton
My Lords, I suggest that we now adjourn during pleasure. There is a great deal of confusion as to where we stand in the Bill, Amendment No. 70 having been agreed to. It would be for the benefit of the House if we had a five or 10 minute adjournment to allow noble Lords opposite to discuss with noble Lords on our side of the House, the Ministers and perhaps officials, to ascertain exactly where we are and where we will have to go.
§ Baroness Anelay of St Johns
My Lords, I have discussed this issue with noble Lords on this side of the House. We need to find a way whereby there can be discussions, not only today on the detail of the procedure but also between now and Third Reading, as a matter of urgency, to ensure that the plans for prosecution appeals that can be agreed by the whole House are brought forward expeditiously. Certainly, in the mean time, we agree with the proposition of the noble Lord, Lord Bassam.
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Baroness. It would be most helpful to have brief discussions now and discussions between now 461 and Third Reading on how we can take these matters forward. I beg to move that the House do now adjourn during pleasure until 5.20 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 5.9 to 5.20 p.m.]
Lord Goldsmithmoved Amendment No. 138:
After Clause 58, insert the following new clause—
§ "RULES OF COURT
§ The noble and learned Lord said: My Lords, this amendment would insert a new clause enabling rules of court to be made for the sole purpose of this part of the Bill. As the new drafting which the Government wanted has not been accepted by your Lordships, the existing provisions remain on the face of the Bill and it is important, while those provisions remain, for there to be rules of court. The amendment simply provides enabling powers, and I hope that noble Lords will agree that it is sensible to have at least this provision, which enables rules of court to be made. I beg to move.
§ Lord Kingsland
My Lords, we, for our part, are delighted to support the Government on this new clause.
§ On Question, amendment agreed to.
§ Clause 59 [Interpretation of Part 8]:
§ [Amendments Nos. 139 to 142 not moved.]
§ Clause 60 [Cases that may be retried]:
§ Lord Lloyd of Berwickmoved Amendment No. 143:
Page 40, line 35, leave out subsection (6).
§ The noble and learned Lord said: My Lords, we now come to another important part of the Bill relating to the rule against double jeopardy. The purpose of my amendment is to remove Clause 60(6), which would make Part 9 of the Bill retrospective. The amendment raises a very short point—it is not, happily, a lawyer's point. It involves what is, to my mind, simply a question of elementary justice.
§ The amendment is independent of the other amendments which will be moved under this part of the Bill. Perhaps more importantly, it is independent of whether one is for or against the rule against double jeopardy.462
§ On the one hand, we heard very powerful speeches in Committee from the noble Lord, Lord Neill of Bladen, and the noble Baroness, Lady Kennedy of The Shaws, in favour of retaining the existing rule against double jeopardy. No doubt we will hear further powerful speeches later on this evening. On the other hand, we heard a powerful speech from the noble Lord, Lord Brennan, against the current rule.
§ My provisional view is that the Government have made out a case, on balance, for some relaxation of the rule against double jeopardy, but I could still be persuaded the other way. However, the Government have not begun, in my opinion, to make out a case that any change in the law should be made retrospective.
§ It is a fundamental rule of English law, stated in all the leading textbooks, that statutes should never be given a retrospective effect unless no other construction is possible. The reason for that universal rule—it is not just a rule in England but applies, so far as I know, throughout the common law world—is clear. It is so obviously unjust to take away a man's rights, or to create new liabilities with retrospective effect that Parliament cannot have so intended unless it has specifically said so.
§ What is true of judges in construing Acts of Parliament must also, I suggest, be true for us when passing Acts of Parliament. We must make sure that in curing injustices, we do not create other injustices. That is what we shall be doing if we allow Clause 60(6) to stand. That is what makes this amendment different from the other amendments and, I suggest, makes it one that ought to be acceptable to all sides of the House—those who approve of the rule against double jeopardy, those who disapprove, and even those, if I may say so, who have done some kind of a deal between the Front Benches regarding the way in which this matter is dealt with. I suggest that the retrospectivity argument overrides all the other arguments in respect of Part 9.
§ Let me take an example of what I have in mind from another part of the Bill. Clause 265 provides for a minimum sentence of five years for certain firearms offences. Let us suppose that I had committed a firearms offence but had not yet been tried when this Act comes into force. Would anybody argue—would anybody dare argue—that I ought to be subject to the minimum of five years' imprisonment when I committed my offence at a time when there was no such rule? The answer is, of course not. It would be grossly unjust and the Government have not even attempted to make Clause 265 retrospective. If they had, it would not have lasted for half an hour because it would have been plainly contrary to Article 7 of the convention.
§ What I have said about Clause 265 applies equally to Clause 60. Let us further suppose I had committed some serious offence five years ago. I had a right, under the law, to be tried by judge and jury. I had a right, under the law as it then existed, that, if acquitted, I would never be tried again for that offence. To deprive me of that existing right by changing the law now seems to be a gross injustice.463
§ There is here an important question of principle which arises, I repeat, whether or not we are in favour of Part 9. It arises because of the dislike of this House of retrospective legislation of any kind. It is not confined to retrospective legislation creating a new offence—the rule is far wider than that. But, as I have said, if subsection (6) is allowed to stand, a man who has. in a layman's eyes, been declared innocent by the court and by the jury when he has been acquitted could, as a result of Part 9, be convicted. That seems to me to be the plainest injustice.
§ Involving as it does a question of principle, I had expected that when the noble and learned Lord the Attorney-General came to reply at Committee stage, he would deal with the point of principle. However, I was disappointed. He did not attempt to answer the question of principle that I have outlined; he gave only an example of someone—a mother, I believe it was— who he said he would not be able to look in the face again if Part 9 were not made retrospective. That prompted the noble Earl, Lord Russell, to ask whether we were not in danger of legislating to meet a particular case. The noble and learned Lord replied that he had more than one case in mind.
§ The noble Earl, Lord Russell, was absolutely right. I have no doubt that even now the police have a list of those whom they would like to be tried again because they believe that they were wrongly acquitted. I suspect that that list may contain perhaps a dozen names, and I should not be surprised if it were actually in the possession of the Home Office. Of course, I do not forget the victims—we must never forget the victims—but we must remember that those who have committed crimes also have their rights.
§ By all means let us make Part 9 prospective; that should give the Government all they want. But to include a provision for the purpose of catching men and women on that list of people who have already been acquitted is to my mind profoundly shocking. I beg to move.
§ 5.30 p.m.
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, has made an overwhelming case for preventing the retrospective effect of Clause 60. The clause is controversial and, in my opinion, bad enough as it is, but to go and make it retrospective is contrary to the fundamental principles of justice in English law. I cannot understand how the Government got themselves into this position.
I would hope that, in view of the very strong case made by the noble and learned Lord, we can quickly dispose of subsection (6), which would enable a retrial to take place after a person has already been acquitted. To do so in a case that is entirely retrospective is even more wicked. I hope that the Government will see that and agree with the amendment.
§ Lord Clinton-Davis
My Lords, I, too, support the amendment. The case made by the noble and learned Lord, Lord Lloyd of Berwick, is persuasive, compelling and unanswerable. From the point of view of those who 464 subscribe to the view that civil liberties matter, it is important that this clause, or this part of the clause, should be disapplied.
I want to know from my noble and learned friend what he believes is the correct construction of Article 7 of the appropriate convention. What effect would he say it has? In my view, the case that has been put against the provision is totally unanswerable. As the clause is drafted, the police are put in a position which, while they may want it, is not in accordance with the civil liberties that I have advanced. The noble and learned Lord has prescribed making the offence prospective, which is entirely in accordance with common sense. I hope that my noble and learned friend the Attorney-General will conclude that what is proposed here is sensible and right.
§ Lord Mayhew of Twysden
My Lords, I should like to focus a little more closely on the practical consequences of leaving in subsection (6). I support the amendment.
Two principles are engaged, in addition to the broad principle on which the noble and learned Lord, Lord Lloyd of Berwick, has based his amendment. The first principle is that public faith, once pledged, should not be broken. The second is that legitimate expectations that have been occasioned by government action or the action of Parliament should not be frustrated. Those are two important principles which I have always understood that successive governments have sought to apply. The second is an application of the first, and is one of the fundamental criteria for judicial review.
Lest it be thought that no practical circumstances are engaged here and that it is all a matter of constitutional or jurisprudential nicety, I suggest the following case. If I commit an offence, I am entitled to suppose that, once acquitted, that is going to be that. Having got the little problem of the prosecution out of the way, I am perfectly entitled to suppose that that will be it and that I can make my arrangements for housing, employment and my finances accordingly. Now it is proposed that a second bite of the cherry shall, in some circumstances, be allowed the prosecution. Those expectations, on the basis of which I have changed and perhaps worsened my position, will be frustrated. That is the practical consequence of what is achieved by the subsection. To avoid it is the very proper purpose of the amendment, which I support.
§ Baroness Kennedy of The Shaws
My Lords, as your Lordships know, I take a position against any interference with the rule against double jeopardy. We shall meet that in the fullness of time. However, I want to support the amendment as a position short of that.
Of course, we understand that there should be cold-case reviews now that DNA evidence has developed— and the science of DNA has developed. It should be possible to go back and look at samples taken from scenes of crime and perhaps find a culprit.
It is very different to have cold acquittal reviews. I suspect that once the measure is passed, there will be every temptation for police officers to remember cases 465 in which they were involved and decide to revisit them in the hope that they may secure a different result. In practical terms, it is not a proper use of the prosecution authorities and the investigative powers of the police given that the police fall short in obtaining convictions on the cases currently going through the system. There is only a 25 per cent success rate in securing convictions against all the crime that takes place. So that is not a good use of the resources of our police and prosecuting authorities.
However, there is something much worse than that. We live in a society of which I feel very proud because it protects liberties—or it has done. People who are still alive who have been acquitted of serious crime— properly acquitted; we are not only discussing the guilty but the innocent—will fear the hand on the shoulder, the terror that is created by not allowing people to have a fresh start after an acquittal, the finality that has been part of our system. The feeling that when you leave a court, it is over and you rebuild your life is now stopped in its tracks.
We are creating conditional acquittals, a conditional form of verdict, not the proper verdict with which we have always lived. That is what is so terrible about the provision. The explanation given by my noble and learned friend the Attorney-General was that he had met the mother of a victim of murder whose killer had confessed, having been previously acquitted. He asked, "How could I ever look that mother in the face again?" I, too, know how awful it is when one is confronted with victims who have experienced terrible pain, but we must have peace for all of us.
In our society, we must sometimes make rules that do not deal with the individual pain for people such as Mrs Ming. I know that the amendment will not give peace to her, but it will mean giving peace to the many people who have until now been acquitted. That is why I support the amendment; that is also why I think that the whole business of taking away the rule is so wrong. The principle has been there for good reason, so I support the noble and learned Lord, Lord Lloyd. I hope that he will be persuaded to support other subsequent amendments, which deal with gross interference with a principle that is there because it is part of the glue, cement and security for people that the state cannot again come and put its hand on their shoulder.
There are now rumours afoot that Winston Silcott, released from custody on parole last week, is one person on the list to which the noble and learned Lord, Lord Lloyd, referred. I am concerned that we shall create victimisation of a kind that we should not know in our country.
§ Lord Judd
My Lords, it is always extremely daunting for someone who is not a member of the legal profession to intervene in a debate such as this, but I have been trying to follow the deliberations on the Bill. In many ways, I am sorry that we have been denied the much fuller debate that we were anticipating earlier this afternoon. I wanted to participate in that debate, 466 but I must not stretch the rules of the House by trying to introduce my comments by the back door. The noble Lord the Liberal Chief Whip shakes his head firmly at me.
However, it is in order to make two points, because they could be made about many amendments. The first is that, as the Bill has proceeded, I have become more and more profoundly disturbed. I see the issue addressed by the amendment not only as an issue in itself but as symptomatic of what is at fault in the Bill as a whole. I am disturbed because it has become clear that the Bill will change the whole culture of our nation.
Fundamental to the life of this nation—I say this as a layman in legal matters—has been the principle that you are innocent unless you are proved guilty. If you are declared not guilty in a case, you are then innocent. The right reverend Prelate the Bishop of Worcester made an important intervention during the Minister's summing up yesterday about a new category of citizenship that was being introduced in a sort of netherland.
I therefore emphasise that, exactly as my noble friend Lady Kennedy of The Shaws said, among many people who thought that the matter had been settled in the court, there will be that fear of the hand on the shoulder. She is absolutely right.
Because I am a layman, I live perhaps more in the real world out there than do others who are totally preoccupied with the niceties of the law. I live in a world that is increasingly dominated by the media. If much of the media were unconvinced by a verdict that had been properly reached in the court, the media would find a way of hounding and pursuing the person whom they believed was guilty for months and years ahead. I believe that this legislation will open still wider the door to that type of persecution by the media.
Those considerations are basic to my position. I turn to the specifics of this amendment, which I applaud and welcome. As an ordinary citizen, I have always seen another principle as fundamental to our way of life—the principle that we do not have retrospective legislation in the United Kingdom. That is simply a fundamental matter of principle and the amendment is right to address it.
I say to my noble friends on the Front Bench that of course I understand the pressures under which the Government are operating. Of course I understand the sophisticated crime with which they are now confronted, the terrorism and all the rest. However, what worries me is that we should not inadvertently give a victory to the terrorists who are trying to destroy the very society we are trying to protect. We should not give a victory to the organised crime that is trying to put our legal system under pressure by actually beginning to erode the society and the values of the society that we feel to be so important. I am deeply grateful that this amendment has been moved and I fully support it.
§ 5.45 p.m.
§ Viscount Colville of Culross
My Lords, I hope that the noble and learned Lord, Lord Goldsmith, can help the House on the question of Article 7 of the European convention. It is not just about retrospective legislation creating offences that did not exist at the time when the action took place. It also deals, under the jurisdiction of the Strasbourg court, with foreseeability and clarity of legislation for everyone to understand. I can very well see that it would be perfectly proper under that provision to introduce this sort of subsection as a prospective matter. Everyone would then know that it would be perfectly possible to reopen the matter and, if new scientific evidence or something like that turned up, they would again be at risk.
What I think is very difficult is that, because of all the rules that we have about autrefois acquit, no one could possibly have anticipated that, whatever evidence turned up, they would be retried for the same offence. Such a provision has now been put in. It is not just the retrospectivity; it is the foreseeability and the clarity of the law, which is all part of Article 7. I do not understand how this can possibly conform with the European convention.
§ Baroness Whitaker
My Lords, I rise with some timidity in a debate which has been almost entirely undertaken by lawyers. That is the reason that I did not take part at Committee stage, although I did listen to all of it and I reflected. Having reflected, I would like to express some confusion about this amendment. To the non-lawyer, justice is first about the attribution of responsibility. That must come chronologically before questions of fair treatment for the perpetrator. When I sat as a magistrate or as a member of employment tribunals, it was the first question that people wanted answered.
Noble Lords who spoke for the amendment have placed other considerations before the attribution of responsibility such as not to hound someone more than once for the same crime and not to do so retrospectively.
Again, with great timidity I offer a layman's view of retrospectivity. It is right that a perpetrator should not be convicted if what he did was not considered a crime at the time he did it. But the offences in this connection are so serious that they have not only been held to be crimes for centuries; I think they would in most societies be marked as wrong by any reasonable person.
I also understand that to pursue an alleged perpetrator with fresh evidence once the closure of a judicial decision has been reached could be disproportionate; and worse, it could be abused by a vindictive or incompetent state. But for various crimes of violence, constrained fresh evidence would help in the attribution of responsibility.
Of course, guilty people have rights. That comes in sentencing, in the nature of the sanction applied, in treatment during the course of any sanction and after it is over. But to allow the interests of the perpetrator 468 to go so far as to prevent the attribution of responsibility in the first place seems to me to be ultimately unjust. So I have great difficulty with the amendment.
§ Lord Corbett of Castle Vale
My Lords, I had the honour of chairing the Home Affairs Select Committee in another place, which was invited to consider the proposition that the law on double jeopardy should in certain narrow circumstances be changed. I have to say to your Lordships that every one of the criticisms and concerns that have been voiced on this issue in this Chamber this afternoon were expressed in the course of that inquiry.
I started from the point of view that I needed to be persuaded that the change was justified. That is where the committee ended up, I have to say. We started on the basis of two principles. The first is that it is the duty of our criminal justice system as best and fairly as it can to see that the guilty are convicted and that the innocent are acquitted. I believe that the question in front of your Lordships' House this afternoon in considering the amendment moved by the noble and learned Lord is whether it gives justice to the family or relatives of a victim where, following an acquittal, new and compelling evidence comes to light which, despite the rigour of the investigations, was not available at the first trial, and where the person who is acquitted of murder is able to go away scot-free even if—and I can think of two or three such cases—they have subsequently boasted of that. I think the answer to that is that people out there, victims and the relatives of victims, would think your Lordships' House had gone mad if it said that after a certain date that could happen but before that date it could not.
I certainly understand the fear of the hand on the shoulder referred to by my noble friend Lady Kennedy of The Shaws. However, I want those wrongly acquitted to feel the hand of justice on their shoulder where new and compelling evidence persuades the court to set aside the original acquittal, because that is what must happen, where the police have to demonstrate that they were not idle or negligent in the collation and the presentation of evidence at the first trial, and where it is in the public interest to order a second trial. Those are big hurdles. It is not simply a case of plod saying with respect to this or that person who was acquitted, "Let us have another go at this guy; we want him behind bars". It does not happen that way. Those are very stringent and important tests.
As I say, I believe that the measure would constitute a gross injustice. I defy anyone to explain the concept of an arbitrary date on a calendar to the relative of a victim and to explain that despite new and compelling evidence having been accepted by the courts to set aside the acquittal, someone with or without a wig may say, "Sorry about that, but the calendar is showing the wrong date". It simply does not make sense and I hope that your Lordships will accept that argument.
§ Lord Borrie
My Lords, I follow my noble friend Lord Corbett in two senses of the word. I am following him in that I am speaking after him and I also follow 469 him in the trend of the argument. I was somewhat surprised that my noble friend Lord Clinton-Davis thought that the arguments of the noble and learned Lord, Lord Lloyd of Berwick, were unanswerable. I found them persuasive—it would be surprising if I did not find any arguments coming from the noble and learned Lord persuasive—but they did not give all the story, as it were. Perhaps one reason we have not had all the story from the noble and learned Lord, or those who follow his argument, is that we are dealing with this matter right at the beginning of this group of clauses. My noble friend Lord Corbett has done a service by emphasising that, with no retrospectivity at all, the set of clauses will include a requirement to demonstrate new and compelling evidence to justify any retrial and—I am not sure that he emphasised this—establish that it is in the interests of justice. I forget which clause mentions the interests of justice but that would cover, among other matters, the concern of the amendment, which is to deal with retrospectivity.
I am not one of those who thinks that, in every case that could come within the clauses, simply because the trial was in 2001 rather than 2004 there would be no hand on the shoulder. Therefore, I follow a great deal of the argument put by my noble friend Lord Corbett. Given what has to be established under the clauses to get a retrial, let alone the right of appeal if a retrial is granted, there are many safeguards. As subsection (6), with which the amendment deals, will apply to very few cases, we should not accept the amendment.
§ The Lord Bishop of Worcester
My Lords, I have been trying to work out whether it would be better to say nothing until the next debate. However, so many speeches have dwelled on the wider question of the clause that it is difficult to avoid the two issues coming together in our minds. The reason for that is that the principle of retrospection—looking back—is built into the whole subsection anyway. Much said by the noble and learned Lord, Lord Lloyd of Berwick, applies to that.
I want to speak directly on the last two contributions. I hope that the House will forgive me if, as a layperson in matters legal, I speak somewhat personally. In the book of Anglican martyrs in Canterbury Cathedral is the name of Jonathan Daniels, a friend and fellow student of mine at theological college who was murdered in Alabama in the course of civil rights work in 1965. His death was followed by a trial that, by any standards, was a travesty. It actually tried him rather than his murderer. The person was, first, indicted only for manslaughter and, secondly, acquitted even of that.
Noble Lords will know how intense are the friendships and feelings that arise in a student body. Our student body assembled the following autumn to face the reality of both the death of a friend and the acquittal—the final acquittal—of his murderer. I was the editor of the school journal. I still have the article that I wrote, and I still have deep inside me the sense that a deep injustice was done, and I would like that 470 man got. That makes the argument for such a clause extraordinarily persuasive to anyone who has been through that kind of experience. Obviously there are people who have been through it with far closer friends or relatives—spouses, parents or children. Then I find myself thinking about what would be involved— giving a life sentence to acquitted persons.
The last Archbishop of Canterbury but three, Lord Coggan, invited the nation to consider the kind of society in which we wanted to live. The most reverend Primate the Archbishop of Canterbury has raised that question for us all in his extraordinarily persuasive lectures and speeches. I need to ask myself the question: what kind of society will this create?
The previous two noble Lords who spoke raised the issue of victims who see no one brought to justice. That is very searing as an experience. But we should be clear: hundreds and thousands of such people in our society have to come to terms with the fact that justice has not been done. That is not because of an improper acquittal but because the person has never been brought to justice in the first place, has never been brought before the courts in the first place or was never discovered in the first place. The experience of living with an unresolved crime is terrible but many, many people undergo it. This subsection will make a difference only to a small minority of such cases.
I appreciate that the real issue is how we help such people to move on. It is also how we try to ensure that people are brought before the courts when they have committed crimes. That is a matter of policing and resourcing and so on, and of being tough on crime—if I may coin a phrase—and tough on the causes of crime. All those things arise in this issue. However, if we pass this measure, we shall give people the illusion that we are successfully doing something about unresolved crime when we shall actually be condemning to a life of fear people who have been acquitted.
I have one more thing to say. I understand—I was told this; I do not know whether it is true — that certain noble Lords are minded to support the clause and to resist the removal of the subsection from the Bill on the grounds that the possibility of retrial will exist only for the most serious crimes. I find that totally illogical. It seems to me to amount to saying that if I commit a burglary or am a pickpocket and am acquitted, I am in the clear, but that if I commit a really serious crime, I shall never be in the clear. I am not talking only about me but about every single acquitted person.
I know that the hurdles that have to be jumped are very high, but that will not be the perception of people who are likely to come within the frame of this measure. A person accused of murder or rape will live in fear. This provision is an incitement to gangs and enemies and to police and governments under pressure to bring forward cases that, in my opinion, should not be brought forward. I find this subsection, and in particular the retrospection involved in it, the most serious departure from the kind of society in which I wish to live.
§ 6 p.m.
§ Lord Donaldson of Lymington
My Lords, I find myself in great difficulty over this matter. From the moment I entered the law, I was brought up to believe that, once a man was acquitted, that was it. I have listened to the speeches supporting the amendment of my noble and learned friend Lord Lloyd. I am talking only about retrospectivity; the other matter is for later discussion and different considerations will apply.
I have heard it said by one noble Lord—I forget who—that, once a man is acquitted, he is in the position of being found innocent. That underlies many of the comments in the media and it is wholly wrong. There is no room in the law for a verdict of innocence. In very rare cases, the evidence may prove beyond peradventure that a person did not commit a crime but, even then, the verdict is only—
§ Lord Judd
My Lords, I am grateful to the noble and learned Lord for giving way because I was the one who made the point. I simply ask him to comment on this: while the law may not declare a person innocent, according to the whole basis of our society and the values which underpin it, if a person has been found not guilty, he is innocent.
§ Lord Donaldson of Lymington
My Lords, that is a popular misconception which I have tried on various occasions to correct—bat without the slightest success.
Supporters of the amendment have said that we should take account of the views of victims. We certainly should treat victims with understanding, but I cannot believe that it is right that laws should be framed on the basis of giving victims satisfaction. That is not least because every victim, if almost anybody is charged, assumes with an utter conviction that that person is guilty. If he is acquitted the victim thinks that there has been a miscarriage of justice. But the real touchstone is whether there has been a miscarriage of justice. I have been involved in a couple of cases which have been described as classic miscarriages of justice. I say nothing about them—although I am tempted.
However, I have said publicly that there are far more miscarriages of justice on the basis of wrongful acquittals than there are miscarriages of justice by wrongful convictions. I take account of the fact that the law is loaded to produce acquittals if there is any doubt. But we are considering cases of wrongful acquittals which can be demonstrated to be such. Against the principle of autrefois acquit we have a series of clauses, two of which matter. One is that one has to obtain the consent of the Director of Public Prosecutions before one can start on this road. The second is that one has to obtain the determination of the Court of Appeal in support of the DPP's view. Thirdly—what really matters—is Clause 64, which requires both the DPP and the Court of Appeal to look at the interests of justice.
That clause is worth looking at because subsection (2) says that the matter has to be detennined in the light of:"whether existing circumstances make a fair trial unlikely".472 An earlier intervention referred to the extent to which the media will hound people. We know that they will. I shall not name certain cases, but we all know cases in which the media, if they had the slightest chance, would require and demand a retrial of those people who have been acquitted. We know also that they would point out that out of a group of people, some were acquitted and some were never charged. The media will say that that creates a problem.
The court would be bound to refuse leave if a fair trial was unlikely, owing particularly to the activities of the media—or for any other reason. Clause 64(2(b) provides:for the purposes of that question and otherwise the length of time since the qualifying offence was allegedly committed".That is crucial. Let us say a person has committed, or is said to have committed, a crime 20 years ago—for instance when he was not a teenager but a youngster. If 20 years later it emerges that he was guilty, it would be wrong that he should be prosecuted again. That is one of the exceptions set out in the clause:whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".That describes cases in which it is said that the police, having investigated a case without due diligence or a sense of urgency, want a second go. They could not do that—unless the Court of Appeal takes leave of its senses, which is not an eventuality that I can personally admit—because the clause stipulates that leave could not be given in those circumstances.
A further exception is to be found in subsection (2)(d) of the clause; namely,whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition"—in other words, having found compelling DNA evidence, they cannot just sit on it and wait until it is convenient to them to apply for a further prosecution.
I would hope and expect that if the amendment does not succeed—I am sure that it will—the number of retrospective cases in which this will be brought forward will be extremely few. If I were in the position of the noble and learned Lord the Attorney-General I would start by thinking of the cases which exist but which one could probably count on the fingers of one hand, of someone who, having committed a serious offence, then proceeds to proclaim the fact that he has. That seems to me to be an affront to the whole system of justice. Certainly, there should be the possibility of recharging him.
As regards retrospectivity, I would then move on, but with very slow steps, to the DNA cases. The DNA cases pose a difficult problem. Unlike most other later discovered evidence, the DNA cases can be conclusive or virtually conclusive. Certainly I would want to look at that, but with care. Beyond that I do not think I can go and I do not believe that the noble and learned Lord the Attorney-General would go any further, although he obviously cannot be expected to give an undertaking to that effect. If he did, I do not think that the Court of 473 Appeal would let him get very far. For those reasons, I have real doubts about the validity of the amendment, despite its provenance.
Lord Cooke of Thomdon
My Lords, I rise to make a simple point. I have listened, I hope carefully, to the debate having come to it without any firm view one way or the other. I am in sympathy with the general concept that for the future at least an acquittal should not always be sacrosanct; and that, in particular, if new and compelling evidence—which could not have been adduced at the first trial—comes to light, there should be the possibility of having a second trial if, in all the circumstances, the Court of Appeal thinks it just.
However, the problem, as I see it, is the retrospectivity provision. Like the noble and learned Lord, Lord Donaldson of Lymington, I appreciate that there may be very few cases indeed in which the question of retrospectivity will arise although no doubt the noble and learned Lord, Lord Lloyd of Berwick, may well be correct in saying that there will be in existence a list of potential cases of that kind.
Having listened to the arguments on both sides, superbly and eloquently put, I am left in considerable doubt about whether retrospectivity is justified. There is a basic aversion of the law to retrospective provisions, especially in the criminal field. Therefore, if one is left in any measure of doubt, the correct course, the principal course, should be to reject retrospectivity. It is for that simple reason that I support the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick.
§ 6.15 p.m.
§ Lord Thomas of Gresford
My Lords, we on these Benches support the amendment of the noble and learned Lord, Lord Lloyd, concerning retrospectivity. After all, what are we seeking? We on these Benches have conceded that, in very limited and narrow circumstances, there should be the opportunity to re-open an acquittal at some future time. But, in reaching that conclusion, one is trying to find a balance. Where is the public interest of balance between the interests of the victim and his or her family, the interest of the acquitted person, the use of judicial resources and the use of police investigative resources? We cannot re-open everything.
The noble Lords, Lord Corbett and Lord Borrie, asked how one can justify the retrospective, or the prevention of retrospective, consideration. My answer is that not every acquitted person is actually guilty. That seems to be something that is sometimes forgotten. There are a great many acquitted people who are innocent. The day after this Bill is passed, the day after that dividing line in time, those people will wake up to understand that from now on they have to look over their shoulder. There is a possibility that the acquittal on which they have relied and on which they have rebuilt their family and their world no longer counts for what it did.
So, it is one thing to say to a person who is to be acquitted in 2004, "Well, you must realise that there is a possibility that at some future date your acquittal 474 will be re-opened", and a totally different matter to say to people who have rebuilt their lives, "I am sorry, as from 1st January 2004, your life may be shattered by an investigation and by a possible prosecution, even though you are actually innocent".
I want to make another point. The noble Baroness, Lady Kennedy, talked about finality. I think that was in the sense of finality for the defendant, that he knows where he is. But none of us who practise in the criminal courts can avoid the scene in the public gallery of the family of the accused—very concerned and worried— and also the family of the victim, or the victim himself or herself. They are under considerable strain. It may take a year or 18 months for a trial to come to a hearing and for there to be a conclusion.
At the end of that time there is a decision and people come to terms with that decision. The families of victims and the victims themselves have to come to terms with that decision and to rebuild their lives. What I fear from these provisions, if they are retrospective, is not so much the media hounding a particular person who has been acquitted, but the victim and the families of the victims continuing to press for more investigation, more evidence to be gathered and for the person to be brought once more before a jury. The fact that they will not receive finality in their lives is also a matter which has to be put into the equation when considering public interest.
So, whereas on the one hand it may seem wrong that we should ignore those well-publicised cases where people have boasted of the fact that they were guilty when they were acquitted, nevertheless, taking the whole picture in terms of where the public interest truly lies, we must, in our submission, accept this amendment.
§ Baroness Anelay of St Johns
My Lords, I recall that we debated this matter at some considerable length, and with the same amount of deeply and sincerely held passion, more than three months ago at a similar time of day on another Thursday. I am also aware of the rules that, in particular, as a Front-Bencher, I must adhere to. The Companion states:Arguments fully deployed in Committee of the whole House should not be repeated at length on report".If I do, my own Chief Whip will have my guts for garters, and I do not want that. I will not repeat all the reasons why I cannot support the amendment, which I gave when I spoke at length on 17th July, as reported in Hansard at cols. 1069–70.
In summary, we on these Benches, in another place and in this House, accept that there should be some relaxation of the double jeopardy rules and that that relaxation should apply to those already acquitted. We accept the argument put forward by the noble Baroness, Lady Whitaker, that it is not retrospection in the sense commonly understood by the public.
I also endorse the remarks of the noble Lord, Lord Corbett of Castle Vale, who encapsulated the arguments that I put forward in July on the importance of ensuring that, if anybody is to have that tap on the shoulder, we must provide every safeguard to ensure that 475 it will be the right person—the acquitted person who perhaps should not have been acquitted. Since July, I have looked carefully at the safeguards that should be incorporated within this part.
The same amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, was tabled in Committee in another place by my honourable friend Dominic Grieve. That was a purely probing measure, as he made clear. It was as a result of listening to the arguments adduced at that time, and to those adduced in this House in July, that we looked again carefully at our position and decided that we would not resile from it and that we would continue to oppose the amendment.
It grieves me much that, on this occasion, I do not agree with my much respected colleagues and, I hope, dear friends, the noble Lord, Lord Renton, and the noble and learned Lord, Lord Mayhew of Twysden. If there is to be a Division, my noble friends on the Front Bench and I will support the Government in the Lobbies.
§ Lord Goldsmith
My Lords, the noble Baroness, Lady Anelay, has rightly reminded us that on Report we should not repeat arguments fully deployed in Committee. One was privileged to participate in the debate in Committee, which involved many noble Lords from the law—including former judges—those from the Church and others with experience.
The noble Baroness, Lady Anelay, is right to say that there are strong and sincerely held views on the principle of double jeopardy. The Government have made clear their determination to change the rule relating to double jeopardy and have the support of the Law Commission, Lord Justice Auld and the Home Affairs Select Committee, to which the noble Lord, Lord Corbett of Castle Vale, has referred. All of them agreed with the principle of change.
I remind myself that the amendment relates not to the principle but to this: if there is to be such a change, should it be something that can relate back or that can only relate forward? Despite the eloquence of those such as the noble and learned Lord, Lord Lloyd of Berwick, who oppose what is described as retrospectivity, the Government do not accept the amendment and the removal of the clause. It would simply provide an arbitrary cut-off point before which cases could not be brought to justice.
There were powerful speeches today. I single out, in particular, the contributions of my noble friends Lady Whitaker and Lord Corbett, who talked about justice, as did the noble and learned Lord, Lord Donaldson.
In the Government's view, and in my view, disallowing a retrial in serious cases when there is compelling new evidence, such as DNA or even a confession, which indicates that an acquitted person is in fact guilty of a serious crime committed some years ago, is illogical and unjust. It would be an affront to justice.
476 As my noble friend Lord Corbett said, retrospective application of these changes was supported by the Home Affairs Committee and the Law Commission. That gives me the opportunity to deal with an important point raised by the noble Viscount, Lord Colville, about Article 7 of the European Convention on Human Rights. Unhesitatingly, I say that there will be no contravention of Article 7 of the convention if this subsection remains.
That was the view of the Law Commission. I have here the report produced by the Law Commission, which, as noble Lords will know, was chaired by a High Court judge at that time, the honourable Mr Justice Carnwath, with distinguished academics. They looked carefully at the issue. Having said that in policy terms they thought that the arguments in favour of giving the exception retrospective effect were powerful, they went on specifically to deal with Article 7.
I shall touch on that issue for the benefit of those noble Lords who raised it, including my noble friend Lord Clinton-Davies. Article 7 prohibits the creation of retrospective offences by legislation—the principal purpose—or to change the penalty. But it does not prevent retrospective changes in the rules of criminal procedure so as to remove a bar or obstacle to a prosecution. That is clear from European jurisprudence. It is set out clearly in the report of the Law Commission, which was very clearly of the view that it did not contravene Article 7.
There is no question of creating a new offence. We are talking about prosecuting someone for something which was an offence at the time, such as murder. We are not suggesting that they should be subject to a different penalty from the penalty to which they would have been subject at the time. It is the question of a procedural bar which exists at the moment. Removing that is not a breach.
§ Lord Thomas of Gresford
My Lords, perhaps the noble and learned Lord will forgive me for pointing out that prosecutions will be made under new rules of evidence and in a different context altogether.
§ Lord Goldsmith
My Lords, that still does not contravene, in any way, Article 7 of the European Convention on Human Rights. It is not concerned with changes in procedural rules, but with prosecuting someone principally for something which simply was not an offence at the time that it was committed. I am sorry that the noble and learned Lord thought that I did not give him a satisfactory answer on the previous occasion. I believe that I did address this issue as a matter of principle. It is not contrary to the European Convention on Human Rights. As a matter of justice, while recognising the strength of the arguments the other way, the Government take the view that where compelling new evidence comes forward, it is just that people who have committed crimes should be subject to the possibility of a retrial.
477 There are important safeguards. The noble and learned Lord, Lord Mayhew of Twysden—
§ Earl Russell
My Lords, the noble and learned Lord referred just now to people who have committed crimes. Is that compatible with the presumption of innocence?
§ Lord Goldsmith
My Lords, I thought it was clear. If someone had committed a crime—I am not referring to any particular individual—and the Court of Appeal, the Director of Public Prosecutions and the police believe that there is new and compelling evidence, and the Court of Appeal and the DPP regard a retrial as in the interests of justice, a retrial should take place. I entirely agree that on that occasion, it will be for the jury to determine whether the person was guilty.
On the previous occasion, my noble friend Lord Brennan also powerfully pointed out that the interests of justice, looked at from the point of victims, required and justified the provision being retrospective. I agree with him that if someone who had been in prison for 15 or 20 years could be released because DNA evidence showed him to be innocent, then if compelling new evidence comes forward that suggests that a person who was acquitted of murder 15 or 20 years ago may be guilty, the community would say that it is unjust to allow such a person to avoid a retrial and possible conviction under the provisions.
§ The Lord Bishop of Worcester
My Lords, I apologise if my question arises from my ignorance of procedures and practice, but presumably, because the acquittal will have been a public event, the jury in any new trial will know that the Court of Appeal has judged that there is new and compelling evidence that could not have been available at the time. If I am wrong, please tell me. If the jury knows that, how can they approach the evidence in a dispassionate way? They will know that three learned judges of appeal have made their judgment about the evidence.
§ 6.30 p.m.
§ Lord Goldsmith
My Lords, the right reverend Prelate raises a point that, with respect to him, goes beyond this amendment to the question of the principle of double jeopardy, which we will come to in later groups. There are publication provisions and reporting restrictions that will protect, and the Court of Appeal must always be satisfied that a retrial would be in the interests of justice. That does not affect this provision.
§ Lord Neill of Bladen
My Lords, I thank the noble and learned Lord for giving way. I know that this is trespassing on a further part of the Bill, but is not his response completely unreal? We can imagine that, in some of the cases that come up for retrial, there will have been a public clamour, television programmes, newspaper articles and relatives groups whipping up interest. The person who is accused will be perfectly well known—his face will have appeared regularly. 478 The jury in charge of trying him for a second time will know perfectly well that the Court of Appeal must have cleared the case. Juries are quite smart these days.
§ Lord Goldsmith
My Lords, I remind the noble Lord that this is Report. He raises a point that does not, with all respect to him, go to the question of whether this amendment should be agreed. The premise is whether the provision should be retrospective.
§ Lord Judd
My Lords, I am very grateful to my noble and learned friend for giving way. He has addressed this issue, as have others of my noble friends and, of course, I understand the feeling, concern and genuine commitment in this direction. However, while we consider the position of people who have—and know that they have—committed a crime, who have been acquitted and then subsequently find when they wake up after this Bill has been passed that they have not got away with it, what about the many people who have been acquitted in the past? Very often, the reason that they were in court was because they were vulnerable, inadequate people. What is their position when they wake up the day after this legislation has been introduced and find that something that they thought, with justice and truth, that they had put behind them is now uncertain? We must weigh that in our considerations as well.
§ Lord Goldsmith
My Lords, on the last occasion, the noble and learned Lord, Lord Lloyd of Berwick, gave the example of a man who was acquitted of a murder of which he was in fact guilty. That was the noble Lord's premise. The man later admitted the offence to his wife. I gave the example of a man who was acquitted of a murder and subsequently bragged that he was guilty. In both those cases a murder was committed and the murderer walked free from the original trial. If there is new and compelling evidence, I do not see the injustice, subject to the safeguards that we have discussed, of that person being brought to book.
§ Lord Lloyd of Berwick
My Lords, I am grateful for the support that this amendment has received from lawyers on all sides of the House and, above all, for the support that it has also received from laymen. There is no principle question of law involved here. This is simply a question of justice. To the right reverend Prelate the Bishop of worcester I say that the problem of retrospection will not apply as he thought it might in the case of those who are acquitted in the future, because they will know that acquittal does not mean that they cannot be tried again. Therefore, there is no unfairness or injustice. The injustice applies to those who were acquitted in the past and who have lived in the belief that they could never be tried again. That is what sticks in my gullet, if I may say so, and that is why I wish to divide the House on this issue.
§ 6.35 p.m.
§ On Question, Whether the said amendment (No. 143) shall be agreed to?
§ *Their Lordships divided: Contents, 45; Not-Contents, 68.
|Division No. 3|
|Allenby of Megiddo, V.||Monson,L.|
|Avebury, L.||Neill of Bladen, L.|
|Clement-Jones, L.||Newby, L.|
|Clinton-Davis, L.||Northover, B.|
|Colville of Culross, V.||Oakeshott of Seagrove Bay, L.|
|Cooke of Thorndon. L.||Onslow, E.|
|Dholakia, L.||Pearson of Rannoch, L.|
|Erroll, E.||Phillips of Sudbury, L.|
|Falkland, V.||Renton, L.|
|Hamwee, B.||Rodgers of Quarry Bank, L.|
|Harris of Richmond, B. [Teller]||Roper, L.|
|Howe of Idlicote, B.||Russell, E.|
|Judd, L.||Steel of Aikwood, L.|
|Kennedy of The Shaws, B.||Stern, B.|
|Lane, L.||Taverne L|
|Linklater of Butterstone, B.||Thomas of Gresford, L.|
|Livsey of Talgarth, L.||Thomas of Walliswood, B.|
|Lloyd of Berwick, L.[Teller]||Turner of Camden, B.|
|Maddock, B.||Watson of Richmond, L.|
|Mallalieu, B.||Wedderburn of Charlton, L.|
|Mayhew of Twysden, L.||Williamson of Horton, L.|
|Winston, L. Miller of Chilthorne Domer, B.||Worcester, Bp.|
|Andrews, B.||Gordon of Strathblane, L.|
|Anelay of St Johns, B.||Gould of Potternewton, B.|
|Archer of Sandwell, L.||Grocott, L.[Teller]|
|Bach, L.||Harris of Haringey, L.|
|Bassam of Brighton. L.||Harrison, L.|
|Berkeley, L.||Hayman, B.|
|Bernstein of Craigwcil, L.||Hilton of Eggardon, B.|
|Bhatia,L.||Hollis of Heigham, B.|
|Blackstone, B.||Hughes of Woodside, L.|
|Borrie, L.||Lea of Crondall, L.|
|Brett, L.||Lipsey, L.|
|Bridgeman, V.||Macdonald of Tradeston, L.|
|Brooke of Alverthorpe, L.||McIntosh of Haringey, L.|
|Brookman, L.||MacKenzie of Culkein, L.|
|Campbell-Savours, L.||Mackenzie of Framwellgate, L.|
|Carter, L.||Massey of Darwen, B.|
|Christopher, L.||Mitchell, L.|
|Clarke of Hampstead, L.||Montrose, D.|
|Cope of Berkeley, L.||Pitkeathley, B.|
|Corbett of Castle Vale, L.||Ramsay of Cartvale, B.|
|Crawley, B.||Rea, L.|
|Davies of Coity, L.||Rendell of Babergh, B.|
|Davies of Oldham, L.[Teller]||Roll of Ipsden, L.|
|Desai, L.||Rooker, L.|
|Donaldson of Lymington, L.||Scotland of Asthal, B.|
|Dormand of Easington, L.||Sewel, L.|
|Dubs, L.||Simon, V.|
|Evans of Temple Guiting, L.||Symons of Vernham Dean, B.|
|Farrington of Ribbleton, B.||Temple-Morris, L.|
|Filkin, L.||Turnberg, L.|
|Gale, B.||Warner, L.|
|Gavron, L.||Whitaker, B.|
|Gibson of Market Rasen. B.||Wilkins, B.|
|Goldsmith, L.||Woolmer of Leeds, L.|
§ [*The Tellers for the Not-Contents reported 68 votes. The Clerks recorded 67 names.]
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.45 p.m.
§ Baroness Kennedy of The Shawsmoved Amendment No. 143A:
Leave out Clause 60.
§ The noble Baroness said: My Lords, this set of amendments stands in my name and that of the noble Lord, Lord Neill of Bladen. I am happy to be in such esteemed company. The noble Lord—who will of course in turn speak—and I believe that this is a matter of principle. Removing the rule against double jeopardy is of such consequence that we feel strongly that it should be marked and not just go by on the nod.
§ Your Lordships have already heard a full debate that has roamed beyond the issue of retrospection. I do not intend to rehearse those arguments, but I am concerned that the House should be aware that there are difficulties surrounding what will constitute new evidence. Reading the Bill, it seems clear that "new and compelling" evidence will basically be any old evidence—evidence that was available but which, because of poor prosecution or investigation, the police failed to procure until the second time round. We submit that that is the wrong way to conduct a justice system.
§ I am concerned that that will create insecurity—as has already been said so beautifully by the right reverend Prelate, and that we are creating a life sentence for acquitted people. That is what is so wrong in principle. We should ask what kind of society we intend to create. I submit that the provision will create a society with real uncertainty for people. We are undoing the glue that makes this country the place in which we all choose to live. I regret that our liberties are being so readily ceded by this Government. That is a source of sadness and profound regret to me. I beg to move.
§ Lord Neill of Bladen: My Lords, I support this group of amendments. We are told that it is procedurally necessary to move a raft of amendments to achieve one simple aim: to scrap Part 9. Apparently it is impossible simply to have a part omitted; hence this long string of amendments, but they are all directed to sweeping away every provision in the Bill that would alter the double jeopardy rule. All the arguments have been rehearsed, so I shall be brief.
§ Double jeopardy is an ancient principle. It is one of the big principles of English criminal law, as is the presumption of innocence. It is as deeply embedded as that. It is founded on the principle that guilty people will be acquitted, but that it is better to have such a principle than to run the risk that people who have been acquitted can be tried again in any circumstances.
§ We are here faced with a partial erosion of that great and ancient principle. It is partial because, as I read it—I shall be put right if I am wrong—it is directed to crimes of violence. No crimes of fraud—however grave; however grievous the consequences; however many people are ruined and made bankrupt—nor 481 crimes of blackmail leading people to suicide, matter. The provision applies only to crimes of violence. By saying that, you see at once that it is a populist measure. It is being introduced because some murderer has been acquitted and has thereafter boasted of what he has done. It is limited, in the hope of making it more palatable, but it is unprincipled, being partial.
§ It is the destruction of an ancient principle. Finality is a great, desirable end. We must recognise that for these specified Schedule 4 crimes, every acquittal from now on is provisional. In fact, as a result of the last vote on the amendment of my noble and learned friend, Lord Lloyd, not only will acquittals be provisional in the future, but every past acquittal is provisional and can be reopened. That will come as quite a shock to people.
§ When the prosecution decides that it will institute this procedure, it applies to the court for an order, part one of which is that the original acquittal be quashed. Then a notice of that application is served on the happily acquitted man, accompanied by a piece of paper charging him with the original offence. Imagine that if you have been acquitted in a long and horrendous murder trial—let us assume, for once, that the accused is innocent. Years later, a charge is delivered and served on you saying that you are now being prosecuted for the murder of which you were formerly acquitted.
§ If we take this step we are moving out of line with other great common law jurisdictions, including Australia and the United States of America. So far as the parties to the European Convention on Human Rights are concerned, there is a protocol which permits a derogation from the general principle of no derogation from the double jeopardy rule. You can sign up to a protocol saying that it is the intention of your state to make a derogation. Let me outline my understanding—again, I will be corrected. I see the Attorney-General shaking his head. We have had many encounters in the past, in courts and elsewhere, and when he shakes his head it is something to tremble at. My understanding is that only in the case of Finland has such a signature to a protocol been made.
§ I drew attention at Second Reading to the point that the definition of new evidence is so extraordinary that it covers old evidence—evidence that could have been in existence long before. To make such a measure palatable it has to be made attractive by saying: let us suppose new DNA evidence comes to light. But the clause is not drafted in that way, as we will hear in another amendment dealing with this point.
§ New evidence is not confined to new scientific evidence. It will cover the case of a prosecution witness who was available to be called on the first trial— witness number three, say, who was an eye witness to the offence—but who was still in a state of trauma. The prosecution decides not to call that witness, because something might go wrong on cross-examination. Under this definition of new evidence, that witness could be called; there would be a retrial, the only difference being that the third witness is now called in 482 addition to the other two. There could be a replay of the old trial, plus an extra witness. This is a very undesirable development in the law.
§ I drew attention last time to the likely consequences. When speaking a little while ago, I referred to campaigns against a man who has been acquitted. I have some little experience; as I mentioned then, I was, once upon a time, chairman of the old Press Council. We dealt with the moors murderers and other insalubrious cases. It is easy to foresee that media campaigns will be whipped up against a person who has allegedly committed some vile rape, murder or serial murders. We have seen examples of that. One has only to watch television for a week to see some investigation of either an alleged crime—or a past acquittal, as it will now be. A frightening and alarming future faces us.
§ I do not want to trespass on another point, but I made it earlier. There are provisions for the Court of Appeal to say that, when an application has been made for a retrial and has succeeded, it is not to be reported in any form of publication, even by word of mouth, to the public at large or to a section of public. The provisions say that it can be blanketed out—but in the real world, if there has been a campaign, everybody will know perfectly well that the campaign has succeeded and, hooray, there is going to be a second trial. That will lead to highly undesirable consequences, given the media world in which we live, which reinforces why the old principle was so good. There would be occasions when an acquittal was not justified, but that was preferable to the system now being recommended by the Government.
§ 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 483 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 systsm. 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.
484 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.
485 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".486 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.
§ 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 time—about 50 years. Part of that time, I was involved as an advocate—a rather successful one—mostly 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 487 occasion when I have to vote against my Government—the Government whom I generally support—I shall vote against them on this occasion whether we lose or win the vote.
§ 7.15 p.m.
§ 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 England— including Wales for this purpose—and the other is where he is acquitted elsewhere. Where he is acquitted elsewhere, there is no attempt to set the acquittal aside—it 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 488 by the measure which the Government are proposing— at least regarding the future. We are not concerned now with the element of retrospectivity. It is consistent—
§ 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 principle—the principle of autrefois acquit, as I was always brought up to say—because 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 perfection—that 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 489 necessary twice? I cannot believe that it can be right, in the language of the right reverend Prelate, to impose a life sentence upon someone who, indeed, may have been innocent and rightly acquitted. That is the high watermark of this argument. I believe that it is a point that has not been reached by the arguments, with which I deeply sympathise. Anyone who has been a Member of Parliament for many years, as a number of us have, knows the depth of feeling on the other side of this argument. However, it is the duty of this House, where we do not have to deal with the pressures of constituencies, to look ahead right down the line to the likely and foreseeable consequence of what we may achieve with the Bill as it stands.
I believe that right-thinking people will deeply regret the day that this constitutional principle is abandoned, if that is, indeed, what happens.
§ Lord Goldsmith
My Lords, we have debated at length on this occasion, as I believe we did in Committee, important points of principle. Distinguished lawyers are divided on this issue, as we have seen today. However, others have demonstrated that lawyers have no monopoly on wisdom, no monopoly on what is the sense of justice of the community or on what will give confidence to the community in the justice system, which is for everyone and not just for the lawyers.
For that reason I very much commend to your Lordships what was said by my noble friend Lady Gibson of Market Rasen, which was simple, clear and compelling. It represents in essence why the Government accepted recommendations which were successively made by the Macpherson report into the Stephen Lawrence inquiry, by Lord Justice Auld and by the Law Commission that we should bring in this exception to the double jeopardy rule for very serious offences. The Home Affairs Committee also supported it. A large body of people have very carefully considered this matter, weighed up the arguments on both sides and come down in favour of this exception.
We do not expect these reforms to apply other than in exceptional circumstances. Perhaps I may say to the noble Lord, Lord Neill of Bladen and, indeed, to the noble Earl, Lord Russell, that it will not be the case that every person acquitted will fear the possibility of a further trial. That is simply not the position. However, we believe that the existence of the power will benefit justice. It will strike the right balance— balance it has to be—between finality and the public interest in ensuring that those who have committed the most serious offences can be brought to justice.
Because we have debated the issue, I hope that noble Lords will forgive me if I do not deal with all the points raised. I think that that would be wrong because the arguments have been clearly set out.
We have thought hard about many of the points raised and have therefore introduced safeguards, as noted by the noble and learned Lord, Lord Donaldson. The Director of Public Prosecutions and the Court of Appeal will require to be satisfied that there is compelling new evidence against a person. The Court of Appeal will have to consider a retrial to be in the interests of justice.
490 I say to the noble Earl, Lord Onslow, because it appears on the face of the Bill in Clause 61(5), that a person can be subject to this procedure only once. There is no question of going back a second time. The matter goes further; we have also included provisions to prevent the kind of harassment referred to by one or two noble Lords. So, under Clause 69, police officers will not be able to arrest or question a person who has previously been acquitted, to search him, his premises or a vehicle owned by him or to take his fingerprints or a sample from him in connection with this offence without the consent of the Director of Public Prosecutions.
§ Lord Neill of Bladen
My Lords, I thank the noble and learned Lord for giving way. Will he tell the House what Clause 61(5) means? It states:Not more than one application may be made under subsection (1) or (2) in relation to an acquittal".Surely, you can have only one application for the first acquittal. You can have another application in respect of a second acquittal. That was the point of the noble Earl, Lord Onslow. This could go on progressively.
§ Lord Goldsmith
My Lords, no, that is not the intention, nor can it be the construction of the Bill.
My noble friend Lord Judd raised a point. I am sorry to differ from him as I am from my noble friend Lord Clinton-Davis. We can see no reason why having a tightly drawn exception to the double jeopardy rule would cause the police to be anything other than scrupulous in their investigation, but we have provided a number of important safeguards to prevent the police relying on a second bite of the cherry. The Court of Appeal has to be satisfied that it is in the interests of justice. In Clause 64(2)(c) and (d), the court has explicitly to consider the extent to which the officers or prosecutors have acted with due diligence or expedition. All that has been taken care of.
On reporting—the right reverend Prelate referred to the issue in a previous group of amendments—juries can and do cope when properly directed. I am afraid that at the moment it happens all the time. We have carefully considered the issue of publicity. The Court of Appeal must take that issue into account when deciding whether a fair trial is possible, as the noble and learned Lord, Lord Donaldson, said.
Clause 67 goes further and imposes particular reporting restrictions so that the interests of justice can be safeguarded by the time the matter gets to the Court of Appeal.
§ The Lord Bishop of Worcester
My Lords, I am grateful to the noble and learned Lord the Attorney-General for giving way. The puzzle I have—and it seems to be a paradox of his position—is that the higher the hurdles which this case has to jump, that is to say the more stringent the tests applied by the Court of Appeal, the more likely it seems that members of a jury will feel that this case has been incredibly carefully investigated by enormously learned persons. Therefore, they would need extremely good reasons to dissent from the judgment of the appeal judges.
491 Perhaps the noble and learned Lord will explain the matter if I have it wrong. To me, the issue is not one of publicity; it is not the issue of reporting; it is simply the issue of the fact that this case will have been so carefully assessed by the Court of Appeal, which has judged the evidence to be new, compelling, and not to do with sloppy investigation and all the other aspects the noble and learned Lord has, I am sure, quite correctly and sincerely, outlined. How will members of a jury put that out of their mind and come to the question fresh?
§ Lord Goldsmith
My Lords, it is because of the question of publicity that Clause 67 specifically provides that the Court of Appeal will have the power, by order, to prevent the matter being reported if it believes that that would give rise to a substantial risk of prejudice. If the order is made by the Court of Appeal, the jury will not know that it has been made; nor will it have seen what was debated during the hearing. If the Court of Appeal, having considered the publicity, is satisfied that it is in the interests of justice, trial judges will direct juries that they must have regard only to the evidence presented to them.
§ Lord Wedderburn of Charlton
My Lords, I am grateful to my noble and learned friend for giving way. I appreciate what he has said. The best has been done in the Bill to try to stop publicity, as he calls it. In the real world, what will stop it being like the posting of names of football players all over the web? Will the Court of Appeal be able to stop that? No. Will the jury know? It is the net that matters, not the media.
§ Lord Goldsmith
My Lords, orders will relate to publicity generally. If the noble Lord wishes to return to the question of whether the clause is sufficiently widely drawn, I will be happy to deal with it when we get to that clause. We have debated whether the list of offences is right.
§ Lord Judd
My Lords, I am sorry to interrupt my noble and learned friend again. I ask him to accept my genuine bewilderment that in his argument he lays great emphasis on the measures that can be taken to prevent publicity. Surely the very fact that the case is there, and the jury has been asked to participate in it, demonstrates that the process has been gone through. Jury members will therefore be influenced greatly by the fact that they know the process must have been followed if they are asked to come and hear the case.
§ Lord Goldsmith
My Lords, I am by no means sure that that is right. If a defendant wishes it to be known that he has been acquitted before, that can happen. No doubt it will be a matter to be considered by the trial judge, but as regards procedure, I am not sure whether the jury should be presented with the case on the basis that the defendant has been tried before. I can see circumstances in which a defendant would think that that is helpful.
§ Lord Thomas of Gresford
My Lords, does the noble and learned Lord the Attorney-General accept that in retrials, transcripts of previous evidence are almost invariably used for cross-examination purposes, and the fact that there has been a previous trial is always known?
§ Lord Goldsmith
My Lords, we do not have a procedure such as that being debated at present. The Court of Appeal will have the important task of deciding whether it is in the interests of justice for the court to make the order. It will have to have regard to whether existing circumstances make a fair trial unlikely, the length of time since the alleged offence was committed, whether it is likely that the new evidence would have been adduced but for a failure of people to act with due diligence, and whether, since then, someone has failed to act with due diligence. We can trust the Court of Appeal to make the right judgment, as we can trust the trial judge to make the right judgment about whether a fair trial will be necessary.
We are well past injury time, so I shall conclude. The fact that someone has committed a murder and then brags about it in a pub is not just a matter of offence. With respect to the noble Earl, it is not the same as someone bragging that he has enjoyed the company of many women. If there is a retrial, the question for a jury, the Court of Appeal and the DPP will be whether there is new and compelling evidence, which they will have to look at as a whole.
I return to the point made by my noble friend Lady Gibson. Public confidence in the justice system is diminished if people are able to walk free where there is compelling new evidence that they have committed serious offences. That is not only because it is not right that they should be able to walk free, but also because they may be walking free to offend again.
§ Baroness Kennedy of The Shaws
My Lords, I shall not detain the House for long. I have not been persuaded by the noble and learned Lord the Attorney-General that this change in the law will bring greater justice. I think that we will see the encouragement of poor investigation; we will see the victimisation of people who have been previously acquitted; and we will see the destruction of the peace of mind that should come with an acquittal. We forget that there are effects on many more people than just the one suspected of being guilty. This is a slippery slope; once it has been done in this area, it will be advanced into other areas. That is the inevitable way of things.
Something which has not been considered is that this could lead to perverse results. Juries struggling towards a verdict may say, "Actually, you know, if you're worried about this, why don't we just acquit. If they really can go back after more evidence, maybe that is what they will do". We may end up with juries seeing it as a way out and, consequently, there being more acquittals, which would be wrong.
We must go back to what the noble and learned Lord, Lord Mayhew, said. This clause is about giving more power to the state; in fact, the whole Bill is about giving more power to the state. That is what is so shocking. We seem to be retreating from principles, 493 which are there for good reason. They have been developed through time for reasons which are about justice and about the quality of our lives here in Britain. We are making great mistakes in departing from those principles. It is a matter of constitutional principle, therefore I seek the view of the House.
§ 7.42 p.m.
§ On Question, Whether the said amendment (No. 143A) shall be agreed to?
§ Their Lordships divided: Contents, 22; Not-Contents, 65.
|Division No. 4|
|Allenby of Megiddo,V.||Neill of Bladen,L.|
|Judd,L.||Phillips of Sudbury, L.|
|Kennedy of The Shaws, B.||Renton, L.|
|Livsey of Talgarth,L.||Thomas of Walliswood, B.|
|Lloyd of Berwick, L.||Watson of Richmond, L.|
|Mallalieu, B.||Wedderburn of Charlton, L.|
|Mayhew of Twysden,L.||Williamson of Horton,L.|
|Monson, L.||Worcester, Bp.|
|Andrews, B.||Gibson of Market Rasen, B.|
|Anelay of St Johns, B.||Goldsmith, L.|
|Ashcroft, L.||Gordon of Strathblane, L.|
|Attlee, E.||Gould of Potternewton, B.|
|Bach. L.||Grocott, L. [Teller]|
|Bassam of Brighton, L.||Harris of Haringey, L.|
|Bernstein of Craigweil, L.||Hilton of Eggardon, B.|
|Borrie, L.||Hollis of Heigham, B.|
|Brett, L.||Hughes of Woodside, L.|
|Bridgeman, V.||Lea of Crondall, L.|
|Brooke of Alverthorpe, L.||Macdonald of Tradeston, L.|
|Brookman, L.||McIntosh of Haringey, L.|
|Burnham, L.||MacKenzie of Culkein, L.|
|Byford, B.||Massey of Darwen, B.|
|Campbell-Savours, L.||Montrose, D.|
|Carter L.||Northbrook, L.|
|Chandos, V.||Park of Monmouth, B.|
|Clarke of Hampstead, L.||Pitkeathley, B.|
|Colville of Culross, V.||Plumb, L.|
|Ramsay of Cartvale, B.|
|Cooke of Thorndon, L.||Rendell of Babergh, B.|
|Cope of Berkeley, L.||Rooker, L.|
|Corbett of CastleVale, L.||Rotherwick, L.|
|Crawley, B.||Scotland of Asthal, B.|
|Davies of Coity, L.||Sewel, L.|
|Davies of Oldham, L. [Teller]||Symons of Vernham Dean, B.|
|Desai, L.||Temple-Morris, L.|
|Donaldson of Lymington, L.||Turnberg, L.|
|Dubs, L.||Turner of Camden, B.|
|Evans of Temple Guiting, L.||Warner, L.|
|Farrington of Ribbleton, B.||Whitaker. B.|
|Filkin, L.||Wilkins, B.|
|Gale, B.||Woolmer of Leeds, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.494
§ 7.52 p.m.
§ Lord Bassam of Brighton
My Lords, I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.