Criminal Justice Bill

Public Bill Committee, 16 January 2003.

Standing Committee B

Clause 62 - Cases that may be retried

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 343, in

clause 62, page 38, line 19, leave out 'a qualifying' and insert 'an'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 344, in

clause 62, page 38, line 25, leave out 'qualifying'.

No. 345, in

clause 62, page 38, line 35, leave out 'a qualifying' and insert 'an'.

No. 346, in

clause 62, page 39, line 8, leave out subsection (8).

No. 262, in

clause 62, page 39, line 8, leave out

'an offence listed in Schedule 4'

and insert 'murder or rape'

No. 270, in

clause 62, page 39, line 8, leave out 'listed in Schedule 4' and insert

'which carries a life sentence'.

No. 330, in

clause 62, page 39, line 8, leave out

'an offence listed in Schedule 4'

and insert 'murder or genocide'.

No. 347, in

clause 80, page 49, leave out line 35.

Dominic Grieve (Conservative, Beaconsfield)

We now come to an important part of the Bill. I am, I hope, pragmatic about creating a fair mechanism that provides for retrials in certain circumstances. That should be balanced by the Government's stated desire that retrials should occur only in exceptional circumstances and for serious offences.

To set the scene, the Conservative Opposition believe that the key issue is whether the provisions are too widely drawn and should be restricted. It is a difficult issue, and I look forward to hearing a little more about the Government's reasons for drafting the Bill in the way that they have.

It is quite apparent that the scope of the clause is wider than when the Government first introduced their proposals, and it is certainly wider than I expected when I first considered the issue. Clause 62(1) covers the retrial of a qualifying offence that was tried on indictment. However, the clause also covers people who are acquitted on appeal against a conviction and even those who are acquitted

''on appeal from a decision on such an appeal''.

That would cover a case in which the House of Lords ruled that someone must be acquitted, but in which subsequent evidence came to light. We should probably consider whether that is pushing it too far and whether it is appropriate for such cases to be subject to retrial. I acknowledge, however, that one could at least argue that it would be reasonable to hold a retrial on the basis of new facts. However, we should at least ponder that. To make the position clear, the amendments are all probing amendments, and I hope to get a response from the Minister.

The lead amendment, No. 343, was designed to initiate a discussion about the term ''qualifying''. It is perhaps unnecessary to discuss in detail whether it makes a huge difference to describe an offence as a qualifying offence, given that schedule 4 does just that.

I shall run through the other amendments. Amendment No. 344 would also remove the word ''qualifying''. Amendment No. 346 would leave out subsection (8). That is an essential precursor to the issue of whether the list in schedule 4 is too widely drafted, and the Minister will see that some of the amendments would restrict the scope of qualifying offences to murder or rape or to those punishable by life imprisonment. Again, this is a difficult issue, but I would like the Committee to have an opportunity at least to consider whether the list in schedule 4 goes too far. I think that the clause is the right place, because if there are to be restrictions, schedule 4 would be abandoned altogether and the necessary offences would simply be inserted in the clause itself.

As I told the Minister, when I first heard of the proposal it was put that the most serious cases of murder or rape would be likely to lead to retrials. I suspect that that will happen in practice. I shall be grateful to hear the views of other members of the Committee about whether we are providing a mechanism that might create lots of pressure to reopen cases that would not come into a category that most people would consider to be the most serious. In practice, the justification for the change is the understandable public fear that people who might constitute a serious risk to the public should still be at large, having been acquitted of a serious offence when evidence has come to light that strongly suggests that they should have been convicted.

Humfrey Malins (Conservative, Woking)

My hon. Friend is developing a powerful argument on the issue of the seriousness of the offences. Does he share the concerns of others that the 29 offences specified in schedule 4 include offences—they are all serious—contrary to section 18 of the Offences against the Person Act 1861, regularly tried in the Crown court, as well as the supplying of class A drugs? Does he have any thoughts on why they are in the schedule and whether they are so serious?

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with my hon. Friend. When I saw the schedule for the first time, I was startled. It was not what I had expected, having read the White Paper and the preliminary discussions that had taken place in the House and outside about the desirability of the introduction of the measure. I am open-minded. I hope that, having heard the Minister, I shall have an opportunity to respond to him further. I

also hope to hear the views of other members of the Committee on the matter.

I have an anxiety that the scope of schedule 4 goes too far, and that, as a result, we shall drive a cart and horses through the old principle of double jeopardy, so that it will be reserved not for exceptional cases, but for cases in which the prosecution simply discover further evidence and want to reopen the issue. If I understood the Government's approach to the matter correctly, they were at some pains to emphasise that that measure was to be exceptional. The current drafting of schedule 4 suggests that it could be much more than exceptional: it could turn into a matter of routine. That said, I also acknowledge that the offences listed in schedule 4 are of a type that many would consider fairly serious—I consider class A drugs offences to be very serious. However, where do we draw the line? We should think about that.

I think that I have broadly covered my amendments, and do not wish to take up too much time. Amendment No. 330 inserts the words ''murder or genocide'' in subsection (8)—a recognition of another offence that we accept should be covered. Amendment No. 348 leaves out schedule 4 entirely. It is not grouped with amendment No. 343, although it follows consequentially from it.

I hope that that provides some material on which the Committee can consider the issue, and on which the Minister can respond. I am wholly pragmatic about the matter. I accept that there is a legitimate argument to revise the law, although I have some anxieties about that as a lawyer.

Sylvia Hermon (UUP, North Down)

I am most appreciative to the hon. Member for—Beaconsfield?

Dominic Grieve (Conservative, Beaconsfield)

Yes.

Sylvia Hermon (UUP, North Down)

Thank you. Even at this hour of the morning, I think that I got it right.

The hon. Gentleman seems to be suggesting that the category of offences should be restricted to only the most serious, such as murder. Does he accept that the very serious nature of such cases would mean that they would attract significant media speculation at the first trial? How, therefore, can he possibly have any confidence that the people accused would have a fair trial?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady raises an extremely important issue. I was intending to reserve my arguments on that to the clauses that cover the procedure by which the mechanism will operate rather than trying to deal with it now. However, the hon. Lady raises a key issue of principle, because if a fair retrial is impossible, that may be a compelling argument for voting against this entire part of the Bill. I am perfectly alive to the viewpoint of those members of the Committee who decide to take that approach—I do not know how many of them there are—because it is totally legitimate and in conformity with our old principles of law. This part of the Bill introduces profound difficulties in principle, because, historically, the principle of double jeopardy offered powerful

protection to the individual against the actions of the state. There are also difficulties with the details of how one would still ensure a fair trial, but I was going to reserve my arguments on that procedural matter for later.

The principle of double jeopardy can, perhaps, properly be dealt with now, and I am grateful to the hon. Lady for raising it. It is an extremely important principle for ensuring that the citizen is not harassed by the state. That said, its introduction in the middle ages reflected a state of society and a relationship between the subject and the King that is, mercifully, different from that which exists today. If one looks at the records of state trials in the 15th century, one can see how judges were involved in trying to bludgeon juries into returning a verdict that conformed with the wishes of the judge and the state. When the Anglo-Saxons, who were under the Norman yoke, miraculously succeeded in establishing the rule that they could, at least, be put through that process only once, it became one of the most powerful tools in asserting their rights against those of the King and the court. That was a key development in our national history. One only has to read about the occasions when juries dug in their heels and refused to conform, and the penalties that were visited on them as a result, including being locked up for their presumption, to appreciate that it was the most powerful tool in securing liberty.

Although in 2003 we are, perhaps mercifully, not in that situation, such a setting could easily return. In putting part 10 on the statute book we will, without the slightest doubt, be providing a tool that will be very important if our system of government deteriorates and departs from the high standards that we enjoy today—

Humfrey Malins (Conservative, Woking)

Until 1997.

Dominic Grieve (Conservative, Beaconsfield)

Well, things have deteriorated somewhat since 1997, but to be fair to the Minister, I would not suggest that we have reached a medieval level of unfairness.

Hilary Benn (Labour, Leeds Central)

History is becoming a little less accurate.

Dominic Grieve (Conservative, Beaconsfield)

I was trying to be as historically accurate as possible; I am grateful.

We are passing a potential tool to the state that could enable it, if it became unscrupulous, to harass people. That is a legitimate area for the Committee to consider. That consideration must be balanced against the sense of legitimate public outrage when clear and compelling evidence subsequently emerges against a defendant who has been acquitted in a case that caused public anxiety. There will be strong grounds for thinking that although the acquittal may have been the result of a proper consideration of the evidence, the jury were in fact wrong.

Should we therefore provide such an exceptional tool? I should be interested to hear from the hon. Member for North Down (Lady Hermon). There are powerful arguments for accepting it as part of the system of justice, but I would not be doing justice to

the public disquiet that I have heard expressed if I did not recognise that a legitimate argument can be made for bringing in a mechanism of that kind.

Sylvia Hermon (UUP, North Down)

I am very grateful to the hon. Gentleman for giving way again. I ask him to consider a high profile and controversial case, which was most upsetting for the family. I refer to the Stephen Lawrence case. If DNA evidence became available connecting the five youths to the crime of which they were acquitted, does the hon. Gentleman think that the legislation could possibly be used to retry them with any sense of fairness?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady is quite right. It would be difficult, and perhaps rather dangerous, to comment on an individual case, particularly one that I followed only in the press. However, even if the provision is passed, it has always struck me as somewhat improbable that that case will ever be reopened. Indeed, the evidence that I have read suggests that it will not. The proposal originates from the inquiry that followed that case. It is perhaps somewhat unfortunate that that case is such a poor example of the proposal's potential application.

There is no doubt that at least some of the public and media interest in the proposal stems entirely from the report. Prior to that, I do not remember its being a major topic of discussion, although from time to time people have certainly said that they were extremely troubled by particular acquittals, especially when evidence emerged 20 years later to suggest that the person had been properly indicted.

I think the Minister is inviting me to give way.

Hilary Benn (Labour, Leeds Central)

As the hon. Gentleman has given way, I am grateful. I think also of the one or two cases in which a person, having been acquitted, then declares, ''Well, I did it after all.'' That is even more of an affront, particularly to the family of the person who lost his life.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is right. It depends whether the person has given evidence, but further trials for perjury have arisen from such declarations. Perjury attracts a substantial sentence, although not usually of anything like the same duration as that which the person would have received had he been convicted of the original offence. I can think of a number of perjury trials of people who were foolish enough to declare subsequently that they were guilty of the offence, especially of those who had been into the witness box to deny it.

Paul Stinchcombe (Labour, Wellingborough)

Could the hon. Gentleman confirm whether those of his hon. Friends who were members of the Home Affairs Committee before the last election voted against that Committee's report, which favoured such a change in the law? Could he also confirm whether it was part of the Conservative party manifesto to introduce similar changes?

Dominic Grieve (Conservative, Beaconsfield)

If I may say so, I think that the hon. Gentleman knows the answer to both questions. First, I am not aware of the Committee having indicated an objection to the change. Secondly, on a number of occasions, voices have been raised in the Conservative

party in favour of its introduction—for precisely the reasons that I put forward this morning when initiating the debate.

As I said to the Minister at the outset, I am pragmatic on the issue. I have read part 10's various clauses, starting with clause 62, and there are areas on which I am pushed one way or another. I am worried about the disappearance of the double jeopardy principle, but I appreciate that there may be compelling reasons for its removal. That will be my approach in Committee, rather than an argument based on some principled objection, but I shall be interested and delighted to hear those principled objections.

I dare say that the matter will be returned to on Report. I hope that it will be, because if ever there was a matter on which the House should pronounce, it is the retrying of cases. That is a difficult area. As we make our way through the clauses, I shall see whether part 10 can be improved and, if so, how. If we can reach the point at which it may be possible to improve one or two areas that cause me particular anxiety, I may be far more reassured on the surrender of the principle.

The hon. Member for Wellingborough (Mr. Stinchcombe) is quite right: I suspect that different views have been expressed in all political parties. The press expresses different views, as do the public. It is worth remembering that, as an instrument for fighting crime in general, clause 62 is completely irrelevant. By any showing, the number of such retrials that are likely to take place in any given year is likely to be extremely small, and that is based on the Government's own assessment.

Humfrey Malins (Conservative, Woking)

To reinforce the point, I tell my hon. Friend that Mr. Calvert-Smith, as he then was, confirmed exactly that when he gave evidence to the Select Committee. He anticipated a handful of cases at most per year.

Dominic Grieve (Conservative, Beaconsfield)

I find it difficult to see that the clause will make some major contribution to crime reduction, but it will be symbolic of intent, and symbolism is sometimes important. Furthermore, in certain cases it may facilitate putting behind bars somebody who is a serious risk to the public. However, one is bound to say that if somebody who is a great danger to the public has been acquitted and subsequently retried, yet has not in the meantime committed a further criminal offence because of a propensity, the question of subsequent danger may have been somewhat blunted. That all depends on how long it takes the retrial to occur.

Vera Baird (Labour, Redcar)

Although the measure would not assist mass crime reduction, surely it is a critical issue of public confidence. There is a famous case of a wrongful acquittal in my area in which a man confessed to killing a woman, having been tried twice and the jury being unable to convict.

To pick up the hon. Gentleman's final argument, that man has not been in trouble since because he has been in prison for perjury for lying about his guilt in

the first trial. He was sentenced to only six years, however, and will get out quite soon. He will be living close to the mother of the woman whom he now admits he killed. Such raw injuries do huge damage to the public's view of the criminal justice system: they tend to think that if it is wrong and unjust in those examples, it probably is generally.

Dominic Grieve (Conservative, Beaconsfield)

I fully understand the hon. and learned Lady's point, and I hope that that is what I meant when I mentioned symbolism. Symbolism relates to whether people have confidence in the criminal justice system, and there is absolutely no doubt that, at present, that confidence in its various forms appears to be at an all-time low.

Paul Stinchcombe (Labour, Wellingborough)

Given that Conservative members of the previous Home Affairs Committee supported such proposals, given that the Conservative party went into the last general election supporting such proposals and given that the Conservative party proposed such a policy before the Labour party did, does the Conservative party not accept in principle that the double jeopardy rule should be amended?

Dominic Grieve (Conservative, Beaconsfield)

I do not differ from the hon. Gentleman in his analysis, but that is not a reason for the Committee not to spend time considering the issues.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

May I ask the hon. Member for Wellingborough whether he agrees that the implication that members of a Select Committee take a party view is constitutionally unacceptable? Members of Select Committees are meant to be independent. They are not guided by party Whips and are not required to follow party policy. If the hon. Gentleman was implying that a view taken by members of a Select Committee should in any way be taken to be the policy of their party, I hope that he now realises that that represents a dangerous confusion about the roles of the Executive and the legislature and the party freedoms of Back Benchers.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely, and my experience of serving on a Select Committee was that few votes took place. One reason for that was the tendency of the Committee, properly in my view, to exercise independent judgment and to try as far as possible to speak with one voice. I have no difficulty with the Select Committee report. I look forward to hearing the views of Committee members who are also members of the Select Committee as well as to trying to improve part 10, including clause 62. Once we have done that, I intend to sit back and take an overview of the matter.

I am perfectly mindful of the arguments on both sides. I say to the hon. Member for Wellingborough that the issue of principle touched on by the hon. Member for North Down is not what worries me most, for the reasons that I explained about the development of double jeopardy and the different current setting. I have a greater anxiety about the practicalities. When we have considered those, we shall be entitled to sit back and say, ''Is this all worth it, in view of the magnitude of the change and the benefit

that would flow from it?'' That is the approach that I intend to adopt. I look forward to hearing from the Minister and from other Committee members, and I hope that they give their independent view, rather than showing anxiety about conforming to party policy.

David Cameron (Conservative, Witney)

Before my hon. Friend leaves that theme, will he confirm that when a Select Committee—I served on one before the election—is clearly tending in a particular direction and has taken a view on a matter previously, a member who is outnumbered 10 to one may either make a tremendous fuss and have his name recorded by way of an amendment or see the writing on the wall, accept that the Committee view is just that and wait for the debate in Standing Committee or in the House to make his view known?

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend is right. That is how I viewed my participation in a Select Committee during the previous Parliament. I should like to be enlightened as to other Members' views.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is an important debate on an important subject—we all agree about that. My hon. Friend the Member for Somerton and Frome (Mr. Heath) and I have tabled an amendment that goes to the heart of the debate on what offences might qualify to be retried, and would replace the Government's proposals with those of the Law Commission.

Although I do not have a theologically fixed view about the matter, I have an instinctive concern about the change and I need to be persuaded. I have not been persuaded yet, for several reasons. My party has quite properly considered the matter. One of my colleagues sat on the Select Committee and took a view in line with the recommendation that changes should be made. No pressure was put on him to come to a different view and he was entitled to take it.

In a debate on the issue in Westminster Hall in 2000, I criticised the Government for coming to a view before the Law Commission had completed its inquiry, which seemed to me to be bad policy and a bad political approach. As the hon. Members for Beaconsfield (Mr. Grieve) and for North Down reminded us, the issue came up after the Stephen Lawrence inquiry and one recommendation prompted the Law Commission to look at it again.

It was important to allow the Law Commission to reach a view that we could all consider before any of the political parties formed an opinion, so I was surprised that the Government came to a view before the commission made its recommendations. The commission, which is probably the most authoritative and competent body to consider the form of the law in practice, reached a very considered view after taking evidence, consulting and listening to parliamentary voices. It said that there should be a change and made important recommendations in part 8 of its report, which was published in March 2001 under the title ''New Evidence and the Double Jeopardy Rule''. It said in paragraph 1:

''We recommend that the rule against double jeopardy should be subject to an exception in certain cases where new evidence is discovered after an acquittal, but only where the offence of which the defendant was acquitted was murder, genocide consisting in the killing of any person, or (if and when the recommendations in our

report on involuntary manslaughter are implemented) reckless killing.''

Having considered the issue, the commission took the view that only the two or three most serious cases should be subject to that change. In paragraph 2 of the report, ''Retrospective effect'', the commission considers whether the change should be prospective or retrospective and decides:

''We recommend that the new exception should apply equally to acquittals which have already taken place before the exception comes into force.''

In the light of that recommendation, I asked my party policy-making process to consider the matter, which it did. It reported to our party conference, which makes decisions on behalf of the party, and this was the one criminal justice reform issue on which the policy committee report gave an option. That was because, as the hon. Member for Beaconsfield pointed out, there were different, and perfectly properly held, views and it was thought entirely reasonable to take a general view.

A good conference debate produced the view that retrial should be an option—for only the most serious offences, however—but that it should be only prospective and not retrospective. That is our party policy and I put it on the record so that people are clear about the considered view of the Liberal Democrats. I am as bound by it as is any other member of our party, so my colleague and I will vote according to it.

I wish to deal with three issues. First, the principle has two considerations nowadays, one of which is the offence to the sense of justice when the public believe that new evidence shows that an injustice has been done and a guilty person has walked free. I am aware of a case in the north-east, to which the hon. and learned Member for Redcar (Vera Baird) referred, that discredits the current system. It caused huge anger among family, friends and community, and is a good argument for changing the system. Of course, occasionally—we must be suspicious when this happens—somebody claims to have committed an offence that they did not commit. Let us not be naïve.

I am thinking in particular of people who are less well educated or may not be mentally stable or who may be, in the old phrase, educationally subnormal. We must be careful not to presume that someone who makes an admission is necessarily guilty. That would be an injustice, and we must deal with it.

Humfrey Malins (Conservative, Woking)

I appreciate that we shall debate these matters in more detail later, but does the hon. Gentleman agree that many people—particularly those who may be of limited intelligence—make confessions for reasons of boastfulness or publicity-seeking? We should be very careful about that.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is particularly true of lesser offences. The further down the tariff we go—from murder, genocide and manslaughter to section 18 offences, such as violence, wounding and stabbing—the harder people want to appear. They can make claims in all sorts of contexts, and it only takes one person to report such a boast before we have reports in

the media saying that so-and-so admitted something. People may say things not because they want to tell the truth but because they want to establish their machismo or leadership. That is the first point.

The second point is that we have not considered the Scottish tradition, which is different. Indeed, we have never considered it, which slightly surprises me. Three verdicts are available to the criminal courts in Scotland, the third of which is ''not proven''. When I inquired some time ago, I was told that such a verdict was not infrequent; indeed, there are several every year, even in major cases.

I was first told about this as a child, on a family holiday to Scotland. I was taken to the courts in Edinburgh—I can see the Solicitor-General thinking, ''That's a rather sad way to spend your holidays,'' but she will understand my point if she bears with me. I first visited Scotland when I was about 11, 12 or 13, so I was not that young. I was taken to the courts because my great-great-grandfather had been an advocate. His first case as a junior was that of Madeleine Smith, who was accused of murdering her lover. It became one of the most famous murder trials in Scottish legal history. The court delivered a ''not proven'' verdict. I was taken to the court because it was an important place in family history, and it was an interesting visit. My point, however, is that we should consider whether a ''not proven'' verdict should be available to juries in this country, and I am surprised that the Government have not thought about that. Where such a verdict was delivered, there would be a strong case for a retrial if other evidence appeared.

The third point of principle relates to the list of offences in schedule 4. They are not all to do with the taking of life and are not even in the same category as that proposed by the Law Commission. Therefore, they pose an additional, substantial risk. One benefit of the criminal justice system is that, when a trial is finished, that is the end of the matter—if someone is acquitted, they are acquitted. If we change the law and incorporate the 30 offences in the schedule, we should be under no illusion about the fact that the acquittal of anyone charged with one of them will become provisional. There will be no finality, because the verdict will not be final.

That is a serious change to the criminal justice system. Subject to appeal, a guilty verdict means that there is finality. Through the jury, society has made its pronouncement. It can be challenged once or twice, but that is the end of it. Cases can, of course, be referred back, so there is an exception. However, that is not an equality. Subsequently acquitting someone who was wrongly found guilty and imprisoned ensures that the wrong done to them is corrected. However, it is a different matter if someone is acquitted in the first place. One could argue that a wrongful acquittal does a wrong to society. None the less, the burden on the individual in knowing that there is no finality outweighs the advantage to the society of being able to bring that case back to justice, which I think changes the justice system in a significantly disadvantageous way.

Although the Liberal Democrats are persuaded by the argument for the most serious cases of murder,

attempted murder and genocide, some offences in the list—for example, robbery—belong to an entirely different, lower category in the hierarchy of offences. [Interruption.] The Minister grimaces. Robbery is in an entirely different, lower category, and cannot be compared to a killing, in terms of the significance to society. [Interruption.] Absolutely. Robbery could be something as relatively insignificant—I do not say that it is wholly insignificant—as one mobile phone snatched at the Elephant and Castle on one occasion.

David Kidney (Labour, Stafford)

Will the hon. Gentleman at least correct the impression that he has given by accepting that the Bill does not cover trivial robberies, but qualifies the offence by saying that it is with possession of a gun or a replica gun?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Yes. The offence is one up from the most trivial—I accept that. However, there are others in the category: drugs offences, for example. Drugs offences are serious. However, I have not seen the argument made anywhere that importing serious drugs is in the same league as murder or genocide. If the Law Commission had been asked to consider some of the other offences in the schedule, it would have accepted that they should be included: for example, attempted murder or soliciting murder, and, possibly, manslaughter. I would be open to persuasion, even though the Law Commission were not persuaded, that the sexual offences listed might be included because the general view taken in society, which in my view should be taken, is that rape and attempted rape are in the category of very serious offences. Interestingly, that did not persuade the Law Commission.

I can see the case for the other offences in the list that have a life-threatening implication. Offences such as arson endangering life, causing explosion likely to endanger life or property, and intent or conspiracy to cause explosion likely to endanger life or property are directly life-threatening. I understand the argument for their inclusion, although the most reputable of bodies did not reach that conclusion when it considered the matter. However, I ask the Minister how many offences in each of those categories there have been convictions for in each of the past five or 10 years. He must that information—the Government cannot put their case unless they have those facts. We need to know the figures. We need to ensure that we move from a band that is about life, threat to life and threat to somebody's personal dignity, as rape is, to other offences.

Stephen Hesford (Labour, Wirral West)

Have I understood correctly that the hon. Gentleman would not accept No. 5 on the list of offences?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The short answer is absolutely. The offence of wounding or causing grievous bodily harm with intent is tried in the courts every day of the year. Hundreds of people are convicted of that every year. Including it would in my view make the criminal justice system nonsense in practice, as well as thoroughly break the principle that only the most serious offences are retried. To include such an offence as is before the courts regularly would mean that suddenly hundreds and thousands of cases would be

open to be retried, and hundreds and thousands of people in the hon. Gentleman's part of the country and mine, having been acquitted, could be retried one, two, three, 15 or 20 years later. That is entirely unacceptable. I hope that he would find it equally unacceptable, because it is in a different league. There is no logical case—I have not seen it argued anywhere—for including offences such as that in a list. The most serious wounding offence falls short of offences to do with killing, either intentional or reckless.

Stephen Hesford (Labour, Wirral West)

The hon. Gentleman might be aware that the mens rea for murder is an intention to do grievous bodily harm that results in death. How much less, or more, intimately connected with a life-threatening case does he want it to be?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We can have a debate about what sort of offences are included. However, the hon. Gentleman knows that, when the Crown Prosecution Service decides what charges to bring, if it believes that there was an intention to kill, it will charge with murder. If that is not the case, or it is thought that the intention cannot be proved, the charge will be manslaughter. The big choices made by the CPS are not between murder, manslaughter and wounding. Choices sometimes have to be made between manslaughter and wounding, but the much more frequent decisions are between attempted murder and serious wounding, or between the most serious form of wounding and the next most serious. That is why the Minister has a duty to tell the Committee how many cases we are considering, and how the Government has come to a view, unsupported by the Law Commission, that will open up thousands of cases a year.

Sylvia Hermon (UUP, North Down)

Can the hon. Gentleman please address the point that I raised earlier with the hon. Member for Beaconsfield? Does the hon. Member for Southwark, North and Bermondsey (Simon Hughes) really want the Committee to narrow the scope of schedule 4 to the most serious offences? Those cases will have received an enormous amount of publicity, so how can he guarantee that the accused will have a fair retrial?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is why I believe that, even if we pass this law, unless it applies to a wide range of offences, it will almost never be implemented. It is not betraying a confidence to say that when the hon. Member for Beaconsfield, the right hon. Member for West Dorset (Mr. Letwin), my hon. Friend the Member for Somerton and Frome and I went to see the Minister of State at the Home Office, Lord Falconer, and the Under-Secretary who sits on this Committee about issues arising from the Bill, our longest debate was about how to ensure that there would not be a second trial with a jury that, from the beginning, held the view that it would not be there if there were not a presumption that there would be a guilty verdict.

We shall come later to the provision for the second trial to be judge alone. However, that does not answer the question—

Ian Lucas (Labour, Wrexham)

Will the hon. Gentleman give way?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

No. That does not answer the question, because there will be a different quality of justice in the second trial, and there will be no choice in the matter. I share the view of the hon. Lady that the more exceptional the case, the more likely it is that it will have been all over the papers. Unless the jurors have been abroad for five years, living in a forest, and come home the minute before being summoned to jury trial, they will know about it. I have significant knowledge of the two highest-profile cases in which that issue has arisen—those of Stephen Lawrence and Damilola Taylor—because both occurred in south London. In neither case could there be a fair trial of the same defendants. I have said that to Doreen Lawrence and to all the supporters of the Lawrence family, and to the Taylor family. I say nothing here that I am not willing to say to their faces. A retrial would not be justified in either case.

Dominic Grieve (Conservative, Beaconsfield)

Does the hon. Gentleman agree that one of the big changes that has occurred in the past 20 years has been the willingness of the press to continue arguing, for instance, that someone has committed an offence after their acquittal? In the old days, an acquittal was final, and there were several cases in which libel actions were brought and substantial damages obtained. That is now not the case, and there appears to be a completely different climate in which the press are willing to chance it. The chances must be that any retrial may be preceded not by a police investigation, but by the issue being constantly ventilated through the press before the Director of Public Prosecutions intervenes to say that something should be done.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Absolutely. When we raised the matter with Ministers, Lord Falconer said that he would consider that point, and in a society where we have a free press, there would have to be a change to limit the way in which the press covers such cases. Like every member of the Committee, I can think of a case in which arrests were made for a high-profile offence last year, and there were many days of press coverage about the people who were arrested before the matter went even before a court, let alone to trial. If that case goes to a jury trial, I will be hugely surprised if there is anyone in the country whose view of it has not been influenced by the press. It is impossible for people not to be influenced. Judges direct juries to put things out of their mind, but we are living in the real world where that is not entirely possible for judges, let alone for other people.

The fourth point is that if the Government make the right to a retrial retrospective, they will make every acquittal for each of the 30 offences provisional. If they make it prospective, everyone will know the score. They will know in future that when a defendant is acquitted of one of those offences, the acquittal will not be final and the case could come back to court. That will be the context in which every trial takes place.

It is not unfair that someone who was acquitted when they were guilty should be brought back for trial, and all the submissions said that a retrial would happen in practice in only a handful of cases each year. However, considering the number of people who will be walking about thinking that although they are innocent, they could be taken back to court to be retried, what will actually happen is a significant injustice, and an imbalance of justice, against people whom the judicial process has said are not guilty.

The argument for the change to be prospective has two advantages. First, it would reduce the injustice that would be done to the thousands of people who have been acquitted of crimes. Secondly, it would allow the criminal justice system to concentrate on its future work rather than the completely unrealistic job of going back over all the cases that resulted in acquittals that may have been wrong. The criminal justice system is creaking, and it is almost incapable of managing its current case load. Even if crime is going down, the courts—the magistrates, stipendiaries and court staff—are struggling to manage. As I said in a previous sitting, sometimes the probation service cannot find a single officer to turn up to the biggest court in the land. To say suddenly that it is theoretically possible to reopen any case going back 50 years with anyone still alive strikes me as both impractical and difficult in principle.

When the Minister replies, I hope that he will explain the arguments and justifications that have led the Government to extend so widely the list of offences proposed by the Law Commission. I insist that we have the figures showing how many people have been tried and acquitted in each of the categories of offence in each of the past five or 10 years, so that we know how many people will be affected by the change. Without those figures, we really cannot have the debate, and it would be unfair and unjust to do so.

Hilary Benn (Labour, Leeds Central)

It is the principle.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

No, it is not only the principle but a matter of practicality. I want to be able to tell my constituents or the public how many people will have provisional acquittals after the Bill is enacted. We need to know that. The Government should know that, and I will table questions about it if the Minister cannot give us the answer today. I hope that the Minister has the answers, because it would be unfair if he had come to the Committee without them.

I hope that the Committee will carefully consider going beyond the recommendation resulting from the proposal on which the Law Commission has consulted. That recommendation said clearly that only the most serious offences should qualify; otherwise we would be fundamentally changing the criminal justice system.

Humfrey Malins (Conservative, Woking)

Clause 62 is, arguably, the most important clause that we have considered so far. As we all know and appreciate, the double jeopardy principle is an ancient one that goes back to Roman law. It has been in our own common law since about the 12th century. The simple proposition that it contains is that the state, with all its resources, should be allowed only one attempt to convict an

individual. That is both a matter for the clause stand part debate and a general principle from which we should be very cautious about departing.

Life has changed dramatically, however, and powerful arguments have been put forward in the past few years for a relaxation of what was an outstanding principle and is still a good one. That principle needs re-examining and there are good reasons for doing so. The main reason is that there have been so many developments with regard to DNA, photographic and technical evidence that a position of near-certainty can be established, which could not have been the case in the past. Ordinary people have begun to think that if there has been an injustice and it could be put right, it should be. That is why we are the debating the matter.

The hon. Member for Nottingham, North (Mr. Allen), in an aside to me outside the Committee the other day—a pleasant aside, of the sort that I would always expect from him—raised the interesting question whether, when we are in the Committee, we should speak as Members of Parliament representing our constituents, or as lawyers, representing a so-called purist legal view. I try to do a bit of each, but can move into one camp or the other, sometimes erroneously.

I was teased, by implication, by the hon. Member for Wellingborough, whom I have got to know well on the Select Committee on Home Affairs, about what I, and others in the Conservative party, said about double jeopardy in that Committee. He knows as well as I do that there is a lot of give and take on such Committees, and I do not dissent from that report. I have, however, been caught out once in the past, when I said one thing in one place and was forced to vote another way in another—but that is life in Parliament. I do not, however, do that as a matter of course.

There was a big murder case in Mickleham, near Dorking, in 1968. Roy Tutill, a young boy, was taken away and murdered. The inquiry continued for 35 or 40 years. It shocked the area; no one knew whether the murderer was a local man. No one was charged at the time, so this is not a double jeopardy situation but, for the sake of argument, we could assume that someone was charged and that they were acquitted because the evidence at the time was very thin—a sighting of a vehicle and a person.

Recently, the whole of the Surrey community was pleased to see that someone had been arrested in Birmingham and charged with the crime on the basis of DNA evidence. There was a conviction fairly quickly. That could not have happened 30 or 40 years ago, but it can now. Everyone thought that that was justice. It does not involve double jeopardy, because the person was not originally tried, but they might have been. I therefore understood the point made by the hon. Member for Nottingham, North: with one's Member of Parliament hat on, one can say, ''Yes, that's justice.''

There has been a high-profile murder case involving a young girl in Surrey quite recently. Colleagues will

have seen the closed circuit television picture of someone by a car picking up a young girl. The picture was very blurred, but it was sent to America, where it was refined. That may not have been enough, but who knows? Perhaps in X years, the refining of the photograph will be good enough.

Those issues did not arise in the great days of double jeopardy, so I understand why we are changing the rule and I recognise in a sense the principle of the clause. We should all recognise that we must have this debate, because justice can mean different things depending on whether one has a lawyer's hat on to defend someone or is talking as an MP on behalf of constituents. As I said, I accept that point.

Amendment No. 262 would limit the offences that we dealt with to murder and rape. I am not saying that that would be right, but I shall set out arguments as to why it could be. I also have some specific questions, which I hope that the Minister can deal with. First, I believe that double jeopardy is recognised throughout the common law world and used by more or less all developed legal systems. I should be very interested to hear from the Minister which developed countries still maintain double jeopardy in its purity, which have relaxed it and which have seen developments as a result of relaxing it.

I thought that there were 29 offences, but the hon. Member for Southwark, North and Bermondsey was right to say that there are 30. Which is the most serious offence? There is nothing more serious than murder, so let us focus on that for a moment.

James Clappison (Conservative, Hertsmere)

Treason.

Humfrey Malins (Conservative, Woking)

I think that both the cases to which I and the hon. Member for Southwark, North and Bermondsey referred involve murder. I referred to the murder of Roy Tutill in 1964, and the case involving the young girl in Surrey recently was murder. The high-profile cases are murder cases.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

All those cases involve killing, but we may never know whether even the Stephen Lawrence case and the Damilola Taylor case were murder, because we may never know the intent of the people carrying out the attacks. We must be careful. Those were killings, but I am not sure that any of them were murders.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman is right: all those cases involved a loss of life and as such could properly be thought to be terribly serious. I am talking about those cases that quite rightly enrage the public—murder cases.

I do not know what the next most serious offence is. Members of the Committee may take a view on that. Amendment No. 262 suggests that we should discuss limiting the changes in the double jeopardy rule to murder and rape. Is rape the next most serious case? I do not know. The amendment is simply designed to discover whether, if we get over the hurdle of saying that the double jeopardy rule needs to be looked at—I think that I must be content with that, for all the reasons that I have given—there is an argument for some limitation thereafter.

Stephen Hesford (Labour, Wirral West)

Would the hon. Gentleman accept that genocide is fairly serious?

Humfrey Malins (Conservative, Woking)

I think that I have to—[Laughter.] We must not laugh, because we are trying to have a serious debate. Of course I accept what the hon. Gentleman suggests, but I am trying to put the seed of my argument into the mind of each member of the Committee. Can we consider a scale? I do not know whether that is worth doing, but I suspect that it may be.

I have a specific question for the Minister regarding the schedule of 30 offences. Do all those offences carry a life sentence? Secondly, are there any offences that are not in the schedule that carry a life sentence? We shall hear the answers in due course. We agonised for a while in the Home Affairs Committee, and I think—the hon. Member for Wellingborough will correct me if I am wrong—that we said that we understood the proposed relaxation of the double jeopardy rule for offences involving a life sentence. There was a lot of chat about the murder rate and so on, but that was our catch-all solution.

It is important to discover whether all the offences carry a life sentence, and which other offences not in the schedule carry one; if they all do, we would understand that. If some of them do not, we would like to know why they are in the schedule, and if other offences that do carry a life sentence are not in the schedule, it would be nice to know why they are not there. It is possible that the schedule departs from the recommendations of the Home Affairs Committee.

Paul Stinchcombe (Labour, Wellingborough)

May I put to the hon. Gentleman one reason why some offences that might carry a life sentence should not be included in the Bill? One of my former constituents was convicted of arson, not of endangering life, because he set fire to some church curtains in the week in which both his parents died. He was given a discretionary life sentence, and served 24 years.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes a good point. Although it does not wholly answer my question, it is a straight answer to one aspect of it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I think that conspiracy involves a potential life sentence. It is on the list. However, conspiracy is the one charge that can be used to get a conviction when there is no other evidence, but it can also be used in relation to offences that are much less serious. That is another matter that should be clarified.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman raises another question to which we should have an answer. Leaving all those questions aside, here is the next one—

James Clappison (Conservative, Hertsmere)

I apologise for having arrived a few minutes late. The answer to the hon. Member for Southwark, North and Bermondsey is that the conspiracy in question has to be conspiracy to commit an offence listed in the schedule.

Humfrey Malins (Conservative, Woking)

That is true. My hon. Friend is right.

Vera Baird (Labour, Redcar)

The explanatory notes assert that all the cases involve a sentence of life imprisonment, and a quick look at the list suggests that they do.

Humfrey Malins (Conservative, Woking)

That shows that I should have read the explanatory notes more carefully. However, I infer from the odd nod of approval from other Committee members that they found my question helpful, and might have been equally guilty of failing to read the notes. I am grateful to the hon. and learned Lady, and I am sure that her words will be confirmed by the Minister. Perhaps my next question is not so irrelevant: are there any other offences that carry a life sentence but do not appear here? May I also ask on what basis each of the offences was selected to go into the schedule?

Dominic Grieve (Conservative, Beaconsfield)

Somebody said, sotto voce behind me, that treason was a worse offence than murder. Interestingly, it does not feature in the schedule.

Humfrey Malins (Conservative, Woking)

That is astonishing, Mr. Cran. It is the sort of revelation that tempts me to ask you to suspend the Committee for a week. I see you shaking your head. Even if treason is not here, although it strikes me that it is a pretty serious crime, I do not think that it is triable summarily, with a maximum of six months or £1,000; it must be triable only on indictment. I have a feeling that it might carry a heavy sentence.

James Clappison (Conservative, Hertsmere)

I own up to being the ''sotto voce'' in question. Can I tell my hon. Friend that Parliament has only recently legislated to change the maximum penalty for treason from death to life imprisonment.

Humfrey Malins (Conservative, Woking)

My hon. Friend is absolutely right. That is within our memory.

Stephen Hesford (Labour, Wirral West)

On the back of that helpful intervention, may I add that one of the other offences commuted from the death penalty to a lesser sentence was starting a fire in one of Her Majesty's dockyards. That is not in the schedule either.

Humfrey Malins (Conservative, Woking)

Is it not? I am sure that I remember that one vividly. The hon. Gentleman is right: that is another case in which I suspect that a life sentence is necessary. The Minister must answer all these points. The Committee cannot have an informed debate without specific answers to all the questions that hon. Members are asking.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend might agree that the treason point is interesting. Returning to the origin of double jeopardy, I should point out that most of the 15th-century trials that I mentioned were for treason. Perhaps the Government feel that that is too strong meat, even though, logically, there is no reason why treason should not be in the schedule too.

Humfrey Malins (Conservative, Woking)

I am asking a specific question. Does treason carry a life sentence? If so, why is it not there? That comes back to the point of my amendment. We are not dealing with stand part, but with the qualifying offences. What is the basis for the inclusion of each of the offences? Who decided on those 30? What consultations were held between Government and outside bodies to arrive at that list? What offences nearly made the 30 but did not quite? If they did not make it, why not? This is how a debate in Committee should develop. The Minister will say that the offences are all dreadfully serious, but there is a subjective point of view about such matters. Ever since I was burgled, and my father was burgled just before Christmas, I

have taken a harsh view about burglary—I issue that as a public warning.

Arson with intent to endanger life is very serious. However, there are cases of arson with intent to endanger life that are not as bad as other such cases. Ditto, section 18 wounding can be pretty grievous, but it can be run of the mill. I do not say that lightly; I mean in terms of frequency, and of its being put on the indictment in order to get a conviction on a section 20, which is a lesser offence. I do not minimise those two offences, but would anyone compare them with a really aggravated burglary, involving men with masks breaking into a house at two in the morning, threatening and tying up elderly people and then ransacking their house, terrifying them so much that they simply cannot live in it again?

I would ask you which you consider the more serious, Mr. Cran, but it is unlikely that you would respond. I have a view, and other hon. Members will have one, too. Why do I ask these questions? I ask them in order to draw from the Minister in detail, backed up by empirical research, the background to the 30 offences. That is what we need. This is not a debate on the Floor of the House; this is about nuts and bolts, and every aspect of those nuts and bolts requires detailed attention.

The amendment would limit the list to murder or rape. That is my view. The hon. Member for Wirral, West (Stephen Hesford) made a good point about genocide. However, I tabled the amendment on the basis that if we are to depart from double jeopardy—I have to accept the argument for that—we should focus our minds specifically on how far we should go. If we are to take a long walk, why not take one step to begin with? If our first step proves to cure the so-called mischief of which we complain—I think it just might, if we go for a more limited position—it might at the same time not so damage the principle of double jeopardy that we run the risk outlined by the hon. Member for Southwark, North and Bermondsey and my hon. Friend the Member for Beaconsfield, of giving too much to the state, too soon, and taking too much from the individual?

Sylvia Hermon (UUP, North Down)

Judging by my interventions to date, no member of the Committee will need a crystal ball to gauge how bitterly opposed I am to any erosion of the double jeopardy rule. My comments may be better made in a debate on whether clause 62 should stand part of the Bill, Mr. Cran, but as patience is not one my virtues—I cannot make that boast—I hope that you will bear with me while I make a few points on the subject.

I am conscious of the fact that clause 62 expressly states that this part of the Bill applies when a qualifying offence has been tried in England and Wales. It does not extend to Northern Ireland. However, as someone who is strongly supportive of the Belfast agreement, which guarantees Northern Ireland's position within the United Kingdom, I often argue that criminal legislation should extend to Northern Ireland, as criminal justice is not a devolved issue. Even when the Assembly was sitting,

that subject was not devolved. On this rare occasion, however, I am relieved that clause 62 will not extend to Northern Ireland.

As I said, I am bitterly opposed to any erosion of the double jeopardy rule. The hon. Member for Southwark, North and Bermondsey spoke of the need for finality. Defendants must know that the end of a case is final—that they cannot have that albatross hanging around their neck for ever and a day, in case further evidence turns up. I am particularly struck by the point made by the hon. and learned Member for Redcar, whose views I always listen to carefully.

Stephen Hesford (Labour, Wirral West)

I understand the principled position that the hon. Lady is taking, as does the rest of the Committee. I concede that someone who is guilty may be acquitted, for reasons that are not clear at the time. The hon. Lady talks about an albatross, but the albatross can be removed if that person pleads guilty. If such people do not accept their guilt, it is their fault.

Sylvia Hermon (UUP, North Down)

I think that we are talking about someone who is wrongly acquitted.

I am particularly concerned about the fairness of such trials. I would not wish to join the Liberal Democrats or the Conservatives in narrowing the list to even more serious offences. The 30 offences listed in schedule 4 are all exceptionally serious; they include murder, manslaughter, kidnapping, genocide and war crimes. By the very nature of their seriousness, they will inevitably have attracted enormous media attention at the first trial. If there is an acquittal, the press and media will perpetuate the story for many days, and even months. That comment may reflect my personal hostility to the type of press that we have nowadays; I have to admit to that.

I cannot believe that we can look at clause 62 in isolation, because a case can go for retrial only if the prosecution has made an application to the Court of Appeal about new and compelling evidence under clause 65. In order to decide whether the evidence is compelling, the Court of Appeal has to conclude that it is ''highly probable'' that the person is guilty of the offence. There is not only intense publicity at the first acquittal, but a ruling by the Court of Appeal that it is highly probable that the person is guilty.

In those circumstances I cannot for one moment believe that the person will be given a fair trial. I have mentioned the most high-profile cases of all before, and I do so with great sensitivity. It is ghastly that the Lawrence family still have no sense of justice or finality. I am convinced that the clause could not be applied to retry the youths who were acquitted in the first place.

Just before the intervention of the hon. Member for Wirral, West, I mentioned the intervention of the hon. and learned Member for Redcar. Quite rightly, she cited a worrying case where after being acquitted a gentleman admitted that he was guilty of the murder of a woman. We have argued against capital punishment because innocent people have been hanged. I am delighted that under the European

convention and protocol 6 we will never see it back in this country, but mistakes are made. Mistakes will always be made and guilty people will go free. We should improve our prosecution. We should certainly not go down the route that is proposed here of eroding double jeopardy.

Hilary Benn (Labour, Leeds Central)

We have had an excellent debate. I am grateful to the hon. Member for Beaconsfield for the way in which he introduced the debate and spoke to the amendments. Indeed, he gave us a history lesson in which I learned things. As he was speaking, Home Office officials were probably preparing to put in my red box some reports of 15th century trials to improve my understanding of history. It was a genuinely helpful introduction to the debate. It explained why we have the double jeopardy rule currently.

Equally, the hon. Gentleman set out cogently and powerfully the case for making a change. That is the central issue in the debate. I sense, with the one clear reservation that we have just heard from the hon. Member for North Down, that there is pretty broad consensus across the Committee about the case for making a change. I accept that the purpose of our deliberations now is to deal with the nature of that change and the rules and procedures that should surround it.

We are discussing an issue of principle. To put it starkly: is it right that someone who committed a serious offence should, as people would perceive it, get away with it? This is an important issue for the criminal justice system. The clause is not about dealing with a greater volume of offences. My hon. and learned Friend the Member for Redcar cut right to the heart of the issue with the case that she cited. It is about confidence in the criminal justice system, to which the public look for justice. It is hard to think of a greater affront to that sense of justice than that, when there is clear and compelling evidence that someone did it, the system prevents that from being tested in a court of law. That is the issue.

Vera Baird (Labour, Redcar)

It even prohibits that man, if he wished to do so, from pleading guilty to the offence.

Hilary Benn (Labour, Leeds Central)

That is an extremely powerful point, which strengthens the argument even further. The consensus in favour of making a change spreads more widely than the members of the Committee who are present this morning. The point was made by my hon. Friend the Member for Wellingborough, when he drew attention to the fact that it had been a manifesto commitment of both the Conservative and Labour parties. It is a change, albeit in restricted form, that the Law Commission proposed and the Home Affairs Committee, both in its inquiry during a previous Parliament and in its comments on the Bill, supported. I see in the briefing notes received by Committee members that Justice, for example, accepts the case for a change. There is a tide moving in the right direction. That is why the Government are proposing the changes.

I come to the argument advanced by the hon. Member for Beaconsfield—it was also part of the case put by the hon. Member for Southwark, North and Bermondsey—that there is a case for introducing

exceptional measures for exceptional circumstances, but that it might become routine. It is important for the Committee to distinguish between the judgment that has to be made about the range of offences to which the change should apply—I shall come to that—and the fact that exceptional tests and requirements will have to be met in order to reach the point at which new and compelling evidence can be put to a jury in a retrial.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate that point. The hon. and learned Member for Redcar intervened to the effect that people can plead guilty because it is their fault. The inexorable logic behind that statement is that it should be possible to be tried for the same offence as many times as the state requires if new evidence comes to light that suggests that the original acquittal or series of acquittals might be wrong. I am not being flippant. It is reasonable logic. However, in considering the proposal, we should seek clarification from the Minister as to the philosophical basis for the limits that he will place upon it. Otherwise, there is a serious risk that the limits will become progressively further apart.

Hilary Benn (Labour, Leeds Central)

I do not think that that was what my hon. and learned Friend the Member for Redcar said. I shall let her confirm that.

Vera Baird (Labour, Redcar)

I do not want to turn the Minister into a ping-pong ball that bounces between the hon. Member for Beaconsfield and his Auntie Vera, but I have to speak to him severely on this occasion. What I said was that it would prevent a culprit who had confessed to an offence from pleading guilty to it if he wished to do so. That, I would suggest, is how absurd the ban is.

Hilary Benn (Labour, Leeds Central)

I am sure that the Committee is grateful for that contribution.

It is important to acknowledge that exceptional tests have to be met because, while holding clearly to the principle that it is wrong that a person who has committed an offence should get away with it, we recognise some of the arguments about how it might apply in practice.

I accept the point that was made with great passion by the hon. Member for North Down. She asked how fairness could be assured. When we reach clause 66(2), she will see that there is a specific provision to test whether a fair trial can occur, because we recognise that fairness issues are an important consideration.

With great respect, I found the argument of the hon. Member for Southwark, North and Bermondsey about finality and retrospection with regard to acquitted defendants profoundly unconvincing. If the person did not do it, it is hard to see where the new and compelling evidence that would meet all the tests for which the subsequent clauses provide could come from. I do not accept for one minute that the change is intended to be an instrument of oppression directed against people who are rightly acquitted. It is meant to be a mechanism for ensuring that the guilty are held to account by a court, on the basis of the evidence, in a subsequent retrial.

I do not accept the argument about retrospectivity. It seems that the injustice felt—the point was made by my hon. and learned Friend the Member for Redcar—is just as great if it relates to a murder or another serious offence that occurred some years ago. We all recognise the changes that have made it more possible to establish the identity of the person who committed the crime. The obvious example is DNA evidence, which has brought about a fundamental change in the evidence base, but it is not the only one. There are other ways in which evidence can come to light subsequently.

I cannot understand the argument that, in those circumstances, we should change the rules of the game, although I accept that the hon. Member for Southwark, North and Bermondsey did not put it that way. The fact is that, 10 or 15 years ago, it was an offence to murder someone. If we accept the case for changing the principle of double jeopardy, I see no possible argument whatever for saying that it should apply only to murders committed after the date of the legislation.

Sylvia Hermon (UUP, North Down)

Given the significance of the proposal for our legal process, will the Minister assure me that if it, unfortunately, ever saw the light of day, and if it were made retrospective, its provisions would be compatible with the European convention on human rights?

Hilary Benn (Labour, Leeds Central)

Yes is the short answer.

Dominic Grieve (Conservative, Beaconsfield)

I have tabled an amendment covering that point in relation to another part of the Bill, but as we are discussing the point now, perhaps that will shorten matters.

The Minister cited the example of DNA. If DNA evidence comes to light, why should the person be prejudiced in relation to an offence that he committed at an earlier date? Would there not be prejudice in the case of someone tried for a serious offence, in relation to which he did not give evidence, so there could be no allegation of perjury, who subsequently decided to write his memoirs, in the belief that he was not committing any sort of act to his detriment by admitting the offence, and who was then prosecuted? We cannot ignore that issue.

Hilary Benn (Labour, Leeds Central)

I am grateful for that intervention, which strengthens my case. What greater affront to justice could there be than that the family of the victim in those circumstances says, ''He did it and he has written a book saying so, but because the Committee was persuaded by a fundamentally miscast argument that the measure should apply only from the date when the legislation came into force, we cannot obtain justice''? The hon. Gentleman makes the point for me, which is why I do not accept the argument about retrospectivity.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to make two points before we leave the matter. First, I understand the Minister's argument, but he has not addressed the fact, which is clearly understood, that under the current law and the law that has existed for his lifetime and mine, the acquittal is the final decision. That is how the system

works. To later change the law so that an acquittal is only provisional must constitute a fundamental change to the interests of all parties, including the defendant.

Secondly, what number of cases will potentially be reopened if we change the law? Furthermore, how on earth can the prosecuting authorities decide fairly which cases to reopen when they cope inadequately with their current work load?

Hilary Benn (Labour, Leeds Central)

I shall answer that point, but I shall first allow my hon. Friend the Member for Nottingham, North to intervene and try to deal with both questions together.

Graham Allen (Labour, Nottingham North)

I do not expect the Minister to answer now, but perhaps his officials could supply me with the information. My memory tells me that there was an article in a Sunday newspaper written by someone who had been tried for killing children. He had got off and was paid to write an article describing his crimes. Will my hon. Friend ask his officials to find out the details of the case and write to hon. Members about it? That would give us a slightly different perspective on this rather lawyerly argument.

Hilary Benn (Labour, Leeds Central)

I am sure that another of my letters will be winging its way to Committee members about this clause, and, as always, I try to be helpful. Hon. Members have drawn the attention of the Committee to examples. In response to the point raised by the hon. Member for Southwark, North and Bermondsey, we do not owe a duty to the guilty person to protect them in the way that he suggests. I do not accept that.

I have the figures on section 18 offences, although I am sure that they are widely available; it is clear that what the figures are is neither here nor there. This is not a utilitarian measure. It is a change on a matter of principle for the reasons that I gave in my opening remarks. In 2000, there were 2,778 cases for section 18 offences, resulting in 1,357 convictions. I hope that that is of some assistance. However, the figures are not the issue here; principle is the issue. The only cases in which this part could apply are those that meet the requirements of this clause and subsequent clauses. There are very strict tests and many hurdles that must be cleared. Let us not forget that if someone is acquitted, the police may continue their investigations if they believe that they will find the right person.

The hon. Member for North Down spoke about the position in Northern Ireland, but I should tell her that my ministerial colleagues in Northern Ireland do intend to apply the retrial provisions to Northern Ireland by order. That may disappoint her.

Sylvia Hermon (UUP, North Down)

The Minister must have seen my jaw drop with incredulity on hearing that his colleagues would even consider extending the provisions to Northern Ireland. In relation to a claim by the Minister earlier, I certainly do not owe a duty to protect a guilty defendant, but we certainly owe a duty to any defendant to guarantee them a fair trial. It boils down to whether we can guarantee a person a fair trial. I am appalled that these provisions are to be applied to Northern Ireland, with its very particular

circumstances. I hope that he will relay that message to his colleagues in Northern Ireland before the provisions are implemented.

Hilary Benn (Labour, Leeds Central)

I am grateful to the hon. Lady and I gladly undertake to draw her comments to the attention of my colleagues. She returns to the fundamental point: the fairness of the trial. The Government feel that there are sufficient provisions in the clause to deal with that. We will debate the issue in later clauses, as well as the protection that exists in all trials that the judge has final responsibility for deciding whether the process is fair.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am surprised by the Minister's answer to the hon. Member for North Down about the position in Northern Ireland. Clause 272(1) states:

''Subject to the following provisions of this section, this Act extends to England and Wales only.''

Clause 272(2) lists the clauses of the Bill that apply to Scotland and Northern Ireland, and clause 62 or the linked ones are not among them. Other provisions are made for extension to Northern Ireland. I appreciate that under clause 269 there is provision for Order in Council, but in support of the hon. Member for North Down, that is absolutely the sort of issue that should never be dealt with by an unamendable order. Will the Minister tell his colleagues, in the strongest terms, that it would be quite wrong for this hugely important issue for Northern Ireland to be dealt with by secondary legislation? It is the sort of issue that should be dealt with only by primary legislation for Northern Ireland.

Hilary Benn (Labour, Leeds Central)

I am grateful for that intervention and I shall draw the attention of my Northern Ireland colleagues to the issue raised by the hon. Member for North Down as well as to the point raised by the hon. Member for Southwark, North and Bermondsey.

I shall now deal with the range of offences. Amendment No. 262 would restrict the range to which the change applied. Another amendment would extend it. I realise that they are probing amendments. I was asked how the list was drawn up. In the end it is a matter of judgment and the Government judge that this list of offences should be covered. We have heard that the schedule list is wider than recommended by the Law Commission but less wide than recommended by Sir Robin Auld. We came down somewhere in the middle.

The hon. Member for Woking (Mr. Malins) asked whether all 30 offences carried a life sentence. All do, apart from one offence—No. 19—relating to genocide, for which the penalty is 30 years. On the question whether any offences not in the schedule carry a life sentence, the answer is, as the hon. Gentleman anticipated, yes. I have learned that all common law offences, including keeping a disorderly house, carry a maximum life sentence. I am sure that that would never happen under your chairmanship, Mr. Cran. That example suggests that it would not be sensible to include in the schedule all the offences that potentially carry life sentences.

Dominic Grieve (Conservative, Beaconsfield)

I do not want to force the Minister into a lengthy, discursive explanation of every offence in the schedule, but his explanation of the Government's reasoning has so far been extremely cursory, so he

should amplify on how the choice was made. Was a background paper produced, which we could read in the Library? Something must be made available to the Committee to help us to understand what led the Government to choose those offences.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Is it possible?

Hilary Benn (Labour, Leeds Central)

That is a more fundamental question, which would detain us for hours and hours. I do not want to disappoint members of the Committee, so I shall attempt to summarise the proposals in schedule 4. They deal with a range of serious offences—punishable, with the one exception, by life imprisonment—that have a serious impact on the victim or society. I have been honest in saying that it is ultimately a judgment. We examined a full range of offences and judged that these were the appropriate ones for the list.

I did not detect that any hon. Member wanted to remove any of the offences from the list. The Government are attempting to achieve a balance and we believe that these offences are the right ones for the list. As we saw in debates on earlier provisions, in the last analysis, these matters are often a question of balance and judgment—and this list expresses the Government's judgment.

Vera Baird (Labour, Redcar)

Will the Minister help me with one point? As the Committee now appreciates, I am a keen reader of explanatory notes. The notes on this clause state that cases may be retried where

''a person has been acquitted of one of the qualifying offences . . . or of a lesser offence of which he could have been convicted at that time.''

No. 5 in schedule 4 deals with someone charged under section 18 of grievous bodily harm with intent. If they are acquitted they are, by implication, acquitted of a section 20 offence, which is grievous bodily harm without a specific intent. It surely is not intended that offences as low down the list as section 20 should be in the schedule. The answer may lie in clause 62(2), which states that a person acquitted in proceedings is treated

''as also acquitted of any qualifying offence of which he could have been convicted''.

I would not want it to be extended to section 20, and I suspect that it is not because clause 62(2) states that it must be a qualifying offence in its own right. Is that right?

James Cran (Conservative, Beverley and Holderness)

Order. I remind hon. Members yet again that interventions are not speeches. However, I did not interrupt the hon. and learned Lady because she was making an important point.

Hilary Benn (Labour, Leeds Central)

My hon. and learned Friend, having made an important point, helpfully answered the question by drawing the Committee's attention to the fact that it must be a qualifying offence. The obvious example would be that of murder and manslaughter, when a person had been charged with murder and acquitted, but new and compelling evidence subsequently came to light that suggested that it was highly probable that he was guilty of manslaughter. That is how the provision would apply.

Dominic Grieve (Conservative, Beaconsfield)

For the avoidance of doubt and to get it on the record, there could not be circumstances in

which someone was acquitted of an offence that fell outside the schedule, but he was then tried, which implied that at the time there was no desire to bring the offence within the schedule; but subsequently he was tried again on the basis of evidence and a more serious charge was brought in order to get round the fact that retrial would not otherwise be possible.

Hilary Benn (Labour, Leeds Central)

I shall have to reflect on the hon. Gentleman's point and write to him about it.

This has been an excellent debate; we have laid bare some fundamental issues that go to the heart of this and subsequent clauses. We have covered a lot of extremely useful ground, which will assist us in later debates. I hope that members of the Committee will vote in due course that the clause should stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall be brief. This has been an important debate, but what troubles me is a point made by the hon. Member for Beaconsfield, that we have ended up with a Government proposal that is, by their own admission, neither one thing nor the other. There are three proposals that have come authoritatively into the public domain: the Law Commission's proposal—two offences, murder and genocide—and a prospective third offence when the law permits; Lord Justice Auld's set of proposals, which is a wider list; and the Home Affairs Committee proposal that has life imprisonment as the test.

The Minister was right to remind the Committee that common law offences potentially carry life imprisonment. Therefore if life imprisonment is simply defined to include all common law offences, there might be some illogicality and a bit of a nonsense about it, of which the Minister gave a good example. In parenthesis, I can imagine someone keeping a disorderly house for life but life imprisonment would not be the right penalty. I assume that the Home Affairs Committee meant those offences that by statute were subject to life imprisonment. It would be helpful for the Minister to clarify what offences excluded from schedule 4 would be in that list. He helpfully said that one is included that is not in the list, but we know that there are others, such as aggravated burglary. If the Government win the argument on Report, the House, and certainly the House of Lords, will want to return to the question of the criteria for inclusion. I am not persuaded that the Government's middle-way—I do not use that term pejoratively—but selective proposition is less persuasive than the proposal from the Law Commission, which I consider to be an authoritative proposal, and that from the Home Affairs Committee, which seems to be a principled straightforward division between life imprisonment offences and others.

Whatever my views about the principle and the practicality, I ask Ministers to reflect on the way forward as being one that might command more confidence in all the parties.

Humfrey Malins (Conservative, Woking)

I am deeply disappointed by the Minister's reply. I do not think that you will be

surprised to hear me say that, Mr. Cran, and others may not be either.

I asked a series of specific questions, some of which were not answered. Those that were, were answered completely inadequately. If we are debating an amendment as opposed to having a clause stand part debate or a debate on Second Reading, the Committee must deal with the nuts and bolts; otherwise, there is little point in its sitting.

I asked specific questions on the principle of double jeopardy. Which of the main western democracies have that principle? Which have maintained it and which have relaxed it? In what way have those that have relaxed it done so and what were the consequences? Those questions are fair, and the Committee would be well guided by getting some information. No answer seems to be forthcoming from the Minister.

Hilary Benn (Labour, Leeds Central)

I apologise for not having responded to the hon. Gentleman's point. I shall gladly provide an answer, but I do not have the information with me.

Humfrey Malins (Conservative, Woking)

I understand, but it would be helpful to have the information by this afternoon when we shall still be discussing these clauses. Officials will have inevitably researched such matters. No official would produce such a Bill without having researched comparable jurisdictions. That is inconceivable. It would be helpful if the Minister could provide that information in the afternoon sitting.

Sylvia Hermon (UUP, North Down)

To add to the importance of the point that the hon. Gentleman has just raised, it is the case that the Extradition Bill is being considered in another Committee somewhere along the Corridor. Double jeopardy plays a large role in extradition cases. It would be valuable to know in which other jurisdictions there is any qualification of the double jeopardy rule.

Humfrey Malins (Conservative, Woking)

We are increasingly valuing the hon. Lady's contributions. That was a typical example of something that we should consider.

Do all the qualifying offences carry a life sentence? The answer is no, except for No. 1 and No. 19. Do any other offences that are not listed in the schedule carry a life sentence? That was a key question. To be told that under common law many crimes carry life sentences is one thing. My question was different. I asked which other sentences carried a life sentence in normal statute. Are there any others or not?

Graham Allen (Labour, Nottingham North)

The hon. Gentleman talks with a great deal of experience, having served on the bench. I raise with him the example that I raised with my hon. Friend the Minister of an individual who commits sexual crimes against children, murders those children, only to be found not guilty and then paid to write up his experiences in a Sunday newspaper. That is not only getting away with the crime but, as my hon. Friend the Member for Stafford (Mr. Kidney) said, is a double insult to the victims and their families. Surely, given the hon. Gentleman's experience, he feels that the Committee must deal with that question.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman is right; we must deal with that question. We shall discuss it later under

the issue of new and compelling evidence of guilt. Such a situation as the hon. Gentleman outlined leaves a very sour taste in our mouths and probably stirs genuine feelings of sheer anger. No one would gainsay that.

Therefore, I asked whether any other offences carry a life sentence. I then asked—and we have all the time in the world, Mr. Cran—what was the basis for each of those offences being selected. The answer was that it was a matter of judgment. Well, it was hardly a matter of baked beans. It had to be a matter of judgment, but that is no answer. There must have been a methodology behind the examination of cases.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We hope.

Humfrey Malins (Conservative, Woking)

Yes, we hope. The question that then arises is whether other cases were rejected. It would be helpful to know that; indeed, I think that I asked about it. If other cases were excluded, what was the reason? What was the cut-off point? None of that has been dealt with.

I raised the issue of burglary and aggravated burglary. I asked whether the Minister or those in the know thought that the offence against the elderly couple that I mentioned was as serious as some of the offences in the Bill. Answer came there none.

At the end, I argued—powerfully, I hope—that there was a case for saying, ''Why not take one step at a time?'' I have had no answers, and I am making a mild protest. I am sure that I will get them all after lunch. Indeed, even now, officials are setting about answering my questions, and I look forward to hearing further from the Minister. If he seeks to catch your eye on later clauses, Mr. Cran, and to provide some of the answers, I for one will not object.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister up to a point. I rather agree with my hon. Friend the Member for Woking that some of our questions have not been answered. I am also grateful to Committee members who raised other issues and enlightened me quite a lot about the construction of the clause.

In a moment, I shall seek the Committee's leave to withdraw the amendment.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It may help the hon. Gentleman and the Committee to know that I will seek to press amendment No. 330 at the end of the debate.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. Gentleman. Although I shall seek leave to withdraw the amendment, we shall need to return to some issues. That is particularly true of the scope of the offences that should be included in the list, although that perhaps applies more to schedule 4.

First, let me pick up a couple of points, some of which are pertinent to the general matters that we have raised. Following up a point picked up very neatly by the hon. and learned Member for Redcar, I asked the Minister about qualifying offences, but he was understandably reluctant to answer. Let me therefore point out to him some of the potential oddities in the list.

The offences of burglary and aggravated burglary do not feature in schedule 4. Burglary does not attract

a sentence of life imprisonment, but aggravated burglary does. It is normally charged in cases where an armed person breaks into a house. Often, the householder will be present. It is not, therefore, simply a matter of going in equipped. Often, as my hon. Friend the Member for Woking said, the householder will be trussed up or threatened while the robbery takes place in the premises.

That raises an interesting point. First, the offence is not in the schedule. To return to my earlier point, I would very much like to hear some Government reasoning as regards what is and is not in the schedule. I appeal to the Minister not to treat us like nursery schoolchildren, from whom certain things must be concealed. We and the public are entitled to know which defining paper made Ministers include the present list. Making that information available might help the Minister's case enormously. It would also help Parliament's appreciation of the issue. As matters stand, however, there are several oddities and inconsistencies in the list.

A further inconsistency flows from the list. I have flagged it up, but we can amplify it a little. Let us suppose that a serial burglar is charged with the offence of aggravated burglary. He is alleged to have entered the house and threatened the householder with a weapon—[Interruption.]—a knife; then he is said to have stolen property. He is tried and acquitted of the offence. Twenty years later, quite well known, with a well established reputation as a burglar, and having retired—there are such people; I sometimes see them featuring on television programmes—he writes his memoirs, in which he says, ''I was jolly lucky in that case. I did not go into the witness box to give evidence, but the truth was that I committed the offence and was lucky to get away with it.''

That man cannot be charged with aggravated burglary, but it seems to me, on reading the provision on retrial for serious offences, that he could be charged with robbery, because robbery is an offence that he might have been charged with at the time. We need some clarification on this. I have given only one example, but I suspect that if I went away to do more thinking I should come up with others.

Stephen Hesford (Labour, Wirral West)

On the facts that the hon. Gentleman gave, the man could not be charged with robbery; there is the question of a firearm in the schedule.

Dominic Grieve (Conservative, Beaconsfield)

Forgive me; I think that I said, ''Let us assume he took a firearm with him.''

Stephen Hesford (Labour, Wirral West)

You said a knife.

James Cran (Conservative, Beverley and Holderness)

Order.

Dominic Grieve (Conservative, Beaconsfield)

Let us not go into the detail. The point is that the similarity between the offence of aggravated burglary and the offence of robbery is such that it would be possible for that offence to be one of the qualifying offences had it been charged as robbery. Is it the Minister's intention that in such circumstances, following the emergence of extra evidence, or after a confession statement in the memoirs, a trial for robbery could take place? At the moment any further attempt to bring a charge of robbery would

undoubtedly be thrown out by the court, the man in question having been already acquitted on a charge of aggravated burglary arising from identical facts and the same offence, and the prosecution having elected to bring that charge and not another one.

Paul Stinchcombe (Labour, Wellingborough)

I wonder whether the scenario that the hon. Gentleman suggests could conceivably arise. As I read clause 62, it applies only where a person has been acquitted of a qualifying offence set out in the schedule. If someone has been acquitted of a completely different offence the point does not arise.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman may be right. That is why I raised the question with the Minister. However, the Minister did not answer, which is why I have raised it again. Subsection (2) states:

''A person acquitted of an offence in proceedings mentioned in subsection (1) is treated for the purposes of that subsection as also acquitted of any qualifying offence of which he could have been convicted in the proceedings''.

Surely, if he could have been convicted, he might have been convicted if he had been charged. That is why I have asked the question. Perhaps I have misunderstood the wording. It is a difficult clause and I have not spent hours poring over it, but there is a question to be answered and the Minister may be able to answer it immediately.

Hilary Benn (Labour, Leeds Central)

I rise simply to confirm what my hon. Friend the Member for Wellingborough has just said. The offence would have to have been a qualifying offence.

Dominic Grieve (Conservative, Beaconsfield)

Perhaps the Minister will excuse me if I look again at the phrasing in question. In proceedings set out in subsection (1) a person is acquitted of an offence. That is treated, for the purposes of the subsection, as also being acquitted of

''any qualifying offence of which he could have been convicted in the proceedings because of the first-mentioned offence being charged in the indictment, except an offence . . . of which he has been convicted''.

I do not find that easy wording, but my reading of it suggests to me that I might be right and that the hon. Member for Wellingborough, who has had longer to read the phrase than I have, may be wrong. I should be grateful if the Minister would write to me to confirm that.

Paul Stinchcombe (Labour, Wellingborough)

I think that the hon. Gentleman is wrong because he is looking at the wrong subsection. Clause 62(1) states:

''This part applies where a person has been acquitted of a qualifying offence''.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. Gentleman. I think that he is right, so I shall stop worrying about it. I am grateful also to the Minister. However, I make no apology for trying to satisfy myself.

Some issues on the list of offences still need to be considered. As I said, we shall return to the list, and the best place to do that will probably be on Report. I hope that the Minister will tell us a bit more about the Government's reasoning. I am mindful of the position

of the hon. Member for Southwark, North and Bermondsey, who tabled his own amendment, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On a point of order, Mr. Cran. Before this afternoon's sitting, can the Minister take advice on the legal basis for what he said on extending the provision to Northern Ireland? I have re-read the relevant clauses, and there seems to be no basis for extending the Bill by order. I do not have a comprehensive knowledge of the relevant legislation applying to Northern Ireland, and it would be helpful to know under what legislation the provisions could be extended.

James Cran (Conservative, Beverley and Holderness)

That is not a point of order for me. The Minister has heard what the hon. Gentleman said.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 333, in

clause 62, page 38, line 23, leave out paragraph (c).

I would appreciate it if the Minister could help on the other matter during the clause stand part debate.

The amendment makes a single, simple point. Clause 62(1) provides three circumstances in which exceptions against double jeopardy could be permitted. The first is straightforward; it applies when someone has been acquitted of a qualifying offence on proceedings in England and Wales on indictment. The second is when the person has been acquitted

''on appeal against a conviction, verdict or finding on indictment'',

and that, too, is straightforward. The third is when the person has been acquitted

''on appeal from a decision on such an appeal.''

I tabled my probing amendment because I want to know what is intended by that third circumstance. I presume that it means a decision of the House of Lords, because the cases will have started in the Crown court, gone on to the Court of Appeal and then gone to the House of Lords. I want to explore whether that is correct, and to make one other point.

It was put to me by the Law Society—this may be incorrect—that the provision envisages a retrial, possibly of a case that has been acquitted on appeal from the Court of Appeal, where the proceedings may have been going on for a considerable time. Few convicted persons appeal twice. How many cases a year in criminal law in England and Wales go all the way up to the House of Lords? The Minister can tell us later—I expect that he does not have the answer to hand now. The Law Society tells me that even fewer can obtain any measure funding for such a process, and that very few indeed obtain an acquittal in such circumstances. I have every reason to think that its argument is well founded, as I would guess that one would have to obtain leave to appeal, and, if one were legally aided—as one would almost definitely be—one would have to secure the authority for the money for the appeal as well.

Apart from my general understanding that the provisions concern a House of Lords acquittal—in which case, I understand the argument that it should

be included in the general list and would not dissent from the Bill—could they also refer to any other form of appeal? Such cases might include, for example, cases in which the matter had somehow been remitted back to the court, or in which there had been a second appeal on a second offence on an indictment for which one matter had been appealed earlier. I want to explore the full import of the provisions, which may be entirely satisfactory and consistent with the rest of the argument, though I would be grateful for an explanation.

Hilary Benn (Labour, Leeds Central)

I undertake to answer the questions on the number of cases, though not now. I am happy to confirm that the provisions relate to acquittals by the House of Lords. The House of Lords considers appeals on point of law only. However, it still has the power to order an acquittal when allowing an appeal. Notwithstanding those circumstances, the possibility remains of new evidence coming to light, which would fit the requirements.

David Heath (Liberal Democrat, Somerton and Frome)

It is hard to see how the appeal to the House of Lords, which is on a point of law, could be overturned by a point of fact, on which the proceedings would take place.

Hilary Benn (Labour, Leeds Central)

It could, because, for example, the new evidence might be completely unrelated to the point on which the original appeal was won.

I shall have to reflect on the question posed by the hon. Member for Southwark, North and Bermondsey about second appeals when I fully understand the circumstances of which he spoke, and I undertake to respond to him on that point.

Dominic Grieve (Conservative, Beaconsfield)

I must simply say that my name and those of hon. Friends appear on the amendment. However, for the reasons that I explained in my opening remarks on the earlier group, I think, having reflected on the matter, that the restriction on cases that have gone to the House of Lords is not good. I cannot see the distinction, as the matter will be on a point of law. The provision is an oddity, in the sense that it reflects the sheer extent to which inroads will be made into our principles of justice, and how we

normally assume that the process develops. However, I do not see why an appeal to the House of Lords should stand as a bar on the retrial any more than any other appeal.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am not quite sure of all the implications. I raised the matter to ensure that there was some clarification. I am perfectly comfortable with the Minister's reflecting on the potential breadth of the two questions of whether the provision applies only to House of Lords decisions, and how it interrelates to appeals that are on a point of law for which new factual evidence has come forward.

Paul Stinchcombe (Labour, Wellingborough)

May I put one possible example to the hon. Gentleman? On a point of law, evidence A might not be admitted, and acquittal would therefore follow, but evidence B might be found 10 years later.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand that point, and think that we need to know what the position is. Others, probably far more intelligent than I am, have spent longer reflecting on the matter and are not sure what the interpretation should be. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 342, in

clause 62, page 38, line 38, leave out subsections (4) and (5).

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 301, in

clause 62, page 38, line 38, leave out subsection (4).

No. 302, in

clause 62, page 39, line 1, leave out subsection (5).

Dominic Grieve (Conservative, Beaconsfield)

This is a probing amendment. I did not find subsections (4) and (5) the easiest to follow, though I think that I understand the explanatory notes—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 62 - Cases that may be retried

James Cran (Conservative, Beverley and Holderness)

I remind the Committee that with this we are discussing the following amendments:

No. 301, in

clause 62, page 38, line 38, leave out subsection (4).

No. 302, in

clause 62, page 39, line 1, leave out subsection (5).

Dominic Grieve (Conservative, Beaconsfield)

I said about three words before lunchtime arrived. As I think I explained to the Minister, I tabled the amendments because I found the wording of subsections (4) and (5) difficult. These probing amendments propose the options of deleting both subsections, deleting subsection (4) or deleting subsection (5).

I do not have too much difficulty with subsection (4). It is fairly straightforward. As I understand it, it provides for the possibility of someone having been tried abroad for an analogous criminal offence, because we may not have a strict analogy between the foreign offence and an offence in the United Kingdom. It provides that if the facts of the case are such that they would lead to a prosecution in this country, the offence would be a qualifying offence and a retrial could take place.

Subsection (5) is slightly more difficult because it seems to suggest that some sort of administrative proceeding brought against a person in a foreign country could constitute a qualifying offence even though it did not amount to a criminal offence under the law of that country. That must be what it says because it uses the words,

''however it is described in that law.''

I seek clarification on that matter because I am intrigued about whether, in those circumstances, it would be necessary to have retrial proceedings at all. I would have thought that, in those circumstances, it might even be possible to prosecute in this country without removing the double jeopardy rule. I hope that the Minister will enlighten me on that point so that the Committee and I can understand what subsections (4) and (5) would achieve.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There are another three questions that the Minister might usefully answer in this context, and

he will see that my hon. Friend the Member for Somerton and Frome (Mr. Heath) and I have added our names to amendments Nos. 301 and 302.

First, will the Minister amplify the explanatory notes, which refer to the Government's intention in relation to article 55 of the Schengen convention and appear to suggest that there could be a retrial of offences that are not similarly described elsewhere? Secondly, will he explain the logic and implication of the explanatory note that suggests that the Bill does not change the criminal law in Scotland in this respect? It suggests that the clause will not change the situation in a Scottish court if there has been an acquittal in the European Union or elsewhere. What impact will the Bill have on cases that come first to the English and Welsh jurisdiction or first to the Scottish jurisdiction when there might be a retrial on the other side of the border?

Thirdly, will the Minister clarify the position in relation to Northern Ireland? I seek elaboration both on the point that I made earlier and on a linked question that follows from it. Until and unless the law is changed in Northern Ireland, what would be the consequences of the legislation for cases in Northern Ireland that resulted in acquittal and which might be retried in England and Wales, or the other way round? Because it is relevant in Northern Ireland, what would be the implications for Ireland, England and Wales if the provisions were to be extended to Ireland—that is, to both sides of the border? We need to be clear what we are talking about. For me, as for the hon. Member for Beaconsfield (Mr. Grieve), it is a probing exercise.

I observe that clause 12 of the Extradition Bill, which is being considered at this moment in another Room, proposes:

''A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the United Kingdom where the judge exercises jurisdiction.''

I have not thought it through entirely, but that seems to contradict what is proposed in the Bill. In any event, I would be grateful for an explanation of how the two Bills would work if enacted in the present form.

Hilary Benn (Labour, Leeds Central)

May I deal first with the question of Northern Ireland? I apologise to the Committee for having inadvertently misled hon. Members this morning on the means by which the process would be applied in Northern Ireland. I confirm what I said this morning, which is that Northern Ireland Ministers intend that the Bill should apply to Northern Ireland, but incorrectly informed the Committee that it would be done by order. In fact, we intend to do so in the Bill, and will table amendments on Report to that effect. That deals with the point raised this morning about the process. I hope that that assures the Committee; I realise, however, that it will not reassure the hon. Member for North Down (Lady Hermon), who is opposed in principle to that happening.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

In that case, will the Minister explain why the Northern Ireland Office and the

Home Office did not address that matter before the Bill was printed? It seems bizarre that it had not been thought through. Why would it not be better dealt with in a Bill dealing with criminal justice matters in Northern Ireland?

Hilary Benn (Labour, Leeds Central)

The answer to the first question is—how shall I put this?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Difficult.

Hilary Benn (Labour, Leeds Central)

No, not difficult at all. Some hon. Members will be aware that the processes by which legislation is drafted gives rise to parallel thought processes by ministerial colleagues.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Not joined-up government.

Hilary Benn (Labour, Leeds Central)

No. I was informing the Committee that after due and careful consideration, my ministerial colleagues in Northern Ireland decided that they wished the Bill to apply in Northern Ireland. They had their own considerations, consultations and discussions to take into account when reaching that decision—that is the answer to the first question. In relation to the second question, I would argue that this is a most appropriate vehicle; we are now talking about that principle.

Sylvia Hermon (UUP, North Down)

I find that explanation even more extraordinary, given that the Government and the Northern Ireland Office have made clear their intention of devolving criminal justice and placing it with the Northern Ireland Assembly at the earliest opportunity—once the Assembly is up and running again and we have stability. I find that an extraordinary answer.

Hilary Benn (Labour, Leeds Central)

Whether the hon. Lady finds it extraordinary or not, it happens to be the case. It reflects the consideration that ministerial colleagues in Northern Ireland have given to the matter and the decision that they have reached.

It might be helpful if I say that clause 62 provides that where qualifying offences have taken place in this country, or where this country has jurisdiction over its citizens in respect of serious offences abroad, those offences could be retried here if new evidence came to light. Therefore, if a UK citizen were tried and acquitted in a foreign court for a murder committed abroad, but important new evidence subsequently came to light, the Bill would apply and the person could be retried here.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has resolved a matter that was troubling me. I found some slight ambiguity as to whether the clause could be used as a device to get round the normal rule that most of our jurisdiction is territorial. I had feared that we would end up retrying offences that had been tried abroad, which, on first bite, would not have qualified to be heard here anyway. However, I assume from the Minister's answer that that could not happen under any circumstances.

Hilary Benn (Labour, Leeds Central)

I am glad if I have been helpful. Just to complete the picture, similarly, a German national who was tried and acquitted in Germany in respect of a murder that was alleged to have been committed in

the UK could be subject to the Bill's provisions, in that a retrial might be possible here. It works both ways. Therefore, a foreign acquittal, which would currently raise a double jeopardy bar to a trial here, would, for the purposes of the Bill, be given equivalent status under these subsections to acquittals here. That is eminently logical, because if the UK had jurisdiction to try a case in the first instance, it should have jurisdiction to reopen it regardless of where the acquittal took place—subject to all the safeguards provided by the Bill. The fundamental question is, why should defendants who are acquitted abroad in cases that could have been tried here have greater protection than defendants whose cases were tried here when it comes to the application of these provisions?

In subsection (5), the point about punishable conduct points to criminal provisions. The hon. Member for Beaconsfield is right that the question of double jeopardy only arises regarding acquittals in criminal proceedings. I hope that that is helpful. In relation to Scotland—

Dominic Grieve (Conservative, Beaconsfield)

The Minister half answered my question. If that is the case, why do we have, at the end of subsection (5), the phrase

''however it is described in that law''?

Is that because Home Office advisers have flagged up instances of criminal offences, punishable under the law, that are for some reason not so described, or described in another way? I read that as applying to the possibility of some administrative sanction rather than a criminal one. That does exist in some foreign jurisdictions—some strange things go on in other countries. I should like clarification as to why it was thought that that phrase was needed.

Hilary Benn (Labour, Leeds Central)

We are talking here about the equivalence of what will constitute a qualifying offence. Because offences are described and framed differently in other jurisdictions, it will be necessary to undertake an equivalence exercise in relation to the provisions that we are discussing. In the case of murder, the qualifying offences will be pretty clear and the way that it is described in other jurisdictions will be identical. However, that might not necessarily be the case for some other offences. We shall have to go through a process to determine whether there is an equivalence of the offence that would bring it within the remit of a qualifying offence in the Bill. That would be a matter for discussion between the prosecutors in the country from which we seek someone's extradition and the Director of Public Prosecutions in the United Kingdom. In that instance, only the DPP here could make the application, so he would have to be persuaded that the qualifying offence was equivalent. Any continuing argument about the nature of that equivalence would be subject to consideration in the Court of Appeal.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I should have asked earlier, but what the Minister has just said has prompted my question. Is this a unilateral Government initiative or does it derive, for example, from a Council of Europe proposal? Are all member states to adopt the initiative simultaneously to produce a Europe-wide probability

of being able to retry in the case of new evidence coming to light? If it is not a general proposal across Europe at some stage—the question was asked differently earlier—may we have lists of those countries that already have the proposal and those that do not?

Hilary Benn (Labour, Leeds Central)

The initiative is not the product of the question that the hon. Gentleman asked. We have considered how we shall apply the double jeopardy provisions to the circumstances that are covered by subsections (4) and (5).

In answer to the question about other jurisdictions, I am sure that those members who asked questions this morning will have, as I have done, refreshed their memories by looking at the Law Commission's consultation paper No. 156 on double jeopardy, which was published in 1999. That paper contained an extremely helpful summary.

Humfrey Malins (Conservative, Woking)

I must have missed it.

Hilary Benn (Labour, Leeds Central)

I am surprised that the hon. Gentleman upbraids me in such stern terms for not having answers at my fingertips this morning in Committee. Set out in the consultation paper is a helpful description of the law on double jeopardy in other jurisdictions. However, it may be helpful to say that Finland, Denmark and Germany all provide for exceptions to the double jeopardy rule in different ways, subject to particular conditions that are not exactly similar to those that we are discussing. Members who are interested in the subject, such as the hon. Member for Woking (Mr. Malins) and many others, will, if they have not already looked at it, turn their attention to the description in the consultation paper. I hope that answers all the questions on that matter.

I come to Scotland. An acquittal that occurred in Scotland would not be covered.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Why not?

Hilary Benn (Labour, Leeds Central)

The Scottish Executive have decided that they do not want that to happen. That is a product of devolution.

Dominic Grieve (Conservative, Beaconsfield)

I just want to be sure that I understand the point. If an individual commits an offence in Scotland for which he has been acquitted, he cannot be retried in England for that offence. However, if an individual is acquitted of an offence in Germany, he can be retried here.

Hilary Benn (Labour, Leeds Central)

That is indeed entirely correct. However, it is not the first example that hon. Members will have come across that is a product of the devolved system that we now choose to operate. The matter is one for parliamentary and ministerial colleagues in Scotland to consider further.

Dominic Grieve (Conservative, Beaconsfield)

In actual fact, it raises an interesting point. The origin and background is not devolution, but the Scottish law's special position in the Act of Union. I find it extraordinary, having moved to devolution, that instead of treating Scotland as having a separate legal system and taking a power to ourselves which is of no concern to the Scots, we have decided to defer to them; yet we have not consulted the

German, French, Danish, Finnish or any other Government on their retrying people for offences committed in their jurisdictions.

Hilary Benn (Labour, Leeds Central)

I hear the point that the hon. Gentleman makes. I have described the situation as it is; it is the product of our devolved system. When it comes to extradition—this is important—those other jurisdictions will apply their own laws as to whether they should grant extradition on receipt of an application in relation to these provisions.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to press the Minister. I accept that it is the result of our legal framework, but it is difficult to see why the UK Government should feel inhibited, acting as the Government of England, in enacting a Bill for that purpose. It would then be up to the Scottish authorities whether they wanted to co-operate if we ever wanted to implement the procedure.

Hilary Benn (Labour, Leeds Central)

The situation that I have described reflects the nature of our relationship with the Scottish Executive and the Scottish Parliament, and the particular respect that we accord to their views on such matters. To answer the related point, I was saying a moment ago that if other jurisdictions have a law that says that they are not agreeable to double jeopardy, that would prevent extradition to the UK. That is a protection for those other jurisdictions in such circumstances.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Because the Minister has been careful and detailed in his answers, will he say whether there has been consultation with or formal notification to the other European Union member state Governments, whose criminal jurisdictions will at least indirectly be affected by that change?

Hilary Benn (Labour, Leeds Central)

Not that I am aware of.

I wonder whether I can take the opportunity to touch on two other questions that were raised this morning and provide the Committee with some further information. My hon. Friend the Member for Nottingham, North (Mr. Allen) raised the example of a memoir that had been published in which someone said that they had done it, and he asked whether that would provide new and compelling evidence for the purposes of the clause, including its relationship to subsections (4) and (5). That may well be the case; it would clearly depend on the nature of the evidence. It would be new, but it would be for a judge to decide how compelling it was.

I was asked with vigour by the hon. Member for Woking for a list of the other offences that carry a statutory life sentence that are not in schedule 4. I have such a list. I shall forgo reading it all, but I shall give some examples and I will be happy to circulate the list to hon. Members. The list includes the following: using chloroform to commit or assist in committing an indictable offence; impeding the saving of life from a shipwreck; administering or using drugs or using instruments to procure an abortion; a householder permitting a girl under 13 to use premises for intercourse; having possession of a class A drug with intent to supply when tried on indictment; and assault with intent to rob. Further examples are aiding or abetting an offence under section (2) or (3) of the

Explosive Substances Act 1883, and acts likely to endanger of aircraft.

I apologise for not having responded to the question on treason this morning. I shall reflect upon the point.

James Clappison (Conservative, Hertsmere)

Ah.

Hilary Benn (Labour, Leeds Central)

I shall, because it seemed that a good point had been made.

Graham Allen (Labour, Nottingham North)

Is there a qualification for first offences?

Hilary Benn (Labour, Leeds Central)

For the avoidance of doubt, there is no such qualification for any of those offences.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Will the Minister tell us what is the total number of offences on that list?

Hilary Benn (Labour, Leeds Central)

Not at the moment. If I get a chance, I shall count them. I shall certainly provide that figure in the further information that I have promised.

I recognise the probing nature of the amendments. They have given rise to a useful discussion.

Humfrey Malins (Conservative, Woking)

First, if I seemed to speak with too much vigour this morning, I apologise. It is not my style; I am normally much more relaxed. Secondly, does the Minister not agree that our gentle probing—or even vigorous probing—has resulted in us being given some useful information?

Hilary Benn (Labour, Leeds Central)

I accept that entirely; the hon. Gentleman was doing his job very effectively, as he always does.

I recognise that they are probing amendments—I shall resist them—but for the reasons that I have set out it seems logical and sensible to include those provisions in the Bill. I therefore hope that the Committee will agree to them.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There is one matter that, accidentally, the Minister has not dealt with. If the law remains unchanged for Northern Ireland, what is the position in relation to offences committed there with a retrial here, and vice versa?

James Cran (Conservative, Beverley and Holderness)

Order. I thought that the Minister had finished.

Hilary Benn (Labour, Leeds Central)

I had indeed, Mr. Cran. However, I undertake to give the hon. Member for Southwark, North and Bermondsey (Simon Hughes) a definitive answer by writing to him.

Dominic Grieve (Conservative, Beaconsfield)

The debate has gone wider than I expected. The Minister has reassured me 99.9 per cent. of the way on the wording of subsection (5)—but perhaps not completely. When he and his officials have a moment to reread it, they will see the curious way in which the phrase

''Conduct punishable under the law'',

which fixes something as a criminal offence, is to an extent negated by the phrase at the end of the subsection:

''however it is described in that law.''

I understand what it is getting at, but I would be grateful if the Minister went away and thought that

through. I want to be sure that the second phrase cannot be taken to have done away with the requirement that it is conduct ''punishable under the law''. It is to do with the administrative sanctions.

Paul Stinchcombe (Labour, Wellingborough)

I wonder whether the hon. Gentleman finds any reassurance in the requirement under the clause that such conduct would still have to be the equivalent of a qualifying offence?

Dominic Grieve (Conservative, Beaconsfield)

Yes, I think I do. That is why I said that I was 99.9 per cent. of the way there.

Hilary Benn (Labour, Leeds Central)

One hundred per cent.

Dominic Grieve (Conservative, Beaconsfield)

I am never 100 per cent. anywhere in matters human, never mind the fallibility of taking the Minister's assurances too readily. However, I am grateful to the hon. Member for Wellingborough (Mr. Stinchcombe); I think we are there. If the Minister would ponder on it, we can then ignore that issue.

The provision on Scotland is fascinating. It gives rise to some quite extraordinary consequences. I accept the logic behind it. Unlike foreign jurisdictions, with whom we have to have extradition treaties, relations between the English and Scottish criminal enforcement procedure, as opposed to the criminal justice system, are simple: we operate one system. Executing a warrant for someone's arrest in Glasgow does not require any administrative scrutiny.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It happened only yesterday.

Dominic Grieve (Conservative, Beaconsfield)

Indeed it did. It can happen readily. The Scots, not wishing to have a double jeopardy rule—perhaps they are right; they are certainly entitled to their view—would not want that special relationship to be exploited in a way that allowed police officers to summon witnesses from Scotland in order to participate in a procedure that they were not happy with. The only alternative would be some sort of extradition procedure from Scotland. However, I would not expect the Minister to be happy with a procedure that tended to emphasise a degree of Scots separateness.

I do not know what the procedures under Schengen will be, but I assume that although other countries have retrials in their own jurisdictions, we certainly could not get someone from Scotland to retry them, although we would be quite happy to send them from London to be retried. I assume that if someone has been acquitted in Germany, and the German authorities want to waive the double jeopardy rule—I think I have got it right; the Minister said that they have a way of doing that—he ought to go and live in Glasgow, because he could not be extradited to Germany from there, any more than he could be subject to the English procedure for retrial.

Sylvia Hermon (UUP, North Down)

I draw the hon. Gentleman's attention to the human rights legislation, and the guarantee of a fair trial to everyone in the jurisdiction of the United Kingdom. Interestingly, article 14 guarantees for everyone in that jurisdiction that there should no discrimination in the exercise of those rights and freedoms, whether because of political opinion or for any other reason. It seems unacceptable that within

the UK's jurisdiction, there will be discrimination between those in Scotland and those in the rest of the UK—and those in Northern Ireland, to which I am bitterly opposed.

Dominic Grieve (Conservative, Beaconsfield)

I think that what the hon. Lady says is absolutely correct. That said, however, even during the time of full parliamentary union, the United Kingdom has always accepted a measure of diversity in which laws apply north of the border and which apply in the south. Scotland was legislated for separately even when we were doing that here, so there has always been freedom to provide what the Scots wanted—or what the Government thought they should have, as the Scottish nationalists might put it.

It is an unusual state of affairs when one moves from specific offences to a more general philosophical application. We are going to end up in these islands of the Untied Kingdom with a system under which the philosophical principle of double jeopardy has been breached here, but not north of the border. It is an unhappy state of affairs, but we have no means of remedying it—unless we were to assert our powers over the Scottish Parliament, which I would not dream of suggesting. Of course, it might be argued that the Minister should not be straying down that road, but he has clearly decided that it is appropriate.

I hope that the public will get come to realise the oddity of the situation. I suspect that they are not yet aware of the fundamental change that is being introduced in one part of the UK but will not apply in another. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 300, in

clause 62, page 39, line 4, leave out subsection (6).

This matter can be taken very shortly—[Interruption.] We have discussed it, so I hope it may be taken shortly, although the debate may move on somewhat—it depends whether anyone wishes to resurrect it.

The provision is about retrospectivity. It is a central plank of the Government's proposals that the legislation should apply retrospectively. The Minister has already said that he considers that that has no human rights implications. He also made the point, for which I have some sympathy, that, if evidence subsequently emerges about an offence that a person has committed yet been found not guilty of, that person should have no cause for complaint if that evidence gives rise to a further prosecution. There are two counter-arguments. The first, the widest counter-argument, is that we would be imposing a retrospective criminal sanction, because, one way or another, we would be introducing a judicial procedure by which an acquittal is quashed. We would be destroying something that people would ordinarily be entitled to rely on for their security and peace of mind. As others have said, the certainty would be removed.

The second, narrower issue, which worries me a little more in the human rights context, is what happens when somebody shows something to his detriment through performance of an act made in

reliance on a past belief in that certainty. The obvious example is writing memoirs in which one indicates that one was fortunate to be acquitted of an offence, because the dreadful truth is that one was in fact guilty of it. One could still be prosecuted for perjury if one had been in the witness box, although not if one had not.

Some members of the Committee will say, ''Well, if someone is stupid and arrogant enough to announce publicly that they committed an offence for which they were acquitted, they have only themselves to blame if they are subsequently held to account.'' However, there is a slight problem with that argument. All sorts of people do all sorts of things every day that we consider immoral or horrible. However, such acts are not subject to a criminal sanction unless they are crimes and there is a mechanism by which people can be brought to justice.

An example—not the obvious example of something that is immoral but not an offence—is that of somebody making a statement that gives strong grounds for believing that he has committed an offence, but which cannot lead to a trial because the nature of the material is such that it is not admissible as evidence under our current rules. It might be, for instance, a confession statement that is made outside the setting of a police station, as specified under the Police and Criminal Evidence Act 1984. People who read such a statement might be inclined to consider that somebody had committed a serious offence. However, the Crown Prosecution Service might turn round and say, ''Look, we're very sorry, but although everybody may think that this offence has been committed, under the various legal protections that exist for this individual we have to accept that there are no means by which we can bring him to trial.''

We shall be subtly changing that, shall we not? In certain circumstances, statements or actions subsequent to the acquittal that currently enjoy legal protection and do not allow a prosecution to take place, might in future allow a prosecution to take place. I accept that it is difficult to pinpoint precise examples, and such examples might be in quite a restricted category. However, one cannot rule out the possibility that it will not happen. In such circumstances, there might be a valid human rights point.

Suppose for a moment that the Committee were legislating retrospectively that the 1984 Act should be abandoned, and that verbals should admissible at a criminal trial. That is the best analogy that I can think of. Someone in a police car who has a conversation with the police officer on the way to the police station in the belief that the conversation is not part of the formal investigation process and cannot be used against him in court will find that the conversation is so used, because Parliament has decided not only to change the rule but to say that it is changed for as far back as 10, 15, 20, 25, or even 30 years. I think that a human rights application would be made—and I think that it would succeed. I therefore wonder, taking that as an example, why the subsequent publication of memoirs should be any different. I would be interested to hear the Minister's views.

Sylvia Hermon (UUP, North Down)

The hon. Gentleman is absolutely right that there is a human rights dimension. He uses the words in article 6 of the European convention, now part of our domestic law, that

''everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal''.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady raises a further point about the time limit, and the reasonableness of timing and procedure. I intended to deal with that later in our proceedings, but she makes a good point.

I am making a slightly different point. I was questioning the principle of retrospectivity in a rather narrower sense, it being contrary to our legal principles and practices to make crimes retrospective—apart from war crimes legislation. I was not in the House when that went through, but I would not have voted for it, for that very reason.

Humfrey Malins (Conservative, Woking)

I voted against it.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend says that he voted against it. I thought then that it was quite wrong, whatever good reasons were given for it. On the whole, retrospective legislation is something that Parliament should not do. The Bill comes into that category, because, for the reasons that I have just described, it has the potential to give rise to human rights issues. If we were retrospectively to change the PACE rules, prosecutions could be brought against people because evidence had become admissible that was not previously allowed. However, I believe that such prosecutions would not pass the courts. I would be interested to hear the Minister's view.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I indicated earlier that, after careful deliberation, my colleagues at last year's conference came to the view that the disadvantages in retrospectivity outweighed the advantages. I understand the practical objection to legislating only prospectively. The change in the law would not happen for some time; it would happen slowly and periodically, and only future trials that led to acquittals could lead to retrials. Such a provision would not have an immediate impact.

I also understand the other practical argument, which is that the cases that are most likely to be considered for retrial by the prosecution authorities are those in which scientific evidence that did not exist at the time of the original trial becomes available; the most obvious example of that is DNA. That change is so significant that changing the law would allow that category of evidence to be used in relation to the trials of all those still alive who had been acquitted of such offences in the light of the scientific evidence then available. We may never again see such a big change, so it is unlikely that another significantly big group of cases could fall to be opened for retrial for the same sort of reason.

I understand the two practical reasons, but it strikes me that counter- arguments can still be made. It is of course technically the case—and more than technically—that the change does not create an offence of something that was not an offence at the time of trial. I am not arguing that case; I am not seeking to misrepresent that position. If the offence existed at the time of trial, it is still an offence, and it is

therefore a question of whether evidence was available then or later.

A matter of principle arises, which troubles others besides me and my colleagues. It is probably best expressed by the Law Society in its submission to Ministers and the Committee:

''The Law Society considers that any proposed exception to the double jeopardy rule should be tightly defined and should not have retrospective effect considering the fundamental nature of the change. The need for certainty of the criminal law and process is crucial in order to preserve the integrity and public confidence in the system. Defendants should only be exposed to the criminal law and process that operated at the time of acquittal.''

There is no proposal to change the criminal law—to make something criminal that was not, which would clearly be outwith the European convention. None the less, a fundamental change of process is envisaged.

I can think of many cases in which the very fact that present and past law has not allowed a second trial would affect the conduct of the process. The hon. Member for Beaconsfield and I have both mentioned the obvious example, in which someone does not give evidence in the initial trial. Under the trial rules until now, the knowledge that there could be no retrial was quite properly—it had to be—a factor in the mind of defendants, whether innocent or guilty, and their advisors. One might well have pleaded not guilty and said nothing. Indeed, in some cases one would plead guilty and, by definition, say nothing except in mitigation.

There are important cases, however, entailing the defendant pleading not guilty and saying nothing, leading to an acquittal. If new evidence arose, while there would of course be the opportunity to put one's case again, the case would be of an entirely different sort, the judgment and decisions of the first occasion having been influenced by the process. What I have outlined means that confidence in the criminal process would be undermined on the second occasion. [Interruption.]

James Cran (Conservative, Beverley and Holderness)

Order.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The upside is that under the new proposals there would be an opportunity for the Court of Appeal to consider whether there could be a fair trial, a matter that we shall debate in due course. Arguments about media coverage would be part of that issue. In my judgment, honest assessment of cases would find that the only ones for which a fair trial would be likely in round two would be those that had received no significant media coverage in round one.

All big, significant cases would be likely to fall foul of the fair trial consideration. A two-tier justice system would emerge on round two. Famous cases, or cases affecting famous people, would never be retried, but retrial would be much more likely for Joe Public, whom no one had heard of and whose case was for some reason not regarded as important. The wider the range of relevant offences, the more likely that would be; a wounding offence would be in that category. So Joe Public might have a double disadvantage. First, he might have made a judgment, as he was perfectly entitled to do, that he should not give evidence in the

first trial, on the basis that there could be no retrial. Secondly, it seems he might be in the very category of person liable to be retried.

Paul Stinchcombe (Labour, Wellingborough)

I just do not understand the hon. Gentleman's argument. He is concerned about a person who has made a decision about whether to give evidence. However, whatever decision that person made, it resulted in acquittal, so making that choice cannot conceivably have put him in a worse position.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It may indeed have put him in a worse position—[Interruption.] If the hon. Gentleman will bear with me, I will explain. There are many acquittals, but, as the hon. Member for Beaconsfield quite reasonably said, the press may report that one in particular is unfair. People who do not give evidence may be acquitted, but the press these days will frequently say that the trial was unfair and that the defendant should have been convicted. They will keep running stories saying that he is guilty, and they will not stop just because the trial court decides that he is not—that is not the way that they work.

Paul Stinchcombe (Labour, Wellingborough)

I simply do not understand the hon. Gentleman's point. The person will have been acquitted, and his position will be no different from that of anyone else who has been acquitted. If he does not give evidence, however, that will simply mean that the Crown could not prove its case without challenging him in the witness box. Why should the prosecution not be allowed to bring a case in the public interest if compelling new DNA evidence arises 10 or 15 years later to support it?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We are arguing about whether one should be allowed to use more evidence later; that is the main debate. However, saying nothing allows inferences to be drawn throughout the criminal process these days in ways that it did not before. The hon. Gentleman must know well that the media do not give up just because someone is acquitted, and the Stephen Lawrence case is an obvious example—let us be blunt about that. There were acquittals, but that has not prevented the press from regularly arguing that the men involved are guilty. I do not know whether they are, but that is what the press keep arguing.

In the past, the prejudice that defendants who were acquitted might have suffered had they not put their side of the story—it might have helped clear their name—was dealt with on the basis that there would be no further trial. Had they known that there might be, however, they might have put their case in full. Whatever the disadvantages, they might have decided that there would also be advantages. There is potentially considerable prejudice to people who do not put their case in round one, but who might be retried in the future.

Dominic Grieve (Conservative, Beaconsfield)

I, too, have been having some difficulty following the hon. Gentleman's argument, which seems to apply more to whether a retrial would be fair given the length of time since the original proceedings. However, he also flagged up a matter that I found significant, although I do not know whether we agree on it. Someone may have taken advantage of the old rules of court by choosing not to

answer questions at interview or to give evidence in court, and that could not have been used to his prejudice at the first trial. Twenty years on, however, he may be retried, and he could be substantially disadvantaged. He will be unable to refer back to what he would have said had he felt compelled to speak by the detriment clauses that apply today. Retrospectivity could greatly damage his case because the trials will take place under completely different sets of rules.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a perfectly reasonable additional point, although the hon. Member for Nottingham, North will regard it as an entirely legal one.

The rest of the debate is in Hansard.