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Standing Committee B
Thursday 16 January 2003
(Morning)
[Mr. James Cran in the Chair]
Clause 62
Cases that may be retried
9.10 am
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 343, in
clause 62, page 38, line 19, leave out 'a qualifying' and insert 'an'.
The Chairman: 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
No. 270, in
No. 330, in
No. 347, in
clause 80, page 49, leave out line 35.
Mr. Grieve: 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''.
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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.
Mr. Humfrey Malins (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?
Mr. Grieve: 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
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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.
Lady Hermon (North Down): I am most appreciative to the hon. Member for—Beaconsfield?
Mr. Grieve: Yes.
Lady Hermon: 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?
Mr. Grieve: 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
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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—
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