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Standing Committee B
Thursday 16 January 2003
(Afternoon)
[Mr. James Cran in the Chair]
Clause 62
Cases that may be retried
Amendment moved [this day]: No. 342, in
clause 62, page 38, line 38, leave out subsections (4) and (5).—[Mr. Grieve.]
2.30 pm
Question again proposed, That the amendment be made.
The Chairman: 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).
Mr. Dominic Grieve (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 (Southwark, North and Bermondsey): There are another three questions that the Minister might usefully answer in this context, and
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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.
The Parliamentary Under-Secretary of State for the Home Department (Hilary Benn): 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: In that case, will the Minister explain why the Northern Ireland Office and the
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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: The answer to the first question is—how shall I put this?
Simon Hughes: Difficult.
Hilary Benn: 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: Not joined-up government.
Hilary Benn: 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.
Lady Hermon (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: 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.
Mr. Grieve: 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: 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
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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—
Mr. Grieve: 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.
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