Double Jeopardy Rule

HC Deb 26 October 2000 vol 355 cc115-54WH

[Relevant documents: Third report from the Home Affairs Committee Session 1999–2000 HC190.]

Motion made, and Question proposed, That the sitting be now adjourned.—[Mr. Kevin Hughes.]

2.30 pm

Mr. Robin Corbett (Birmingham, Erdington)

This is the first time that we have had a debate in this Chamber on a report from the Select Committee on Home Affairs, and I confess that this is the first time that I have taken part in a debate in the different atmosphere created by the shape of this Chamber. I very much welcome it. The third report of the Home Affairs Committee on "The Double Jeopardy Rule" is unusual in several ways. It is a response to a consultation paper from the Law Commission. We did not take evidence directly from the Government, although we heard some helpful evidence from the Director of Public Prosecutions. We have not sought a Government response because that will have to await the Law Commission's final recommendations.

The Law Commission's thinking has moved on a little since its consultation paper in October 1999, and perhaps the Minister of State, Home Office my right hon. Friend the Member for Brent, South (Mr. Boateng), will tell us what the Home Office thinks about that.

The proposal to relax the double jeopardy rule in specific circumstances goes back to the Stephen Lawrence inquiry. The House will recall that, following a bungled police inquiry, a private prosecution of those who were alleged to have murdered Stephen Lawrence failed. Under the double jeopardy rule, anyone acquitted cannot be tried again for the same offence. The Macpherson report recommended that consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented. The Home Secretary then referred the matter to the Law Commission, which published a closely argued consultation paper in October 1999. It proposed that the High Court should be able to quash a conviction and order a retrial on the grounds of new evidence, subject to several conditions: first, if the defendant were convicted of the offence now alleged, the sentence would probably be of a specified minimum severity; secondly, if the new evidence makes the prosecution's case substantially stronger than at the first trial; thirdly, if there is a very high probabililty of the defendant being convicted at retrial; fourthly, if the defendant has not previously been acquitted of the offence at a trial held by virtue of this exception to the double jeopardy rule; fifthly, if the new evidence could not, with due diligence, have been adduced at the first trial; and finally, if the court is satisfied that, in all the circumstances of the case, it is in the interests of justice to quash the acquittal.

The Committee asked itself the following questions. Does the public interest in convicting the guilty outweigh the longstanding principle of double jeopardy? Does the availability of new evidence arising largely from scientific advance mean that an old and fundamental principle should be re-examined? If changes are to be made, would the proposed safeguards be sufficient to ensure that the new procedure would be used only in exceptional cases? Would a change of rule ensure that fair second trials could be held, and that people would be convicted?

The Committee took evidence in January and February this year and received 18 memorandums from civil liberty groups, lawyers and the police. We also heard oral evidence from the Director of Public Prosecutions and the chief constable of Kent on behalf of the Association of Chief Police Officers, barristers and solicitors. We had a useful and informal meeting with the Law Commission. The exercise was carried out in collaboration with the Law Commission, and we are grateful for its co-operation.

Our report was published in May this year. It was a finely balanced inquiry. It had to be for us to conclude, as we did, that a double jeopardy rule that dated back to Roman times and had been in the common law since the 19th century should be altered. It was our view that the public would not understand the notion that a suspect should be able to avoid trial on some of the most serious criminal offences even if compelling new evidence became available after a first trial and acquittal, and perhaps even after a subsequent confession.

Advances in DNA technology enable the analysis of a blood sample to demonstrate with near certainty that an acquitted person has been at the scene of the crime, even if that has been denied and could not be proved at trial. In addition, the Director of Public Prosecutions told us about advances in fingerprinting, photographic recognition, corneal and face mapping and even, unbelievably, reliable ear prints. There have also been cases in which the prime suspect was not prosecuted because of lack of evidence but was convicted years later after scientific information made the original evidence more compelling. We were referred to two particular cases—the case of the beauty in the bath and the murder of Dr. Joan Francisco. If the criminals in question had been tried and acquitted earlier, they would have remained free and guilty. We were told of at least seven press reports published in the past two years about people who, having once been acquitted of a serious offence, subsequently confessed their guilt under the safety of the current double jeopardy rule.

Mr. Desmond Browne (Kilmarnock and Loudoun)

I commend my hon. Friend and his Committee on their report, which I read with great interest. He mentioned a question that is at the heart of our discussion. Just how useful would the change be in addressing the perceived wrong? As my hon. Friend said, the Committee took evidence from the Director of Public Prosecutions. When the initial part of that evidence was heard, my hon. Friend pressed the DPP to identify from his own records or information the number of cases to which the change would be applied. He could not produce any numbers—I understand why that might have happened—and promised to write back to the Committee with information. However, there is no sign in the report that he did so. Did he write back, and, if so, what information did he provide?

Mr. Corbett

I thank my hon. Friend for that question. As far as I can remember, the DPP did not write back, although we received information via another route. From memory, I think that the chief constable of Kent, speaking on behalf of ACPO, referred to about three dozen cases in respect of which the proposed amendment of the double jeopardy rule would provide confidence that convictions could be obtained, especially in the light of DNA advances.

We were told of at least seven press reports in the past two years about people who had been acquitted but had subsequently confessed their guilt. That is precisely what offends public interest and collides with what the DPP, Mr. David Calvert-Smith, told us was an underlying principle of our legal system. He said: The whole point of a criminal justice system is to bring criminals to justice. Our views were set against the background of the common law rule that, once acquitted, a person cannot be tried again for the same offence. It is, however, worth recalling that a convicted person has the right to present fresh evidence to the Court of Appeal or to the Criminal Cases Review Commission, in order to seek to overturn the conviction. Where convictions are found to be unsafe, it is right that they should be overturned. On the other side of the coin, however, why should someone who is tried on inadequate evidence and then acquitted be protected from a second trial when compelling new evidence points to guilt? Victim Support told us: The law must be concerned to prevent Miscarriages of justice to the defendant and also to the victim.

Dr. Stephen Ladyman (South Thanet)

Is not the right way to handle such cases not to proceed to court in the first place until the Director of Public Prosecutions is relatively content that he has a strong case?

Mr. Corbett

I thank my hon. Friend for his question. If only life were that simple. However, it is not. My hon. Friend will know as well as I do that the DPP and his staff take as much care as possible when examining files containing all the evidence presented to them by the police in order to make a judgment on the likelihood of obtaining a prosecution. Those judgments are the best that can be made.

The advance in DNA technology makes it possible later on, as the years roll by, to discover evidence that was hidden at the original trial and acquittal.

Mr. Deputy Speaker

Order. From a technical point of view, it would be helpful if the hon. Gentleman would direct his remarks to the Chair, because when he turns away from the microphone the technicians must make alternative arrangements. We want to ensure that all his words are recorded.

Mr. Corbett

I am grateful to you, Mr. Deputy Speaker.

There has, understandably, been opposition to our views from the Criminal Bar Association, the Law Society and Liberty, among others, as well as a critical early-day motion tabled by my hon. Friend the Member for South Thanet (Dr. Ladyman). I shall deal directly with some of these objections.

Mr. Andrew Trollope, who chaired a Criminal Bar Association working party on the subject, told us: There is a burden on the State, which has hugely more resources than any individual, when they start the investigation, to conduct it with due diligence and not to put a person on trial until such time as they have gathered in all the evidence that they competently and properly can. That was the point made by my hon. Friend. I accept that, but, as I said a few moments ago, it fails to acknowledge that, even with due diligence, scientific advances—such as those made with DNA—can reveal evidence that was earlier hidden.

Liberty told us that the prospect of a further trial after an acquittal would cause needless anxiety and insecurity to thousands of acquitted defendants. David Calvert-Smith, the Director of Public Prosecutions, had a response to that when he said: No judge would ever allow the prosecution a second bite at the cherry to make up for police incompetence at the first trial; it would be inconceivable. In any event, the fairness of a possible second trial would have to be argued before a court, and a judge could decide in certain circumstances that that second trial could not be justified.

Dr. Ladyman

Has my hon. Friend not touched on an important point? If we step on to that slippery slope, will that not be exactly the sort of argument that comes back to us in a few years' time, when someone says, "We should have another trial, if the police were incompetent in the first place"? We might then gradually relax the double jeopardy rule until we automatically had another trial whenever we failed to obtain a conviction.

Mr. Corbett

My hon. Friend is right to raise those concerns, but he must understand, as we reflect on the report, that it is not simply a matter of the police, a few months or years down the road, deciding that they want to have another go at a case. They would have to persuade the Court of Appeal that the acquittal should be set aside, and that it would be in the public interest to bring a second prosecution. If my hon. Friend will bear with me, I shall come to the matter of so-called due diligence in just a moment.

The Law Society argued that there would be a real risk of the jury at the retrial assuming that the new evidence must be reliable and that the defendant must be guilty. Again, Mr. David Calvert-Smith was able to help. This comment, made by the director on the basis of his experience before the courts over many years, was compelling and allayed some of my worries. He said: There have been a number of very dramatic examples in recent years where trials, or retrials, ordered by the Court of Appeal have taken place in circumstances in which, had the jury read the judgement of the Court of Appeal, they would have no doubt whatever, at the start of the trial, that the defendant was guilty. But the trial has been fair because jurors do, in fact, now obey the directions of judges and focus on the evidence. Although I am not a lawyer, and do not claim to understand such matters in detail, I was interested to hear him expand on that point later. He said that during all his experience at the criminal bar, whatever background knowledge about a trial jurors take into the jury box with them, soon after the trial begins they focus on the arguments that are put to them as it unfolds.

In his early-day motion, my hon. Friend the Member for South Thanet called the recommendations "deeply flawed" and argued that they may allow some apparent injustices to be addressed in the short term but would lead to far more and far greater injustices in the long term. It is important that all views are considered during the debate, but I feel that my colleagues may have overlooked the need to prevent miscarriages of justice for victims or their families.

The Law Commission originally suggested that the exception to the double jeopardy rule should apply only to offences likely to attract sentences of at least three years. The Committee took the view that it should apply only to offences for which a life sentence was available, such as robbery, aggravated burglary, causing grievous bodily harm, supply of class A drugs, manslaughter, rape and arson.

The chairman of the Law Commission recently wrote to the Committee to say that it has revised its views in the light of the consultation exercise and considers that the exception to the double jeopardy rule should apply only to charges of murder and reckless killing, under its separate proposals on involuntary manslaughter. That may go some way to addressing my hon. Friend's concerns. The commission has not reached a firm view on the matter, and will be interested to hear hon. Members' reactions in the course of the debate.

Returning to my hon. Friend's point, the Law Commission has also modified its views on whether the quality of the original police investigation should influence the decision as to whether a second trial could be held. The original suggestion was that new evidence could not be used to justify a second trial if a reasonably competent police investigation should have turned it up in the first place. The underlying idea was that it would be unfair to try someone again on evidence that, but for police incompetence, would have been available at the earlier trial. It could be argued that giving the police a second bite of the cherry in that way would encourage them to be less diligent on the first occasion.

The Committee was persuaded by the evidence from the chief constable of Kent, on behalf of ACPO, that the procedures for police investigations are now much more rigorous than they used to be, and that the possibility of a second trial would not make the original investigation less assiduous. We therefore thought that the so-called due diligence test was not an appropriate requirement for a second trial. Paragraph 36 of our report states: If a second trial is ruled out because police incompetence had failed in the first, the only winner is the guilty. The victim or the victim's family are left doubly denied justice. The Law Commission now suggests that the diligence of the police should be taken into account but should not be an absolute requirement.

It is for those and other reasons, which will be argued by my colleagues, that the Committee came to the conclusion that there should be these narrow and specific exceptions to the general double jeopardy rule. Given the proposed safeguards, we felt that that would strike a better balance between the rights of the defendant, the rights of victims and their families and the overall interests of justice. We do not expect—and do not believe that judges would allow—such a change to be used in many cases. However, if it were used, it would bring justice to victims and their families, which is now denied.

Few, if any, proposals about criminal justice pass through the House without lively debate, and I am sure that these will be no exception. I look forward to hearing those views and the Government's initial response to them.

2.49 pm

The Minister of State, Home Office (Mr. Paul Boateng)

Like all hon. Members present, I am extremely grateful to my hon. Friend the Member for Birmingham, Erdington (Mr. Corbett) and his colleagues on the Home Affairs Select Committee for the diligent manner in which they reviewed this issue and their positive contribution to the debate. It is a welcome fact that the relatively novel procedure—in parliamentary terms—of debating in Westminster Hall enables us to visit this topic in the context of the Home Affairs Committee's report. Of course, we are grateful to the Law Commission for taking on the important task of reviewing the double jeopardy rule, and for the detailed and careful way in which it has done so.

My hon. Friend the Member for Erdington referred to Sir William Macpherson's report on the Stephen Lawrence inquiry. Sir William posed the question whether the law should provide absolute—I stress, absolute—protection for someone who has been acquitted of an offence, even if fresh and viable evidence that the acquittal was an injustice emerges after the trial. We are addressing that important question today, and I want to say a few words at the outset about our response to the inquiry report.

A lot of good work has been taken forward in the 20 months since the report was published. My right hon. Friend the Home Secretary has established, and chairs, a steering group that is tasked to audit and oversee implementation of his action plan, which will advance the recommendations in Sir William Macpherson's report. The first annual progress report indicated that more than half the 70 recommendations had already been implemented, and work is well under way on the others. We recognise the importance of maintaining that momentum, which includes consideration of the double jeopardy rule.

The Stephen Lawrence inquiry report recommended that consideration be given to empowering the court of appeal to permit prosecution after acquittal where fresh and viable evidence is presented. The Government accepted that recommendation, and my right hon. Friend the Home Secretary immediately referred the proposals to the Law Commission, so that it might review them and consideration might therefore take place. It is an important and significant area of the law, and we have made it clear that the Government will take no decisions on the merits of relaxing the law on double jeopardy until the Law Commission has made its final report, which is expected early next year. However, I welcome the opportunity to debate the issue at this stage. In reaching a decision on whether a change in the law is desirable, we believe it important that we get the law right.

I do not doubt that comments made in this Chamber, the Home Affairs Committee's response to the recommendation and the interim response to the Law Commission review will help to generate debate among the wider public. With the greatest of respect to m' learned friends, it is important that this debate is not confined simply to lawyers. We have our own traditions, interests and understandable concerns about legal developments in an area in which we practise. However, it is important that lay people should not feel in any way inhibited about making a contribution—indeed, a robust and considered contribution—to the debate. [Interruption.] I see that some are already beginning to shake their heads; I know not whether in dissent or despair.

Mr. Robert Marshall-Andrews (Medway)

I shall rise to that bait: despair is the answer. Will my right hon. Friend accept that many lawyers have a legitimate interest in the debate because we are concerned with the civil liberties of the subject, not because we are lawyers but because we are involved, day by day, in precisely that matter?

Mr. Boateng

Of course I accept that, but lay members also have concerns about civil liberties—those of victims and defendants alike. I argue only that it is important that we hear, and that lay people feel equally empowered to contribute to the debate. Those of us who are lawyers should not think that we have a monopoly of wisdom on this subject, or a monopoly of concern about civil liberties.

Mr. David Winnick (Walsall, North)

I accept that lawyers do not have a monopoly of wisdom in this, or perhaps any other, case, and with due modesty I am sure that all the lawyers here would agree. Since a point has been made about civil liberties, would my right hon. Friend bear it in mind that, when it comes to murder, the very life of a person is taken away—leaving aside the feelings of the immediate family after such a disaster? Surely the whole purpose of justice is that those who take life should face justice and be duly punished if found guilty.

Mr. Boateng

That is a view that will resonate with many—lawyers and non-lawyers—and is a legitimate point to make in a debate such as this. We shall take into account the views set out in the Select Committee report and those expressed by hon. Members in the debate.

I shall not take up much time in setting out the detailed background of our proposals. My hon. Friend the Member for Erdington has already ably covered that territory, but it is important to state that we have not reached any conclusions on the issue. I am primarily here to listen—a disappointment to some and a relief to many—rather than to express a view at this stage on the Government's behalf.

To deal briefly with the issue of principle that is at the heart of the Lawrence inquiry's proposals, the double jeopardy rule is a long-standing part of our criminal law. It dates back to the 12th century and provides that someone cannot be retried for the same offence or a different offence that is based on the same, or substantially the same, facts if he or she has previously been acquitted, or indeed convicted, of that offence. I know that there are many who have genuine concerns about the issue, on both sides of the debate. Some, I know, believe that removing that absolute protection would erode the status of an acquittal, so that trials ending in acquittal would be provisional, pending further inquiry and the discovery of new evidence. That point was ably made in an intervention on my hon. Friend the Member for Erdington.

The principle of finality for the defendant is clearly important, but there is, also, a competing principle—it was referred to by other hon. Members—which is that criminals should be brought to justice. That principle should be given careful consideration to establish whether an imbalance exists and, if so, how best it might be dealt with.

In recent years, there has rightly been concern about serious miscarriages of justice involving the wrongful conviction of defendants. Parliament has responded by reforming the procedures for reviewing appeals, with the creation of an independent Criminal Cases Review Commission. That is something that many in this Room, myself among them, long campaigned for. The commission may review cases, including new evidence that might have emerged since the trial and that might cast doubt on the safety of the conviction. Where the commission considers that there is a real possibility that the conviction might not be upheld, it has the power to refer the case to the court of criminal appeal. That court may, after reviewing the evidence, quash the conviction on the grounds that it is unsafe.

We have an extraordinary procedure for the review of criminal convictions outside the normal time limits, with the determination subject to the supervision of the appellate courts. In contrast, if a victim believes that there has been a wrongful acquittal, there is no mechanism for correcting that miscarriage. The prosecution has no right to reinstate proceedings apart from the narrow circumstances where it can be established that the conviction has been tainted as a result of jury or witness nobbling. The prosecution also has no right of appeal against judicial decisions that lead to termination of proceedings. The Government have asked the Law Commission to look at both those issues to see whether the law strikes the right balance.

It is extremely difficult for any of us who have not been there to understand the anguish that victims and their families feel when there is no satisfactory resolution to a case. We can but admire their courage and determination to seek justice. I do not know whether any other hon. Members were present, but I can well remember a meeting of victims we held in this Room. The anger, sadness and frustration of those people, many of whom had had to live through the loss of a loved one, were heart rending.

The distress can be even greater if, following an acquittal, new evidence comes to light to prove that the accused was guilty of the crime. There have been instances of criminals admitting in their memoirs to crimes for which they were acquitted and thereby profiting. Earlier this summer, my right hon. Friend the Home Secretary met the family of Julie Hogg, who was brutally murdered in 1989, to discuss this issue.

Julie's killer, Billy Dunlop, was formally acquitted of her murder in 1991 after two juries had failed to reach verdicts, but while serving a prison sentence for an unconnected assault he confessed that he had lied on oath during the earlier court proceedings and that he had murdered Julie. He pleaded guilty to perjury in April of this year but could not be retried for Julie's murder because of the double jeopardy rule. For her family, the belief that he quite literally "got away with murder" made a grievous blow even harder to bear.

That is clearly the type of case we shall want to consider in weighing the importance of the double jeopardy principle in protecting the rights of the defendant against repeated prosecutions, against the need to ensure that guilty people do not escape justice.

Dr. Ladyman

Given the case that my right hon. Friend has just outlined where someone was prosecuted for perjury, would a way of dealing with this without tampering with the double jeopardy law be to make the same sentence available for a trial for perjury where perjury was used to avoid a guilty conviction at the original trial?

Mr. Boateng

It is one way. But for the families, someone being found guilty of perjury does not have the same ring as being found guilty of murder. One should never underestimate—I am sure that as a practitioner in the courts my hon. Friend does not do so—the importance of the symbolism of the charge and a guilty verdict. We do not engage in this simply for the sake of form; we do so because words and actions carry their own power. Being guilty of murder is different from being guilty of perjury.

Mr. Winnick

If it so happened that some of those acquitted for the murder of Stephen Lawrence were charged and found guilty of perjury, and only perjury, what would Mr. and Mrs. Lawrence think about that?

Mr. Boateng

I am not sure that I would want to speculate on that. I repeat my point that for the families of victims the conviction for the charge in many instances is as important as the length of any sentence served. We are determined to ensure that greater account is taken of the interests of victims while maintaining the rights of defendants in the criminal justice system.

We are concerned not only with victims, important though they are, but with the right of the wider community to see that justice is done. With the scientific advances in DNA testing, there is increasing potential for fresh and viable evidence to emerge, which will result in retrials only if there is an exemption to the double jeopardy rule.

In response to the Home Secretary's request, the Law Commission published a detailed consultation paper last year on its proposals for changes to the double jeopardy rule. Broadly speaking, it proposed that the rule should be retained except in cases in which compelling new evidence becomes available. The Select Committee came to a similar conclusion—that there is a strong case for the relaxation of the double jeopardy rule if new evidence makes the previous acquittal unsafe. We shall take into account the Select Committee's support for reform in reaching our conclusions on the issue. I look forward to hearing the views of others during the debate.

When referring to the law on double jeopardy, my right hon. Friend the Secretary of State asked the Law Commission to consider, as part of the review, our international obligations, to ensure that any proposals for change were compatible with those obligations. The Law Commission's consultation paper helpfully set out the background to the issue, including how other criminal jurisdictions approached that difficult matter. Apart from the principle involved, the commission recognised that any changes would need to be subject to safeguards. Therefore it sought views on a number of practical issues, including what offences would be subject to the relaxed rule, whether there should be a due diligence test requiring that the new evidence could not have been adduced at the first trial had the police and prosecution shown due diligence and whether the exception to the rule should have a retrospective effect.

I am aware of anxieties that relaxation of the double jeopardy rule might result in less diligent police investigations; I note that the Select Committee, importantly, concluded that it did not expect that such changes to the law would have an adverse impact on the quality of further police investigation.

Mr. Browne

Before my right hon. Friend moves too far from the issue of our international obligations, which have been incorporated into our country's law, I ask him to consider a small point that troubles me about the proposal, as I am not entirely satisfied that the Law Commission has resolved it. It is not whether we have to retain the double jeopardy rule and allow exceptions in terms of the protocol, but whether our own courts would be in breach of article 6 of the European convention on human rights, which requires trials to be concluded within a reasonable time. That reasonable time cannot be concluded until determination, and determination must mean something; if the double jeopardy rule is not in existence potentially for any case of the nature to which my right hon. Friend refers, those cases could never be considered to be determined on one view.

Without making the intervention into a speech, I want to say that England and Wales have limited experience of the convention being in force. Scotland has longer experience and some decisions in Scotland refer to European jurisprudence on the issue. Has my right hon. Friend anything to say about that?

Mr. Boateng

We will reflect on that matter as part of our consideration of the points made by hon. Members in the debate. I would expect the Law Commission to do likewise in finalising its views on the matter.

We must ensure that police investigations are conducted efficiently and the Government will take that into account before reaching a final decision on whether there is a need to change the law.

Mr. Simon Hughes (Southwark, North and Bermondsey)

I understand that the Government have refused to ratify protocol 7 to the European convention on human rights, which specifically deals with that issue. Will the Minister explain the Government's refusal? The protocol allows a broad interpretation, so even if the Government signed it, they could still change the double jeopardy rule.

Mr. Boateng

Our action regarding protocol 7 does not relate directly to our review of the law of double jeopardy. The hon. Gentleman would be mistaken to confuse the two. We made a commitment to ratifying protocol 7 when our concern about inconsistencies in family law was addressed. I hear what the hon. Gentleman says, but he should not link our position on protocol 7 to our commissioning of a review of the law of double jeopardy. As I said, it is important not to confuse the two issues.

It is right to have a full and informed discussion of all the issues thrown up by the law of double jeopardy and of the balance that we need to strike between the rights of offenders and the rights of the victims of crime. It is right to respond not by a knee-jerk reaction to either side of the argument, but in a careful and considered way. I hope that all hon. Members will recognise that that is what underpins the Government's approach. We are enormously indebted to the Select Committee for its careful consideration of the problems and the obvious balance that it demonstrated in arriving at its conclusions.

3.12 pm

Mr. Nick Hawkins (Surrey Heath)

I begin by declaring not so much an interest in the parliamentary sense, as a background, as I practised at the Bar for several years and took some criminal cases, albeit not so many and not at so senior a level as the hon. and learned Member for Medway (Mr. Marshall-Andrews), who will doubtless speak later. During my legal career before I entered the House, I was heavily involved in the Bar Council and, during my parliamentary career, I spent some time in the inner cabinet, the general management committee of the Bar Council.

Unusually for a Member of Parliament, both my parents were research scientists. Neither was involved in forensic science. However, as I read the report produced by the hon. Member for Birmingham, Erdington (Mr. Corbett) and the Select Committee on Home Affairs, I observed that, if the double jeopardy rule were changed, courts could have the opportunity to consider fresh scientific evidence that was unavailable at the time of the original trial. I find myself pulled to some extent in two different directions. As a member of the Bar, I am influenced by the length of time during which the double jeopardy rule has been sacrosanct in English law; but in view of the importance of forensic scientific evidence, I am more inclined to think that for the protection of victims and their families, the rule needs to be examined again.

I also served on the Home Affairs Committee before I was appointed to my current Front-Bench position. I thoroughly enjoyed my time on that Committee. Subsequently, when the hon. Member for Sunderland, South (Mr. Mullin) became a Minister, I was delighted that the hon. Member for Erdington was appointed as the new Chairman of the Committee. The way in which he introduced today's debate typifies the reasons why members of all parties who served on the Committee felt that he would be a good Chairman. When I practised at the Bar in the midlands, my main chambers were in Birmingham, and I remember the hon. Gentleman's good reputation as a constituency Member of Parliament. I also know of his long-standing interest in issues such as the double jeopardy rule. Without wishing to sound sycophantic, I pay tribute to him for the careful way in which he introduced the debate. It shows that the House of Commons may be at its best when discussing sensitive issues on which the judgments are finely balanced.

Members of all the main parties and perhaps of all the parties in the House take different views on the issue, for perfectly honourable reasons. It is with some hesitation, therefore, that I advance what is not only my view but that of the official Opposition. I anticipate that the hon. and learned Member for Medway will come down on a different side of the argument. I also hesitate because I know that the Criminal Bar Association opposes my view, and that of the Select Committee, that a modest change should be made in the double jeopardy rule. I have read with great care the submissions made to the Committee by those who gave evidence from the CBA and the Law Society. One is always hesitant about issues on which the arguments are finely balanced.

The official Opposition decided some time ago that we agreed with the Law Commission that the issue needed to be reconsidered and that change might be needed. We did so for many of the reasons given in the Select Committee's report. However, I stress that the official Opposition had stated their position before the Committee produced its report. I do not want people to suggest that we are simply responding to the report. I gave several radio interviews on the subject, along with Government Members who take a different view from the Committee, before it reported.

Like the Government, the Opposition will want to consider carefully the views of the Law Commission in its final report. We very much welcome what the Home Affairs Committee has said on this difficult issue. The evidence sessions were obviously undertaken with great care. Many difficult issues were canvassed and discussed at length by members of the Committee, who asked detailed and probing questions of the witnesses who appeared before them.

I agree with the Minister that both Government and Opposition must consider the matter afresh when the Law Commission produces its final report, because it may have new things to say. It will doubtless consider the Select Committee's report. Like the Minister and the hon. Member for Erdington, I recognise the strongly held views such as those held by the hon. Member for South Thanet (Dr. Ladyman), which he expressed in his early-day motion. He is entitled to his view; the arguments are closely balanced.

The witnesses from the CBA and the Law Society who appeared before the Select Committee raised issues such as the way in which juries might be influenced and the possible need to consider additional safeguards. The Law Commission might make further recommendations, possibly including the extra safeguard of consulting the Law Officers. When I read that passage in the evidence, I was reminded of the provisions introduced when we were in governmentߞwhich have been supported and extended by the current Government—about involving the Law Officers in appeals against over-lenient sentences. That matter may need to be reconsidered after the commission produces its final report.

On balance, most members of the public are concerned that our criminal justice system should convict and properly punish those who are guilty. It is a truism, in parliamentary debate and in law, that it is better for guilty people to be acquitted, sometimes in the teeth of the evidence, than for innocent people to be convicted. Despite that truism, it is undoubtedly in the public interest for those who are guilty to be convicted of the crimes of which they are guilty. The public are hugely concerned by cases in which it is clear from the appearance of new evidence that could not have been available at the time of the original trial that someone who was guilty got away with it. In that regard, I would have mentioned the poignant Hogg and Dunlop case, had the Minister not rightly done so. There is a huge difference between being convicted of murder at the original trial and being convicted of perjury following a subsequent confession. That case brings into sharp focus the reasons why we are now forming judgments about those finely balanced questions and deciding whether there should be a change in the law.

The fact that there is now so much more use of forensic scientific evidence in our courts and that there are so many opportunities for new evidence to be brought to light as a result of scientific advances, strengthens the case for reform. When the Select Committee was questioning witnesses, it looked particularly at matters to do with scientific developments of DNA testing and there was a great deal of arcane and technical discussion about the way in which eye and ear prints might in future be used in evidence. That is still a developing area.

In parenthesis, I mention a matter that is not vital to the debate but I feel is important. On reading the Select Committee report I was reminded of how often the media misuse the word "forensic". Most commentators suppose that "forensic" has something to do with science because they come across it only in regard to the courts but, as we all know, the correct term is "forensic scientific evidence". The term "forensic evidence" alone, as journalists so often use it, does not convey anything because it means simply something that relates to the court. If only one thing comes out of our debate, it may be the understanding that we are talking about forensic scientific evidence.

Having made that perhaps pedantic point, I return to the main issue. We shall continue to debate the issues, probably over months and perhaps years. I do not know whether other hon. Members will have a clearer idea than I of when the Law Commission will finally report, but whenever it does the House will have to return to the matter. I hope that in future such debates, on a sensitive and important topic, will take place in the main Chamber. The hon. Member for Erdington said that it was the first time that he had spoken in Westminster Hall and that he was enjoying the experience. I am not myself a supporter of the experiment of the new parallel Chamber, as I have made clear privately and publicly. Time will tell whether it survives. Whatever the case, hon. Members on all sides will have to search their conscience, look at the evidence on both sides of those finely balanced arguments and reach a conclusion. As I said earlier, the House of Commons as a whole is often at its best when thoughtfully debating moral, philosophical and legal questions.

Mr. Simon Hughes

I agree that we should consider both general principles and detailed evidence. Could the hon. Gentleman tell me why his party leader and his party took a committed position on the issue, before the Law Commission had finished its consultation and before the Home Affairs Committee had published its report? That absolutely contradicts the spirit of what the hon. Gentleman is saying and the logic of having a considered rather than a knee-jerk response to a difficult issue.

Mr. Hawkins

It is interesting that the hon. Gentleman confirms my point that we were not responding simply to the Select Committee or to the Law Commission. I suspect that, if we had made our position clear only after the publication of those reports, we would have been accused of jumping on a bandwagon. The hon. Gentleman cannot have it both ways, although that is an approach with which we are familiar from his party.

The hon. Gentleman did, however, make an important point. He asked whether we had thought the matter through. Having heard my remarks, I hope that he will accept that my colleagues and I had thought carefully about the issues at the time the Law Commission and the Select Committee were working on them. Like me, he knows that double jeopardy and related matters have been considered for some years by lawyers and especially by legal academics. It was the Macpherson inquiry report on the tragic murder of Stephen Lawrence that brought the matter into sharper focus and into general public debate. My colleagues and I had been personally and professionally interested in these issues for a number of years. It is, therefore, a misconception to suggest that we were wrong to set out a position once the matter entered into the public domain after the publication of the Macpherson report. As I said, I think that the hon. Gentleman would have taken a different tack if we had waited until the report's publication before announcing our position, although that is perhaps a matter for merely partisan debate.

Mr. Hughes

I follow that argument, but I still find it difficult to understand why a party takes a position, to which it will presumably hold—

Mr. Corbett

Not necessarily.

Mr. Hughes

The presumption is that it will hold to its view. I find it difficult to understand why a party took its position on an issue such as this at a time when a considered recommendation was about to be made. Indeed, it was to be made in the following year and, in all likelihood, before a general election. Of course, it may finally differ from the position of the hon. Gentleman's party. Are his party and party leader open to changing their position in the light of the Law Commission's final view?

Mr. Hawkins

Any political party always has to consider the evidence before it. As the Minister said, the Government party will wait for the Law Commission recommendations before announcing its concluded view. Personally, however, I see no prospect of a change in our position, as we feel that we have considered all the difficult and sensitive issues at stake. That does not mean to say that we will not respond to any new points that are made by the Law Commission in its final report. The hon. Gentleman's party is known not merely nationally but internationally for arguing one position in one constituency and another position, 360 deg or 180 deg the other way round, in a neighbouring one whenever it suits it to do so. It is, therefore, a bit rich for the hon. Gentleman to talk about consistency.

As I said, despite my great interest in the issue under discussion, I must apologise to you, Mr. Deputy Speaker, to the Minister and to other hon. Members. I may have to leave a little before the debate ends because of another commitment. I would not usually leave a debate of such importance, but I undertake to read all the speeches with great care. I can only apologise for the fact that I may have to leave early, for reasons of which you, Mr. Deputy Speaker, and the Minister are aware.

It behoves us all to consider the difficult cases that are bound to arise during the next few months and years from the review of double jeopardy, and to examine carefully the Law Commission's final report. We must take a decision, as we are elected by our constituents exactly to take decisions such as this. We will not all agree and there will be differences within the parties. My view and that of the Opposition is that there is now a strong set of reasons for minor changes, with a number of safeguards and affecting a tiny number of cases. That is why the Select Committee was right in its conclusion. I once again commend it for its thorough piece of work.

Several hon. Members

rose—

Mr. Deputy Speaker (Mr. John McWilliam)

Order. A large number of hon. Members want to speak in the debate. If we are to fit them all in and have time for the Minister's reply, I advise them to be as brief as they can, given the importance of the subject.

3.29 pm

Mr. Simon Hughes (Southwark, North and Bermondsey)

I, too, welcome the debate, especially in the context of having the opportunity to debate Select Committee reports at this stage. I thank the Chairman of the Select Committee and his colleagues for taking a timely issue, dealing with it thoroughly and calling eminent and appropriate people to give evidence. I also thank them for their report. I include in that context my hon. Friend the Member for Colchester (Mr. Russell), who has just joined us in the Chamber.

In general terms, I shall take the same line as the Minister, in that we have taken the view that we should wait for the Law Commission to complete its work before reaching our final conclusion. It would prejudice our party's consideration and our final conclusion if I were suddenly to announce, here and now, that I was critical of the leader of the Conservative party at the time of that announcement, for just that reason. That is why I made the point a minute ago. The Government were right to say that they have set the process in train, and that they will ask the relevant people—including the Select Committee on Home Affairs—to give them advice, which they will weigh up.

The Law Commission itself has asked for others to give advice. The Home Affairs Committee—as the Chairman clearly pointed out—rightly produced a report with a different expected sequence of events, given the context. Therefore, the right process is for us to hold this debate, and for the Law Commission to finish its work—I understand, as does the Minister, that it will do so early in the new year—after which hon. Members will formally come to a view. My hon. Friend the Member for Colchester, like all members of the Committee, is free to form a view as a Committee member, and he endorsed the view of the Select Committee. One can entirely understand where the Select Committee's views came from.

I shall heed your request for brevity, Mr. Deputy Speaker, and I just want to make a few points that relate to the debate. First, I start from the principle that there needs to be an overwhelming reason for change. The case must be made on extremely good grounds, and we must work on the basis that any change would be made only as necessary and sufficient to accommodate the concerns that exist. In other words, it would probably involve a small exception to a general rule, instead of ranging more widely. That is the tenor of the Select Committee report.

Secondly, I declare that I would need to be persuaded. I do not have a closed mind on the issue. There are arguments on both sides. I do not come to the debate with a fixed position on the subject. I am not being secretive with colleagues or other hon. Members and saying that, whatever happens, I know what I am going to say at the end of the debate. I do not come to it with that view, and I hope that that is an honest position to adopt.

Thirdly, although it is important that we respond to the Macpherson report's request that this issue be examined—the only official request that has been made, as I understand it—that should not make the case for change. As a south-east London Member of Parliament who sat in on the Macpherson inquiry on occasions, and who has met Doreen and Neville Lawrence and knows their lawyer, I understand exactly their motivation. However, one needs more than one bad case, one unsatisfactory resolution, to shift the burden. That case, therefore, raises an issue for me but does not answer it.

The Select Committee report mentions, and the Law Commission also alludes to the fact, that other matters under consideration are linked to this issue. I think that it is wrong to separate them. The Director of Public Prosecutions expressed concern in the last answer of his oral evidence to the Select Committee that if the Government, the Law Commission and the Select Committee linked the consideration of this issue with the consideration of prosecution appeals against judges' decisions, it might unnecessarily delay the whole process. In my view, those are linked issues, and there should be a conclusion that links them together. They should be considered together, because they are both procedural matters concerning the way in which the criminal justice system deals with what are perceived to be wrong decisions along the route. It would be wrong to legislate on one without the other.

I know that Sir Robin Auld has been asked by the Government to review the criminal justice system, and I understand that he is on target to complete his work by the end of the year, after which a significant report will be published. In the interests of good law and good consideration of changes in legal and criminal procedure, all such matters should be considered in the round. That is partly why many of us, like the hon. and learned Member for Medway (Mr. Marshall-Andrews), felt strongly—regardless of any other objections—that there should be no change in the right to choose jury trial. The whole area was shortly to be examined, and it appeared to us that it would be wrong to deal with one issue out of context.

We need to know that our laws are compatible with our wider international obligations, and the decision must be taken in the context of the international covenant on civil and political rights and of the European convention on human rights. That is why I asked the Minister about article 4 of the seventh protocol, which relates precisely to this issue. I believe that Finland is the only European Union country that has an exception to double jeopardy. I happened to be there recently, and forgot to ask, but that could easily be confirmed by speaking to people at the embassy. Before concluding our consideration of the issue, we should have the facts about the law in other EU countries and traditional common law jurisdictions, because one can learn and profit from other experiences.

In that context, I was surprised that the Committee did not consider the fact that just over the border to the north of us there is a different criminal law system, which allows three verdicts instead of two—Scotland has the "not proven" verdict. I am not about to make a speech in favour of that option. However, there may be an argument for considering a return to a prosecution only where the previous case concluded, as is allowed under Scottish law, with a "not proven" verdict. Scottish law has had that option for centuries. Although it is sometimes criticised—it allows a cloud to hang over the person on trial—there is no strong view that it should be changed.

Mr. Boateng

Can the hon. Gentleman recall when that verdict was last delivered in Scotland?

Mr. Deputy Speaker

Order. I suggest that the hon. Gentleman be careful: I am a Scottish justice of the peace.

Mr. Hughes

I asked a Scottish colleague in the House of Lords who is involved in the criminal justice process about that today, and he told me that "not proven" verdicts are delivered several times a year.

I suppose that, like other hon. Members, I should have declared my interests. I am a trained lawyer. The only other relevant information is that I have an ancestor whose first case was a famous murder trial in Edinburgh that resulted in a "not proven" verdict. It happens fairly frequently, and we should consider whether it is relevant to the debate.

Mr. Paul Stinchcombe (Wellingborough)

Does the hon. Gentleman accept that the principal argument in favour of relaxation is the cogency of new evidence, not the doubts arising from the first trial?

Mr. Hughes

I do accept that. That case was well made in the Committee's report and recommendations. I should like to make three final points.

First, I understand the point that was made by the Committee and the Director of Public Prosecutions that one objective of our criminal justice system is to ensure that people who are guilty are convicted, and that one of the perceived failures of the system is that victims sometimes do not receive a fair outcome. Those of us with a background in criminal law have a duty to defend the liberty of the subject and the accused, but the interest of the victim is also an issue. There is sometimes grief and complaint about the system when there is a clear victim and an unanswered question. The Lawrence case is a good example because, clearly, someone or some people committed that terrible crime.

Dr. Ladyman

As a Member with legal training who has carefully studied the Stephen Lawrence case, will the hon. Gentleman suggest whether the Committee's recommendation would have the slightest bearing on the Stephen Lawrence case? My reading of that case, based on the inquiry, is that the strictures recommended by the Committee would not allow it to be reconsidered.

Mr. Hughes

I am cautious about moving on to that ground because, as the hon. Gentleman will be aware, the police are considering whether any further action can be taken. We are free to comment, but they have not proceeded with another charge and I prefer to leave them to complete their work. I am conscious that the Select Committee's recommendations are not the final word and I hope that the Law Commission is mindful that a live issue concerning justice exists in the Stephen Lawrence case. I have an answer, but I prefer not to comment because I do not want it to be misinterpreted or quoted in part.

The second issue concerning the balance of interest is that we must not forget our duty to ensure that the wrongly accused also have a chance of rehabilitation. We believe in the rehabilitation of people who are properly accused and convicted, but the rehabilitation of those who are wrongly accused is equally important. If there is always the prospect of returning to a case, the possibility of a retrial in a serious case would not facilitate a sense of completeness in the criminal justice system.

My final point is that it was interesting, but surprising, that the Law Commission started by suggesting that offences that might result in a sentence as relatively low in the tariff of seriousness as three years' imprisonment should be the threshold. A three-year prison sentence is not laid down in law—it is merely a choice given by the court from a range of sentences—and does not suggest a degree of seriousness to many people. If the Law Commission is to make a recommendation, I strongly urge it to move in the direction in which I believe that it and the Select Committee are moving, and to recommend that only the most serious offences be included, so that cases of homicide are the most likely to be reopened. I am not saying that to prejudge the view of the Liberal Democrats, but we should not open the box and allow prosecution of a wide range of offences with a wide range of tariffs. The reopening of a case should be an extremely rare exception and the criteria should be laid down and approved only with extreme thoroughness and in rare circumstances.

I end as I began. My hon. Friend the Member for Colchester and I will listen to the voices here, and when the Law Commission has produced its report we shall give it proper consideration and come up with a clear view—hopefully before the general election—on whether the law should be changed.

3.44 pm

Mr. David Winnick (Walsall, North)

May I express the hope that this sort of debate on the double jeopardy rule will continue in other places? The hon. Member for Surrey Heath (Mr. Hawkins) said that he hoped that such a debate could be held in the House. However, in my humble view, it would be a nightmare if it took place during Prime Minister's questions or Home Office questions with the two sides clashing bitterly on whether the rule should be changed.

I do not want to give the wrong impression. I am someone who, when necessary, enjoys being controversial in the House. However, there are subjects that require calmness and a good deal of reflection, and this is one of them. A party battle will not serve the cause of justice.

I am in favour of a change, but I recognise some possible drawbacks. I have no illusions on that score. As the report states, there is a danger that where someone is acquitted, the police will conclude that the court took the wrong decision and continue to pursue that person. Let us consider high-profile cases from some time ago that involved miscarriages of justice. What would have happened in the 1970s if the Birmingham Six and the Guildford Four had been acquitted? Here I am putting the opposite view to mine, but it must be taken into account. Given the circumstances, there is perhaps more than a possibility that the police force involved would have decided that the men were clearly guilty and the court was wrong. If the double jeopardy rule had not existed, they may have wished to pursue the matter. Of course, whether they would have been covered by the safeguards recommended by the Law Commission and us is another matter.

I am simply pointing out that, as someone who is in favour of a change, I recognise some of the drawbacks. As we know, some argue that an acquittal is an acquittal and that should be the end of it. However, in cases involving murder, if compelling new evidence comes along—I emphasise the words "compelling new evidence"—the law should surely allow a process that could enable a person to be tried again for the same offence.

No court, let alone one that is trying a case involving the taking of life, should be seen simply as a test of the relative skills of the prosecution and defence. Above all, this is a question of justice, as previous hon. Members have emphasised, not least my hon. Friend the Member for Birmingham, Erdington (Mr. Corbett), the Chairman of the Home Affairs Committee. Those who have committed the most serious offences of all should not be allowed to get away with it. That is why, speaking as a non-lawyer, I have to a large extent changed my mind in recent years about the double jeopardy rule.

Victim Support says that it is important to victims and their immediate families that justice should be done. One can well understand that view, which Victim Support has strongly upheld and submitted to the Home Affairs Committee. However, perhaps understandably, the National Association for the Care and Resettlement of Offenders argues against a change. In a submission that refers to the original Law Commission report, it concludes: However, we would oppose any further extension of exceptions to the rule…unless more effective safeguards can be devised than those currently proposed. It is interesting to note that, although NACRO opposes change, it does not completely and dogmatically rule it out. It opposes change unless more effective safeguards can be devised and I agree that there should be essential safeguards.

In considering any proposed change to the rule, it is important to take note of paragraph 45 of our report. The police and the prosecution authorities alone should not be able to charge a person who has been acquitted. There would have to be a clear process involving the High Court, which would have to decide whether the original acquittal should be taken into account. The prosecution would have to show that the new evidence had not been available at the first trial. A defendant would be able to argue, obviously through his lawyer, that it would be unfair to try him again. The prosecution would have to show that it was highly probable, or that the court was sure, that a jury would convict at a second hearing, and the procedure could be used only once for a second trial, not indefinitely.

Mr. Marshall-Andrews

My hon. Friend has touched on the matter that caused me most concern about the report, in which I know he played a considerable part. I am concerned about the burden on the prosecution, when an application is to be made to the Court of Appeal or to the High Court—whichever it is to be—as to the level at which the court may predicate its decision. Is it to be a matter of a probability or certainty of conviction in the mind of the court, or, as the Committee appears to have concluded, of the original acquittal being unsafe? I do not understand what that means. Because of the burden of proof, it is possible to say that a very large number of acquittals are unsafe, if one applies that straightforward test.

Mr. Winnick

I appreciate the manner of my hon. and learned Friend's intervention. Obviously, as a distinguished QC he will no doubt, if he catches your eye, Mr. Deputy Speaker, address the Committee.

Mr. Deputy Speaker

Order. This is not a Committee, but a sitting of a Chamber of the House. I can assure the hon. and learned Member for Medway (Mr. Marshall-Andrews) that he will catch my eye next.

Mr. Winnick

On the first point I am corrected, and the second will be of great interest to my hon. and learned Friend. I apologise for my reference to the Committee. All that I can say to my hon. and learned Friend in answer to his question is that there is little that I can add to what is set out in the report. It is very clear. I see that the Chairman of the Select Committee, my hon. Friend the Member for Erdington suggests that I draw my hon. Friend's attention to paragraph 41, which states: we conclude that the test to be applied by the High Court should be whether the new evidence makes the previous acquittal unsafe, thus putting the emphasis on the past acquittal rather than appearing to prejudge any future second trial. My right hon. Friend the Minister referred to a case in which the person concerned admitted responsibility for the murder. That, of course, is interesting, but I want to refer to another case, in which the relevant person was not tried at the time of the murder. In The Times of 30 September there is a report of Ian Lowther being convicted of a murder that took place 23 years ago. He confessed and has been sentenced to life imprisonment. To critics who argue that there should be no change in the law I ask what would have happened if he had been tried at the time of the murder in 1977. He had been questioned several times by the police, but the evidence had not been sufficient to bring him to court.

If he had been tried and acquitted, it would not have been possible to bring him to court later. He was brought to court as a result of DNA testing, which showed that it would have been almost impossible for him not to be responsible for the murder. I accept that if all the advances that have been made in DNA testing had been available, it is quite likely that his guilt would have been discovered at the time. However, if it had not, there would have been no way to convict him, because it would not be possible to charge him again. That aspect of the matter is much in my mind.

Dr. Ladyman

Does my hon. Friend agree that if the double jeopardy law had been relaxed 23 years ago, the prosecution would have been tempted to bring the case to trial before there was sufficient evidence to secure a conviction in the knowledge that, if better evidence appeared later, it could have another stab at the case?

Mr. Winnick

That is one view. I have already mentioned the Birmingham Six and the Guildford Four, but one hopes that the police have changed somewhat in the past quarter of a century and do not work on the same cynical basis. My hon. Friend is saying that, if the law were changed, the police would not need to worry too much about certain cases because an acquitted person could be tried at least once again later. I ask him to take note of paragraph 45, which outlines the important safeguards that the High Court must take into account before deciding that new evidence is so compelling as to require an acquitted person to face the court again.

Mr. Corbett

Will my hon. Friend also confirm that it is not even simply a matter of the police and Crown Prosecution Service believing that they have evidence that is more compelling than at the time of the initial trial? As well as that, the High Court has to be persuaded that a particular case can be retried fairly.

Mr. Winnick

Yes, indeed. My hon. Friend makes a valid point.

The murdered person, Mary Gregson, left behind a husband and one child, but her husband died of a heart attack four years after his wife's murder. Her parents did not live to see the killer charged and sentenced. I do not make these points to stir up emotion. We often talk about rights and civil liberties—the very reason we have a Parliament—but we should never forget the rights and liberties that have been taken away from murder victims. My hon. Friends who disagree with changing the rule would surely not disagree with that.

There has been a more recent case of rape, which I wish to draw to the House's attention. It implies a weakening of sorts in the double jeopardy rule. The serial rapist had twice been convicted of rape and acquitted no fewer than five times. On all those occasions, he was defended by the same lawyer. I make no criticism of that lawyer, who was doubtless carrying out his duties—[Interruption.] It was certainly not my hon. and learned Friend the Member for Medway, who need not feel embarrassed.

I repeat that this person had been twice convicted of rape and acquitted no fewer than five times. On the last occasion, the jury were told of his history. That was not allowed until recently on the basis that it would prejudice the trial. The entire history of the accused would otherwise have been unknown to the jury. The Law Lords whether the history should be given to the jury in this particular case, and considered that it should. That is not a direct breach of the double jeopardy rule, because the person was being charged with a new offence with which he had not been charged previously. It nevertheless represents a weakening of the double jeopardy rule to the extent that the jury was told of previous convictions. Was it not right to tell the jury? Was it not right that justice was done—the accused found guilty and sentenced to life imprisonment?

Although we recognise the strength of our laws, including the double jeopardy rule, it is important not to be dogmatic. We should not be such purists that we cannot recognise the need for flexibility and change while at the same time recognising that safeguards are essential.

Justice is all important. There is an onus on the defenders of the status quo for the double jeopardy rule to show that justice would be maintained in the sort of cases that the Minister and I have mentioned if the rule were to go. Although I am in favour of the change to the rule, any such change should be on limited grounds with all the safeguards that the Home Affairs Committee pointed out and which were included in the revised letter from the Law Commission to the Select Committee. If those safeguards are applied, there is a good case for changing the double jeopardy rule.

4 pm

Mr. Robert Marshall-Andrews Medway

May I immediately declare an interest? In my time at the bar—which is far too long—I have prosecuted and defended in many of the cases that were envisaged by the Committee and, indeed, in many murder trials. Were this proposal to become legislation I have not the slightest doubt that there would be a significant increase in the work going to my brethren at the bar, resulting in their enrichment. For that reason and others, I oppose it.

There is a fundamental flaw in the approach that the Law Commission took and the Committee then adopted. It lies in the nature of our criminal justice system, which is ancient and eccentric. It is based on trial by battle. It is an adversarial system. Indeed, in mediaeval times it was exactly that: trial by battle. One side hired a thug, the other side hired another thug and they fought it out in an arena. God decided who would win ultimately.

Mr. Corbett

It has not changed then.

Mr. Marshall-Andrews

We can immediately see the shadows of our present system. Thugs have been replaced by barristers and God has been replaced by the jury, but the essential elements of the adversarial system remain. We do not have an inquisition. As a result we are concerned not with truth, but with proof. That has always been the basis of our system. It has imperfections. Systems, such as the French one, which are concerned with the discovery of truth, appoint independent magistrates who are employed precisely to ascertain what occurred. We do not have that.

Our system is based on the state proving the case. As a result, a grossly disproportionate strength is immediately observable; the strength of the prosecution compared with that of the defence. It is a completely outweighed contest. We have always sought to redress the balance by a number of rules within our system, of which the most important is the burden and the standard of proof: the prosecution must prove its case. Thus a jury that goes out and considers its verdict and comes to the conclusion that there is the probability of guilt must acquit.

That is the nature of our system. I know that many people find that distressing, especially victims. Often in criminal cases it is clear that there is the probability of guilt, but the adversarial system drives the jury irrevocably towards acquittal. The adversarial system is not between victim and defendant but between state and defendant. The victim in our system has abnegated his right to bring a trial. He can do so in a private prosecution as happened in the Lawrence case, but generally he abnegates that right to the state, which may falter and get it wrong. That is the system in which we operate, and because of that imbalance in power, checks and balances are needed for the defendant. The first of those checks and balances after the burden of proof is finality. Finality is needed because the prosecution—the investigation of crime—is carried out not by independent magistrates, not in a search for the truth, but by the police. The power of the police in the investigation of criminal offences is stronger here than it is in any other country in Europe. For that reason, it is essential that that power is constrained and the constraint is finality.

I have prosecuted with fine police forces, with serious crime and serious fraud squads and the like, and I know that finality is essential. Every time a decision is taken, either by the police or by those who advise them, about whether cases should be brought, the first and most simple element in that decision is, "If we get it wrong this time, that is the end of it, and we cannot come back."

Mr. Martin Linton (Battersea)

What would my hon. and learned Friend say to the victim of rape whose assailant was acquitted because the jury did not think it was beyond reasonable doubt, who hears the rapist bragging in the local pub that he committed the rape and got away with it? What kind of system does not enable such a person, having confessed to the crime, to be prosecuted?

Mr. Marshall-Andrews

I thought that I had explained that to my hon. Friend. I can tell him that there are very few such instances, but they are, of course, reprehensible, and represent a weakness in our system. However, for every weakness in a system, there is a corresponding strength. It is not the recommendation of the Law Commission or of the Select Committee that someone who brags about a crime may, for that reason, be brought back and tried again. What is being talked about is evidence, and evidence of a confession in the circumstances described by my hon. Friend would be most unlikely to afford a ground in the way proposed.

Mr. Winnick

Probably, such a change in the law would be confined to murder even if there were compelling new evidence. However, my hon. Friend the Member for Battersea (Mr. Linton) has answered the point in his example. What sort of justice can it be for the victim if the rapist is not convicted of the crime that he has committed? What about the case mentioned by the Minister, in which the double jeopardy rule applied, or the case that I mentioned, in which, despite the evidence that came to light after 20 years, if the accused had been acquitted at the time he could not have been charged with the murder of Mary Gregson?

Mr. Marshall-Andrews

I take my hon. Friend's point and that made by my hon. Friend the Member for Battersea, but no system devised by man could ensure perfection on conviction or acquittal.

The Law Commission and the Select Committee recommend that if someone is retried as the result of the abolition of the double jeopardy rule and then acquitted that will be the end of it. A trial can be held no more than twice; the case cannot go on and on. That seems reasonable enough, but what happens after the second acquittal if the accused goes into a pub and boasts that he was guilty? Perfection has not been achieved, but we are not aiming at perfection; we are aiming at a system of justice that balances the state against the individual, not the victim against the individual.

I respect absolutely what the Select Committee said, but that is where its argument is flawed. At the beginning of paragraph 36, the Committee states that the purpose of the exercise— the exercise is the trial procedure— is to convict the guilty With respect to the draftsmen, that is patently wrong; the purpose of the trial procedure is to prove guilt. It is the purpose of the investigation procedure to convict the guilty, and it is the division between those two parts of our criminal justice system that is being ignored.

I have taken too much time already, so I shall confine my comments to two matters. First, on the seriousness of the cases that could be retried, I understand that murder or the worst types of manslaughter are now, in the view of the Law Commission, the only offences that should be reconsidered. At first, that seems attractive, but murder is not necessarily the most serious crime on the statute book. I have prosecuted and convicted murderers, and the most obvious examples to cite are cases of mercy killing compared with other cases such as that of a human being who was systematically tortured for several weeks and left with severe mental and physical incapacity. Taking those two cases side by side, there is no doubt which, in the public mind, would be the more serious offence. If the double jeopardy rule is relaxed, its application to any case except murder will prove to be not a lock on the door but a wedge.

The second matter is that of DNA, which is the most attractive argument for relaxing the double jeopardy rule.

Mr. Linton

Does not my hon. and learned Friend accept that in cases of scientific advance or religious conversion a second trial should be allowed?

Mr. Marshall-Andrews

I shall come to that in a moment. DNA causes me the most concern because it is probably the finest weapon that has ever been devised in the investigation and proof of serious crime, particularly crimes of violence. What causes me, none the less, to maintain my opposition to the proposal is that making the operation of the statute retrospective would be abhorrent to all criminal concepts, and probably contrary to the convention. Crime investigated now has the full benefits of DNA; in serious crime, DNA is always employed. In those circumstances, the problem is avoided.

Mr. Stinchcombe

Is my hon. and learned Friend aware that the Law Commission suggests that DNA evidence should be applied retrospectively?

Mr. Marshall-Andrews

I had hoped not to indulge in another argument. It seems to me transparent that it would contravene the convention if such retrospective evidence were applied, and it would be a major departure in criminal statutes. However, that is another argument. Even if it were applied retrospectively, as DNA has been an active tool of investigation for so long, the likelihood is that the number of cases involved would be very small.

4.14 pm

Mr. Martin Linton (Battersea)

I spent this morning at the Court of Appeal, which finally heard the case of one of my constituents, Richard Mulcahy, who has already spent three years and four months in prison for a robbery that he did not commit. The appeal lasted all of three seconds. As the barrister got to his feet, the judge said, "No need to trouble you any further," and read out the judgment. Counsel for the Criminal Cases Review Commission said that if the evidence available now had been known before the trial, a prosecution would never have taken place. Fingerprints were found on a bin bag in the shop where the robbery took place, and now, three years and four months later, the police are sure that they have a strong case that those fingerprints belong to somebody else. My constituent has now been released. I am happy about that result, as I am happy when any miscarriage of justice is overturned.

However, surely the same considerations that apply to wrongful convictions should also apply to wrongful acquittals. Many people in the legal system appear to be less concerned about wrongful acquittals. There is an old saying that convicting one innocent person is more serious than allowing 10 guilty people to go free. That is an unbalanced approach to justice, which assumes that there is no injured party when there is a wrongful acquittal. A rape victim who knows the person who committed the rape, but is unable to convince a jury, will live the rest of their life in fear because the person remains at liberty and may repeat the crime. When new evidence becomes available—if we are not to take an extraordinarily cavalier attitude to the rights of victims—it is just as much a question of justice that such a person should be dealt with as it is that a person in a case such as that of my constituent, who was wrongfully convicted and spent three years in jail, should be allowed to go free when the case against him or her is demolished.

This is not a question of a difference between lawyers and non-lawyers. Much of the pressure for change has come from lawyers—not only from the Law Commission, but from many eminent academic lawyers. The Committee's report quotes the Society of Public Teachers of Law, which has referred to the growing recognition of the interests of victims within the criminal justice system given that the present rules are arguably too absolute in favour of the defendant. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) may find that point of view too difficult to stomach, but I remind him that it is held by academic lawyers.

Mr. Marshall-Andrews

Will my hon. Friend address the point that there is an imbalance in our system, in that it is based on the prosecution being brought by the state and the defendant being defended by the defence? Are we to move towards a victim-led system—of which Islamic law is one example—in which the victim may dictate not only the prosecution, but, if they wish, on the payment of money, whether there should be a withdrawal of the prosecution; or is it right that the state should make such decisions?

Mr. Linton

I always listen with interest to my hon. and learned Friend speaking on legal matters: he knows the criminal justice and legal system far better than I. As I understand it, the burden of proof is the essential safeguard that is built into the legal system to allow for the superior resources of the prosecution against the defence. That is a very high standard to meet. In police disciplinary cases, for instance, the burden of proof has sometimes been felt to be too high. It is right that in court cases there should be a higher standard of proof—that is the safeguard.

Having the double jeopardy rule as a second safeguard is illogical. It has also given rise to a distasteful development: people who brag about their past offences in the belief that they are beyond punishment.

Mr. Winnick

Will the hon. Gentleman give way?

Mr. Linton

In a moment, but I should like to develop my point first.

There are now kill-and-tell memoirs, as opposed to kiss-and-tell memoirs, in which criminals not only boast of their activities but make money out of their crimes, which are often murders. One such best-selling author is known as Dodgy Dave Courtney. He was one of the Kray twins' enforcers and has admitted to a murder of which he was acquitted. Roy "Pretty Boy" Shaw described in his biography, which sold well, how he had killed a man with his bare hands. Mad Frank Fraser, a torturer working for the Richardson gang when it ruled south London's gangland, similarly described murders that he had committed.

Mr. Marshall-Andrews

They were convicted.

Mr. Linton

There were other murders as well. Kray henchman, Freddie Foreman, described on television how he had murdered Frank Mitchell, the mad axeman—they are all called "mad"—and fed his body to fish in the North sea. He and the Krays were acquitted of that murder. Perhaps the most famous case is that of Ronnie Knight, whom a jury found not guilty of the gangland murder of Alfredo Zomparelli, who was gunned down in the Golden Goose amusement arcade in Soho. My hon. and learned Friend the Member for Medway may remember the case. In his memoirs, which have recently been on the bestseller lists, Ronnie Knight admits that he got away with murder—in this case literally—although he did not pull the trigger himself. Instead, he gave a contract killer a "nice big envelope" to do it.

Dr. Ladyman

My hon. Friend's contribution is as entertaining and well researched as usual. However, does he have one scrap of evidence to suggest that guilty verdicts would have been delivered if the double jeopardy rule had been relaxed in the suggested manner, but the people in question had not confessed? Would not they have merely shut up and never confessed, but still have got away with their crimes?

Mr. Linton

I cannot predict whether they would have confessed later in life. Some people do so, for all sorts of reasons, and there is no reason why they should enjoy immunity. At the very least, such a change might have prevented the obscenity of the Clerkenwell literary festival, where these authors paraded their wealth. In a report about the festival, the Daily Mirror stated: The star of the evening, however, is Dave Courtney. "Dodgy" Dave arrives in a gleaming white Rolls-Royce flanked by 21 motorcycle outriders. The newspaper reported that Dave organised Ronnie Kray's funeral, has worked as an enforcer and debt collector and has admitted to (but been acquitted of) murder. It went on to state: Charismatic Courtney is the latest underworld figure to swap the prison cell for the Waterstones window display and his memoirs will almost certainly be topping the bestseller lists. Such books have become a sort of publishing boom, but are based on allowing people to boast of previous crimes. Furthermore, they are not written only by people from the underworld.

Many other people have been acquitted of crimes to which they have later admitted. Another famous case is that of John Duffy, the railway rapist, who was convicted of many serious crimes. He later confessed to the rape of Anne Lock, of whose murder he was acquitted in 1988. However, I was most convinced of the need for change by the case of Billy Dunlop, who was acquitted of the murder of a pizza delivery girl in 1991. Earlier this year, he confessed to the crime, but could not be tried for murder. As my right hon. Friend the Minister knows, he could be tried only for perjury. He was convicted, but it is extraordinary that the victim's family had to suffer the past 10 years before they could get him behind bars. The mother and father of the victim spoke of how following his acquittal for murder. Dunlop had boasted to his pals that he had committed the perfect murder. Mr. Ming said: He boasted about it in the pubs and people used to ring us up and tell us. Yet it was 10 years before the police finally managed to bring charges, and even then, they were only charges of perjury.

Of course, those ex-mobsters might be embellishing their tales to sell more books. However, I cannot think of any reason why a jury should not be allowed to make that decision. I fully support the recommendation of the Committee that we should allow retrials, at least for serious offences.

Mr. Marshall-Andrews

The hon. Gentleman has not quite addressed the question that was put. If there is a change to the law, is he suggesting that the number of people who have now confessed to their crimes—rightly or wrongly—would still do so? If they would not, what point is the hon. Gentleman making?

Mr. Linton

We do not know the answer to that question. It would be up to the Director of Public Prosecutions to decide whether to reopen a case, and it would be up to the police to bring those confessions to court. However, at present, criminals are boasting about crimes that they have committed previously, believing that they have immunity. That seems inherently wrong. However, I cannot predict what will happen when this rule is changed.

I readily acknowledge that there are dangers. We do not want the police to pursue a suspect unfairly, nor do we want a prosecutor to retry the same suspect several times in the hope that some jury will convict him. That is why we should allow retrials for only the most serious offences—those that can attract a life sentence—and, I would suggest, not only for murder, but for manslaughter, rape and robbery. We should also make it a condition that there should be new evidence that was not available at the first trial, and which makes the previous acquittal unsafe.

I do not see why we should rule out new evidence that could have been adduced with due diligence at the first trial, as the Law Commission originally proposed. If the police missed a fingerprint, or failed to interview a witness, why should a court not be allowed to consider the fresh evidence? In the case of my constituent, the fact that the police missed a fingerprint led eventually to his appeal being upheld. Why, if it were the other way round, should that not also obtain? For instance, if police investigating a robbery in a car showroom had failed, for whatever reason—perhaps through incompetence, negligence, or stupidity—to look for fingerprints on the car next to the stolen car, but had found them later, could those fingerprints never be used, even though they would constitute very powerful evidence? If so, we would be letting the criminal justice system off the hook.

The Law Society made a point in its evidence about incomplete investigation, which I found very unconvincing. It argued that A police force would allow a trial to go ahead following an incomplete investigation, in the belief that if they did not succeed in obtaining a conviction, the investigation could be continued and they could go back to court with further evidence. It seems most unlikely that the police bringing a serious case against someone, knowing that they had to satisfy the very high standards of proof required in criminal cases, would go to court with only half a case, or without having looked for the available evidence. I find that very implausible. The high standard of proof required is the crucial test in our legal system. Is the idea that one cannot have a retrial in which there is fresh evidence meant to be a kind of incentive or punishment for the police, to make sure that they work very hard when bringing the case in the first place? That punishment would fall not on the police, but on the victim or the victim's family. It is they who suffer in the case of a wrongful acquittal, especially if that wrongful acquittal cannot be put right.

The Law Commission originally shrank from making any recommendation about whether the relaxation of the double jeopardy rules should apply retrospectively. I am interested in what my hon. Friends have to say about that. We think that it should apply retrospectively. As I understand it, the principle is that it would be wrong to change the law so that someone is punished retrospectively for doing something that was not an offence at the time. However, we are talking about people who knew that they were committing crimes, lied in court and got away with it. Such cases are entirely different from those with which the retrospectivity principle intends to deal in law.

Of course, the law does allow retrial in restricted cases. At the very least, the Law Commission would like retrials where scientific advance brings new evidence to light, where religious conversion, for example, brings forward a fresh witness who would not give evidence at the first trial, and in instances of jury nobbling. Those are the basic cases where retrials should be allowed. More generally, where there is new and strong evidence that renders the previous court finding unsafe—a phrase that is perfectly understandable in layman's terms—it ought to be possible to bring someone back to justice.

I find the way in which the legal system uses the double jeopardy principle very strange. Doctors famously bury their own mistakes, and it seems that lawyers use double jeopardy to prevent wrongful acquittal from resulting in a retrial, which could expose the incompetence of the police or the prosecutors. That is hidden for ever from the public gaze, thanks to the principle of double jeopardy. It is nice to present double jeopardy purely as a defence for the wronged individual, but I suspect that it is deeply ingrained in the legal system.

When we gathered evidence from the Law Society and, in particular, the Bar Council, it struck me that some people seemed more familiar with the accused than the victim. If we pursue the logical precept that the legal system must be seen as clearly from the victim's point of view as from that of the accused, we must surely conclude that a wrongful acquittal is as bad as a wrongful conviction. The double jeopardy rule gets in the way of exposing wrongful acquittals, and it should be relaxed.

4.33 pm

Dr. Stephen Ladyman (South Thanet)

My hon. Friend the Member for Battersea (Mr. Linton) seemed to argue for a change in the law to prevent boasting, but I heard nothing in the examples that he gave to suggest that justice would be done. If I have learned one thing in this life, it is that anyone whose nickname contains the word "mad" is not stupid enough to confess while there is still the possibility of his being tried.

We have heard an argument for relaxing the double jeopardy rule that would put at risk our entire criminal justice system, simply to stop people making money from boasting later in life, after they have got away with the crime. If that issue is our real concern, by all means let us introduce a Bill that will allow the state to sue someone for the proceeds of boasting—the money from their books and memoirs—but let us not change the balance of our criminal legal system in a manner that would seriously jeopardise the interests of innocent people.

Mr. Linton

I return to the Dunlop case, in which the man boasted in local pubs in the north-east that he had committed the perfect murder. Does my hon. Friend believe that it would have been better if that person could have been tried for the murder of which he was acquitted instead of merely for perjury?

Dr. Ladyman

I certainly understand the Minister's argument that, from the victim's family's point of view, finding someone guilty of perjury is a different matter from finding him guilty of murder or rape. However, as long as that person receives the same punishment, whatever crime he is subsequently tried for, I am prepared to accept that our present imperfect system is at least an improvement on the alternative, which is to relax the double jeopardy rule with the result that substantially more innocent people would be convicted.

I shall quote a case to illustrate my point. I shall not name the accused, but it is a matter of public record and many right hon. and hon. Members will know the name. A murder took place on Wimbledon common several years ago and the accused was acquitted. On the steps of the court, the police told the television cameras and the world that they were not looking for anyone else in connection with that case. They believed that the jury had made an astonishing cock-up and that the accused was guilty. Can anyone in this Chamber assure me that if the double jeopardy rule had been relaxed, that man would not have been back in court a few months later? The police would have put all their efforts into finding another witness.

Mr. Corbett

I take my hon. Friend's point, but the argument cannot be telescoped so neatly. The Home Affairs Committee is arguing that there must be compelling new evidence and that a court—

Mr. Winnick

The High Court.

Mr. Corbett

It is arguing that the High Court must be persuaded that the new evidence is compelling and that it is possible in the circumstances for a new trial to be fair. It does not help the argument to put it all together within an inch when there is a mile in it.

Dr. Ladyman

I accept my hon. Friend's argument that there must be new evidence, but I suggest that, in the case to which I referred, new evidence—perhaps a new witness—would have been found to bring the case rapidly back to court. The police were convinced that a guilty man had been acquitted. We now know that there are serious doubts about the attitude of the police in that case. Relaxation of the double jeopardy law would have enabled an injustice to be done.

I want to declare my interest in the matter. I am not a lawyer and, with respect to the lawyers who are present, I cannot think of a worse way of earning a living. However, I hope to go through life without committing a serious offence and if I ever find myself in court for a serious offence, it will be as an innocent man accused. I would want to know that the odds of defending myself are in my favour and that when I have defended myself and been acquitted, that will be the end of the matter. That is the least that we should all expect from the legal system.

In his evidence to the Select Committee the Director of Public Prosecutions explained how the double jeopardy rule came about, but, with the greatest respect, I am not sure that he made it forcefully enough. We have the double jeopardy rule because the state is hugely powerful. As my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) said—he has had to leave his place for a moment—the state is responsible for prosecutions in this country. The state is hugely powerful and the individual is very weak. Relatively speaking, the state is all-powerful, so we must build protection into the system. That protection is in the form of principles, which give the individual, who is weak, a fighting chance.

Mr. Winnick

Of course he is innocent. No one doubts that for a moment, but is my hon. Friend saying that he would be happy if someone were acquitted on the most serious charges and then compelling new evidence came to light? Why should a case be finalised simply by the acquittal? He talks about the state, but this is a democracy. Should we work on the basis that the state has no wish other than to see that justice is done? There is a difference between living in a democracy and living in a totalitarian state. Of course there have been miscarriages of justice, but why should the state more or less conspire against the individual unless the police and prosecution authorities believe that there is sufficient evidence that someone has committed the offence?

Dr. Ladyman

I am most grateful to my hon. Friend for introducing the word that I was about to use—democracy. One reason why we live in a democracy is that we have established principles that protect the weak individual against the all-powerful state. We accept that there is a cost for those principles, one of which is that guilty people will occasionally go free. Nevertheless, it is an important principle, which defends our rights in our democracy, because we weight our legal criminal system in favour of the accused—the person who must defend himself.

The other principles that we employ are taken for granted. One is the presumption of innocence: the state must make its case and prove it. The threshold of proof is another: the state must make its case beyond all reasonable doubt, not just on the balance of probabilities in a criminal case. Those principles weight the criminal system in favour of the defendant to ensure that we all have a fighting chance.

Mr. Stinchcombe

Those principles, which give the accused a fighting chance or more than that, would not be affected at all by relaxing the double jeopardy rule. They would still protect the accused.

Dr. Ladyman

I simply do not accept that. We would be tipping the balance. As my hon. and learned Friend the Member for Medway said, relaxing the rule would be a wedge in the door and would erode those fundamental principles. If we are prepared to review our entire criminal legal system and consider the possibility of eventually introducing an inquisitorial system—as exists in France—let us start that debate, but not by chipping away at the principles that are the pillar on which the current system is built.

Mr. Corbett

Will my hon. Friend give way?

Dr. Ladyman

I shall make a little progress, because another colleague wants to contribute to the debate.

Those principles underpin the whole system. We have entered into what I regard as an unstated contract between the citizen and the state. In my mind, as a layperson, we have laws to protect us as individuals from the actions of other individuals and when those laws are broken, we want to see the guilty punished.

I accept entirely what my hon. Friend the Member for Walsall, North (Mr. Winnick) said about the need to punish the guilty, but it is important that the courts do not, wrongly, punish the innocent. To ensure that that does not happen and that the state does not misuse its powers to oppress individuals, we err on the side of the defendant. We make conviction a difficult process. Part of our contract with the state is that the guilty will sometimes go unpunished, because that is preferable, in order to minimise the number of occasions on which the innocent are punished. We accept that contract. I believe that, if we want to renegotiate part of it, we must renegotiate all of it.

The principle of double jeopardy is as fundamental as the presumption of innocence or the threshold of proof. Anyone who believes that we shall not move further down the road of relaxing the principle once we start, should read today's debate. It has moved from the idea of relaxing the double jeopardy rule for a crime serious enough to receive a three-year sentence to the Select Committee's idea that it should be relaxed for a crime serious enough to warrant a life sentence. The Law Commission is saying that murder and reckless manslaughter should be the test. That will not stand the test of time. Once we relax the principle, another high-profile case in the near future will force people to readdress the issue.

Mr. Winnick

Betting.

Dr. Ladyman

One or two parliamentary colleagues appear to have got into trouble recently over betting, but I would be prepared to bet hon. and right hon. Members that, if we relax the rule as the Committee suggests, within 10 years a horrific crime, possibly involving rape or incitement to racial violence, will not fit the established criteria and people will call for the rule to be relaxed further. Eventually, we shall end up with the Law Commission's original suggestion of crimes involving a prison sentence of three years.

Mr. Winnick

My hon. Friend is making an eloquent case for the maintenance of the status quo. He seems to believe that no change is needed in the criminal law. I mentioned a rape case that did not involve a change in the double jeopardy rule as such. Should the jury not have been told about the previous acquittals? That change required a decision by the Law Lords.

Dr. Ladyman

Without knowing the details of the case, I cannot give an opinion. However, I do not believe that the criminal law is entirely immutable; we can adjust practice on occasion. In the case mentioned by my hon. Friend, the Law Lords expressed the view that it was right and proper to bring additional information to the court and make it available to the jury. On the face of it, that was reasonable. However, that is a very different matter from undermining one of the fundamental principles that currently weight the court system in favour of the defendant. If we tip the balance too far, serious dangers will arise.

Let me give one or two additional reasons why that approach is inherently dangerous. The debate on double jeopardy began as a result of the Stephen Lawrence case. The inquiry argued that that aspect of the law should be reviewed. Having considered the exceptions and restrictions suggested by the Law Commission and the Select Committee, I seriously doubt whether relaxing the rule will lead to any change in the Stephen Lawrence case. The Director of Public Prosecutions and other authorities acting on behalf of the Crown did not want to proceed with the case, because they knew that it was unlikely to succeed. Their professional advice was, "Let's build a stronger case. Let's be patient and we'll get our man in the end." That advice was ignored, so we must not pin the blame for the fact that those responsible for the death of Stephen Lawrence have not been punished on the double jeopardy law and say that it must be relaxed.

What should have happened in the Lawrence case was what happened in the case mentioned by my hon. Friend the Member for Walsall, North. The Crown did not proceed in the case of that killing for 23 years, until it had a sufficiently strong case to be sure of conviction. That is the correct way to proceed in a case that is not sufficiently strong initially to secure a conviction. People must wait patiently and build a case.

The police gave another piece of telling evidence to the Committee. When asked, they said that not many cases would be affected by relaxing the double jeopardy rule, echoing the DPP, although the number that they gave was slightly higher. That is because cases are taken no further when someone is acquitted. In other words, it is no longer accepted that the person is innocent: the police will not carry on to discover someone else who could be guilty of the crime, but assume that the person was guilty in the first place. Once the double jeopardy change comes into effect, the police need look no further. In future, every single acquittal will lead to further investigation of the same person, providing the police with further opportunities to get their man. That is a telling insight into the police's attitude to the relaxation. I would be worried about that if it went ahead.

Mr. Corbett

Mr. David Phillips, the chief constable of Kent, when giving evidence about homicide cases that are not resolved by a conviction, said: We never close the case; we used to, because there used to be reports that were termed "closing reports". But, when we recently constructed the homicide manual, we decided the proper course of action was to say that there should be periodical reports which indicate the status of the investigation. My hon. Friend's point does not apply to all cases and all circumstances.

Dr. Ladyman

I reiterate the logic behind that evidence. If the police seriously intend to keep an open mind after all cases of acquittal, the chief constable should have been able to answer the question put to him, as to how many cases a year that will involve. He should have provided a precise figure. He should have been able to say what the DPP said and offered to provide the figures in a note later. I do not accept that the police assume that these cases will remain open: the police are far more likely to assume simply that the jury made a mistake. Various cases provide clear evidence of that.

I shall conclude my comments to allow other hon. Members to take part in the debate. The key issue is clear: if we start to undermine the basic principles of our criminal justice system, we must review everything—including the adversarial system itself. We weight the system in favour of the defendant. As my hon. and learned Friend the Member for Medway pointed out, it used to be a battle in which people would hire warriors to decide the outcome and leave it in the hands of God. The state is all-powerful: under the old rules, the state has Lennox Lewis at its disposal, but the defendant can hire people only as good as Joe Bugner. If Joe Bugner lands a lucky punch and knocks Lennox Lewis down, in future we are going to allow Lennox Lewis to get up, have a rest and come back with a gang of friends to have another go at the defendant. We are talking about a fundamental rewriting of the principles of the criminal legal system as we understand them in this country. I greatly hope that the House will not go down that road.

Mr. Deputy Speaker

Order. May I reassure hon. Members that Mr. William Hill is not an Officer of the House?

4.53 pm

Mr. Paul Stinchcombe (Wellingborough)

I shall make a brief contribution to this important debate on the double jeopardy rule—the long-standing principle that no one should be tried for the same offence twice. At the outset, I also declare an interest as a barrister and past student of Islamic law. Although I never practised criminal law, I was once the junior to the chairman of the Law Commission and have been a pupil in the chambers of a law commissioner.

I mention that because the inquiry and report of the Home Affairs Committee was itself prompted by the Law Commission—in particular by its consultation paper on double jeopardy published in October last year and subsequently by the recommendations of Sir William Macpherson and the Stephen Lawrence inquiry. In its consultation paper, the Law Commission recommended a relaxation of the double jeopardy rule in certain narrow circumstances. We considered that recommendation and agreed that change was necessary—that the double jeopardy rule should be relaxed, albeit with refinements on the Law Commission's recommendations.

I want to set out in my remarks first why I believe that the ancient rule needs to be relaxed, and secondly where and why I depart from the Law Commission, at least with respect to its initial recommendations, as to the circumstances in which the relaxation could operate. I agree that double jeopardy is an ancient rule. It dates back about 800 years in our common law tradition and, before that, to Roman law. It is not just ancient, but ingrained. Its purpose was civilising. It was to protect the citizen from the oppression of the state, to prevent the machinery of the state from repeatedly attempting to convict an individual, to prevent the oppression of such a man or woman, and to protect him or her from the repeated stress, expense and ordeal of repeated trial. We should think on that for a while.

That common law rule was born 800 years before we passed the Human Rights Act 1998. It was born in an age of trial not just by battle but by torture, an age of absolute monarchs. Yet it was born to protect the human rights of citizens. In those circumstances, it is hardly to be discarded lightly, without deep reflection. I entirely agree with the hon. Member for Southwark, North and Bermondsey (Mr. Hughes): we need a compelling case before we suggest amendments. However, after mature reflection on the arguments, I believe that such a compelling case has been made.

The case can best be made by reference to the historical context to which I have referred. After all, rather a lot happens in 800 years. Indeed, with the pace of change accelerating through modern technology, rather a lot has happened in just the past eight years. Centuries ago we did not have the advantage of contemporary forensic science. No second trial, all those years ago, could bring forth missed or misunderstood evidence capable of proving that a person was present at the scene of a crime and that his or her alibi was false. No second prosecution in the previous century, let alone in mediaeval times, could determine someone's identity from a spot of blood too small for the human eye to see. It would not have been possible to find that spot of blood.

All that has changed. Forensic scientists are now capable of assisting the judicial process in ways that would have been unimaginable to our forefathers. First came fingerprinting, then genetic fingerprinting—DNA testing. In the future there will be corneal and facial mapping and enhanced closed circuit television pictures.

When such evidence can prove conclusively the innocence of someone accused of a crime, it is, quite properly, admissible, because the innocent should not be convicted. When it can prove conclusively the innocence of someone previously found guilty of a crime, again, quite properly, it is admissible so that an appeal against conviction can succeed. Given those circumstances, on what possible basis can it be argued that when the same kind of evidence, of identical weight and identical probative value, can help to prove the guilt of someone previously found innocent, our criminal justice system must always, none the less, ignore it? Surely it is not for fear that a second trial could never be fair, because we already allow for retrials. They can be fair, especially if the emphasis of the test in law looks back rather than forward to whether the original acquittal was unsafe, without prejudging the outcome of a second trial.

Dr. Ladyman

My hon. Friend is making an eloquent case. As a scientist, the one area on which I have an open mind is that of incontrovertible new scientific evidence, which makes me feel that there is a case to be discussed. However, if that is the issue, why did the Committee not limit the proposed relaxation of the double jeopardy law to cases in which incontrovertible, new, physical, scientific evidence, which was not available at the original trial, would be applicable? I would be much happier about that than about the broad relaxation that is proposed.

Mr. Stinchcombe

At least I am happy that we may be persuading my hon. Friend about a limited relaxation of this important principle.

I shall deal with the arguments that have been raised against the suggestion. First, there is the fear that a second fair trial would not be possible. We can have second fair trials. It is suggested that the police would be lackadaisical in their investigations. Have we sunk so low in our cynicism to believe that the police would not investigate properly and would then proceed to prosecute improperly simply because of this relaxation of the rule? We are then told that we should still fear the over-zealous prosecutor. Hundreds of years ago, when the rule became enshrined in our common law tradition that made a lot of sense. We did not then have the human rights legislation or advanced rules of fair procedure. A repeat prosecution could be a genuine tool of oppression by the state. Now we have protections against that happening.

Most importantly of all, and coming back to the point that my hon. Friend has just made, hundreds of years ago a repeat prosecution could not yield the forensic evidence that it can now. Conclusive evidence of guilt can now be brought forward. If the criminal justice system, through direct operation of the law itself, fails to allow such evidence to be adduced, it fails to achieve one of its two principal purposes: not just to protect the innocent, but to protect the innocent from the guilty. When that happens, even worse follows because the criminal justice system itself falls into disrepute. That is not an idle fear: it is a real fear. Just imagine the horrific scenarios that could so easily arise as parents of raped and murdered sons and daughters are told conclusively by scientists that their children's killers are walking free. That to my mind is genuinely a vista too hideous to contemplate.

The time for this ancient rule to change has come. Science has moved on. The law should catch up with it, especially because we now have other protections for the human rights of the accused. There should be limitations on that relaxation. It would not be right, for example, to relax the rule for all crimes. The public would not be well served by clogging courts with retrials of minor offences. The spectre hanging over many acquitted people would be unjustifiable. Where do we draw the line? The Law Commission originally suggested that it be drawn below those offences likely to attract a prison sentence of three years or more. That seems wholly unworkable. It requires conjecture as to possible sentence before guilt has even been established. That cannot conceivably be right.

The Law Commission now suggests that the line should be drawn below murder and reckless killing. I disagree with that too. Think of the offences that would thereby be excluded, such as aggravated burglary and rape. A serial rapist who breaks into the homes of women and children to assault them in their bedrooms would walk free even when we know from conclusive scientific evidence who he is. That cannot be right. Until I am persuaded otherwise, I believe that the threshold should be exactly where the Select Committee recommended it should be, so that any offence that could carry a life sentence could also be retried in appropriate circumstances.

I also disagree with two other of the Law Commission's original recommendations, although I believe that it may have moved towards the Select Committee's position. First, it recommended that a "due diligence" condition should attach to any relaxation of the rule so that new evidence could be admitted at a second trial only if it could not, with due diligence, have been adduced at the first. That means that if the police had failed to investigate a murder properly and had thereby failed to discover critical evidence of guilt before trial one, no retrial could be permitted, however conclusive of guilt that new evidence might be. That again cannot be right when one recognises the origins of the debate in the Stephen Lawrence inquiry. It would mean that the victim or the victim's family would suffer injustice twice, once at the hands of incompetent police officers and then at the hands of the justice system itself. It would mean even more than that. It would mean that the second injustice would be suffered precisely because of the incompetence of the police officers. That is not tenable in a modern society.

Finally, but with more caution, I do not agree with the Law Commission's original recommendation that the relaxation of the double jeopardy rule should not have retrospective effect. I am always slow to support retrospective enforcement, but I can conceive of nothing more self-evidently appropriate than where the sole purpose of the legislation in question is to prevent past miscarriages of justice. The double jeopardy rule has been an integral part of our criminal legal system for many centuries, but the time has now come to relax it in order better to protect the integrity of the system and of the citizens of this country. My hon. and learned Friend the Member for Medway rightly said that we could never have a perfect judicial or criminal justice system, but we can have a better one, and this is one improvement that we should make.

5.5 pm

Mr. Boateng

Unlike the hon. Member for Surrey Heath (Mr. Hawkins), I am not and never have been an opponent of the experiment that sees debates such as this conducted in this Chamber. I have sat through and contributed to a number of them. I am bound to say, however, that I have never sat through or heard a better debate in this Chamber than that in which we have been privileged to participate this afternoon. If ever there was a justification for the existence of a Chamber—and, in my view, for the right of Select Committees to ensure that their reports are debated on the Floor of the House—this afternoon has proved it. The balance of the argument has fallen in favour of hon. Members whose proposals for the resolution of this issue are along the lines of those of the Select Committee and of the interim findings of the Law Commission. That is not surprising, as the Select Committee was so well represented by the hon. Members who have spoken this afternoon.

None the less, I do not intend to express a view one way or the other. Views were put strongly and with conviction on the other side of the argument, by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) and by my hon. Friend the Member for South Thanet (Dr. Ladyman). The argument will run for some time. On the Government's behalf, I urge any who take an interest in our proceedings to engage with the argument if they feel a desire to do so. Such people should make representations to the Government, who are anxious to ensure that we proceed with the widest possible consultation. The work of the Select Committee has helped enormously. The Law Commission has indicated an interest in the contributions that have been made during today's debate and will take them into consideration as it prepares its final report.

One or two things struck me forcibly from this good debate. Obviously, one of them was the introduction given by my hon. Friend the Member for Birmingham, Erdington (Mr. Corbett), who ably represented the balance and force of the arguments advanced in the Select Committee report. I was struck also by the passion expressed on behalf of the victims by my hon. Friend the Member for Walsall, North (Mr. Winnick). Important contributions were also made by a number of other hon. Members. My hon. and learned Friend the Member for Medway expounded his argument with his usual robustness. It is a pity that he was not in his place to hear the comprehensive and forensic dissection of his arguments provided by my hon. Friend the Member for Wellingborough (Mr. Stinchcombe). That was a job well done, if I may say so as a mere observer. My hon. and learned Friend the Member for Medway would have done well to hear that contribution, and I hope that his attention is drawn to it. I shall certainly do so, and I shall long remember it.

My hon. Friend the Member for Battersea (Mr. Linton) made an important contribution. As a lawyer myself, I shall particularly remember the suggestion that doctors bury their mistakes, while we lawyers merely connive in their acquittal, and that the public suffer either way. That was a very powerful image indeed.

My hon. Friend the Member for South Thanet seems to have little time for lawyers and cannot think of a worse way of earning a living. He was good enough to share with us the various things that he would want to know if he were an innocent man accused of a crime. Having heard my hon. Friend, the first thing that he would probably want to know was the name of a good lawyer.

Mr. Winnick

Are you offering?

Mr. Boateng

We hear what he says, and we take his attack on the legal profession with a pinch of salt. [Interruption.] My hon. Friend the Member for Erdington says that he need look no further than my hon. Friend the Member for Wellingborough, and there is much force in that argument.

It has been a good debate that has contributed to our understanding of the issues, and I add my voice to those who have thanked the members and Chairman of the Home Affairs Committee for making it possible.

Question put and agreed to.

Adjourned accordingly at twelve minutes past Five o'clock.