Amendment moved [this day]: No. 342, in

clause 62, page 38, line 38, leave out subsections (4) and (5).—[Mr. Grieve.]

Question again proposed, That the amendment be made.

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

No. 301, in

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

No. 302, in

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Difficult.

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

Not joined-up government.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I must have missed it.

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

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

Why not?

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

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

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

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

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

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

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

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

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

Not that I am aware of.

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

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

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

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

Ah.

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

Is there a qualification for first offences?

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

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

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

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

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

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

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

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

Order. I thought that the Minister had finished.

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

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

''Conduct punishable under the law'',

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

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

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

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

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

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

One hundred per cent.

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

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

It happened only yesterday.

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

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

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

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

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

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

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

Amendment, by leave, withdrawn.

I beg to move amendment No. 300, in

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

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

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

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

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

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

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

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

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

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

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

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

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

I voted against it.

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

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

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

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

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

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

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

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

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

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

Order.

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

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

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

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

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

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

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

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

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

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

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

As the hon. Gentleman mentioned me, will he give way?

I will of course give way. The hon. Gentleman and I sometimes disagree because he seems to forget that many of his constituents end up being wrongly prosecuted, just as many of mine do. I hope that he is felt to be representing them as well as everyone else.

They are not the ones who worry me.

If they do not worry the hon. Gentleman, I am sorry for them. It seems to be a disadvantage to have a Member of Parliament who is not concerned about people who are wrongly prosecuted.

The hon. Gentleman is advancing what are no doubt important arguments, though they are slightly complicated, as I think he would agree. Will he turn his mind to the victim's family, and how they might feel if, for example, compelling and conclusive scientific evidence comes up to prove the guilt of somebody who has been acquitted, yet, under what he would have, the person concerned cannot be put on trial again because there is a cut-off point that seems arbitrary to the family?

That is a perfectly proper point that we need to take into account. The case depends on whether the hon. Gentleman believes, for example, that DNA evidence is always conclusive—we shall come to debates about scientific evidence. Personally, I remain to be persuaded of that. However, there are of course considerations for the victims. Victims and their families will always be aggrieved, which can happen for many reasons. For example, people might not ever be caught or convicted.

People not being caught in the first place is a much more serious issue, and many more are aggrieved by that. If the criminal justice system wanted to pull its socks up, it would catch more people. Many more people get off through not being caught than through getting off at a trial. I think that the hon. Gentleman knows the figures. On the last occasion on which I checked, of those appearing in the magistrates court, 90 per cent. plead guilty, and a significant proportion of the others are found guilty. Of those appearing in the higher courts, something like over a third are convicted after a trial in which they plead not guilty, and a significant number plead guilty in the higher courts. The matter is relative.

It is not a matter of ''either, or''. Of course people wish to get those who have perpetrated crime in front of the courts just as much as they wish to secure a conviction of the guilty. Saying anything else would be to misrepresent the Government's position.

I invite the hon. Gentleman to join us in the real world. I raised the case earlier, which many members of the Committee referred to, of the child sex killer who got away with it on the first instance, did not take the stand, could not be done for perjury, wrote memoirs about the crimes and was able to escape proper and due punishment. As the hon. Member for Hertsmere (Mr. Clappison) points out, that is a double hit. It not only hits the victim who was murdered and abused in the first instance, but is a constant reminder to the family that that person got away with the crime and is making money out of it. That case is real. I hope that the hon. Member for Southwark, North and Bermondsey, in his desire to defend the innocent at all points—I fully sympathise with that—will consider the position of the guilty who abuse the criminal justice system, and why we are here to remove that loophole.

I completely understand that point and I am sympathetic to it. However, I add one rider. It is not beyond the realms of possibility—I am sure that it has happened—that people later say that they have done something when they have not. They might even do that with publicity. People in prison often say that they have committed offences when sometimes they have not. People who are mentally ill invent all sorts of things for all sorts of reasons. Every year I receive letters, as I am sure the hon. Gentleman does, from constituents who are clearly disturbed that retail events in their lives that sound entirely fictitious to me. I have had people at my surgeries who are clearly mentally disturbed telling me about events, sexual activities, and so on. I am much more direct now than I was when I was first elected, and I say, ''I don't think you need to come and see me—I think you need to go and see a doctor, because I don't believe what you say.'' I simply point out that one must approach people who pleaded not guilty and later say, ''I did it'' with caution.

I accept that such examples are probably a minority of the cases that we are discussing. I absolutely do not condone somebody who says, ''Not guilty'', yet later owns up. I also do not condone the fact that from now on those people should be brought before the courts. That is why I do not take an absolutist position on principle. In relation to murder and to the most serious cases, but certainly murder, we should be able in future to retry people. In fact, there is not very much difference between us. I do not want it to be merely a retrospective law. I am happy that for the most serious cases there is a change of law from now on.

Perhaps we are at cross-purposes. I was debating the clause on cases that may be retried; the hon. Gentleman is debating a clause on finding people automatically guilty. I have obviously missed that page.

I do not understand that. Let me make my last two points. The penultimate point is this. If somebody is acquitted and there is a chance that they can be retried, there is a risk of abuse of the criminal justice process, including by the police and the prosecution authorities. The risk is that somebody who has been acquitted on a murder case could be picked up on a case of serious wounding or on a case just below the tariff that would allow a retrial. The police in that area, whether in Cleveland or in the Metropolitan police area, might say ''If you do not plead guilty to this, we are going to do you on that murder case again. We are going to get you. We have not forgotten that you got off when you should not have got off.''

Let no one tell me that the prosecuting authorities do not sometimes use such carrots and sticks; I would not believe it. Interrogation will often put pressure on people; the comment might be, ''Own up to this, and we will drop that. Own up to this and we will forget that.'' That is how it works. That is the real world that the hon. Gentleman refers to. The police, for all sorts of perfectly good reasons, are not lily-livered, delicately treading, carefully cautious people who do not sometimes try to ensure that they get the result that they think justice deserves. Of course that does not happen in the interview that is recorded by tape recorder and television screen; it happens on the street. It happens in all sorts of places. It can happen indirectly as well as directly. There is a severe risk that if we go down that road people will be pressurised into pleading guilty to crimes to avoid being retried for a charge of which they were acquitted.

The police, if they think somebody is guilty—the Stephen Lawrence case, the Damilola Taylor case and many others—are understandably angry. They do not like giving up on such cases, understandably. They are very keen to get somebody back into court, understandably. They have incentives to stretch the limits of what is acceptable.

What on earth has that to do with the amendment, which, according to the hon. Gentleman, is about retrospectivity? If his argument is good, and I challenge it, it is just as true for future offences as it is for past offences.

That is true. However, it means that in future everybody will know the score, which at present they do not.

May I paraphrase what the hon. Gentleman is saying so that I can follow the logic? He is saying that there is a serious risk in many cases of people who are not offenders accepting a possible prison sentence of several years for a serious offence because they fear that they could be retried for another offence that they have also not committed. That is what the hon. Gentleman is saying.

It might not be for a long time. There is a serious chance that somebody will be charged and tried for an offence, whatever it may be, that they may not have committed. They think, however, that they will be stitched up. People are stitched up; they have always been. Our criminal

justice system may be very good, but it is not perfect. It may be one of the best systems in the world or it may not. There have been sufficient miscarriages of justice—the hon. Gentleman must know that as well as I do—when evidence has been contrived, when the police have made claims that have clearly not been true and have invented evidence. We must build in all the precautions that we can. We must minimise the chance of that happening.

The last point is that the Home Secretary and other Ministers have certified that this legislation complies with the European convention on human rights. It is still mainly in force; only one part has been derogated from and I hope no more will be derogated from. Significant numbers of people think that either article 6 or article 7 might be breached by a provision such as this. I have a neutral view. Others think that that is an issue. I think that we should weigh it in the balance.

My judgment is that, although the Select Committee on Home Affairs and others have suggested that it could be retrospective, the proposal would be far more widely acceptable if it were limited to the few most serious offences and not retrospective. My hon. Friend the Member for Somerton and Frome and I will therefore vote in favour of the amendment to register the fact that we believe that that will be a better way forward.

May I ask the hon. Gentleman to bear it in mind that before the Court of Appeal gave an order for a retrial, it would have to be convinced that the new evidence was reliable and substantial? I alarmed at the suggestion of stitching up by police officers.

That is certainly true. I understand that entirely. That is why the police would only ever be able to pursue informally, under any other prosecuting authority, a case in which it was said that a prosecution would go ahead unless the accused pleaded guilty to another charge. Because the threshold would be high, the police would know that it would not be worth the effort to reopen the first case. Therefore, it would be a threat that they did not intend to carry out. They would just want to secure a conviction on the second case. The defendant might be the most convenient person to plead guilty to a particular burglary. If everybody knew the score, they would know how high the threshold was.

I said earlier that this was one of the two issues in this wide debate in relation to which my colleagues around the country found the arguments most closely balanced. It is a matter of judgment. There is not a right and a wrong answer. However, sufficient concerns have been expressed that we should proceed carefully. One way of doing that is only to legislate prospectively, not to open up the opportunity for every acquittal of anybody, still alive, who has been acquitted of any of the 29 offences to become a provisional acquittal from the moment that the Bill becomes law.

We have had an interesting and important debate. I shall come to the human rights issues in a moment. However, I should like to address the substance of the hon. Gentleman's points. He

conjures up the spectre of a situation in which, if retrospectivity is applied, as we propose in the Bill, lots of people wander around, thinking that the authorities will come after them again. The only people who have any justification for that fear are those who were acquitted notwithstanding the fact that they did do it. That reflects the point I made earlier. Where is the new and compelling evidence to come from, which the court would have to consider? I do not accept that everyone who has been acquitted of any of the offences that are in schedule 4 will be wandering around in constant fear of being brought back to court. The only people who have anything to fear are those who did it and in whose cases new and compelling evidence becomes available subsequent to their original acquittal, which would allow the case to be considered.

The hon. Gentleman raised the question of public confidence in quoting from, I think, the Law Society. I find it hard to see how public confidence will be damaged by retrospectivity, but I can see how, as in the case alluded to by my hon. Friend the Member for Nottingham, North, it can be enhanced by the provision. If we are to debate whether, on balance, retrospectivity enhances public confidence in the criminal justice system or damages it, the overwhelming evidence of the argument that we heard from others is that it enhances public confidence.

I therefore do not accept the point made by the hon. Member for Southwark, North and Bermondsey, although I acknowledge that he tried to ensure that we gave full consideration to the pros and cons of the argument. Like other hon. Members, I tried hard to follow his argument about the damage that could be done to the defendant's interests—he gave an example of a defendant who had chosen not to take the stand—but the point was comprehensively responded to in interventions from my hon. Friend the Member for Wellingborough.

At one point, the hon. Member for Southwark, North and Bermondsey asked why we should worry about retrospectivity, and said that we should catch more people. The whole point of the clause is to catch those who did it and who got away with it. I see no contradiction between the two.

The hon. Gentleman expressed concern about police officers subsequently trying to use the provision as a point of pressure, but that point was answered in an intervention from the hon. Member for North Down. The hon. Gentleman was right to say miscarriages of justice do occur—we know that—and it is right that we should be deeply concerned about it. However, we have to acknowledge and recognise the fact that people committing crimes and getting away with it is a miscarriage of justice.

The Minister referred, but not by name, to the hon. Member for Nottingham, North, who mentioned what is nowadays a sensational type of case—a child molester who gets away with it, is acquitted but, in later years, writes to admit his guilt. Given that a fairness test is written into clause 66, will the Minister say whether he believes that the provisions could be used to address such a case?

The straight answer is that, first, it will be a matter for the Director of Public Prosecutions in exercising his or her functions in relation to the Act, as the Bill will become. Secondly, it will be for the Court of Appeal to determine the application. In that sense, I cannot answer the question. However, the provisions would at least permit the issue to be aired. The clause would then kick in, and it would be for others, in the light of the legislation that eventually emerges from Parliament, to consider that precise point.

We shall return to the question of the prospect of a fair trial. It is specifically acknowledged in clause 66(2) that consideration will be given to

''whether it is likely that a fair trial pursuant to the order would be possible''.

In response to the point that the hon. Lady has rightly and repeatedly made to the Committee, that is the key test.

On the question of retrospectivity and the other points raised by the hon. Member for Beaconsfield and others, it may help if I remind the Committee that the Home Affairs Committee and the Law Commission backed the idea of retrospection. The Law Commission said:

''We consider that the arguments in favour of giving the exception retrospective effect are powerful. Substantive retrospective criminal legislation renders an act, which was legal when it was performed, subsequently illegal. In the case of the procedural change we propose, the alleged act was already a crime.''

That point was acknowledged by the hon. Member for Southwark, North and Bermondsey. The commission continued:

''The new procedure merely makes it possible (or easier) to bring the offender to justice, a desirable outcome whenever achieved.''

The Home Affairs Committee was concerned that, without retrospection, the change would take years to have an impact and that would create a sense of frustration about past cases.

As for article 7 of the European convention, the Law Commission considered and rejected the argument that given the exception retrospective effect would be contrary to article 7. It said:

''The requirements of article 7 are, in our view, satisfied if the conduct in question constituted a crime at the time when the offence was committed. It is immaterial that the procedural rules in existence at the time of an acquittal or conviction prevented it from being reopened.''

The Law Commission considered that question specifically. It continued:

''Article 7 would not prevent the reopening of such an acquittal or conviction under provisions subsequently coming into force.''

For all those reasons, the case for retrospective application of those provisions is strong.

I am grateful to the Minister for the time that he has taken over the issues that have been raised. I did not always find the arguments put forward by the hon. Member for Southwark, North and Bermondsey easy to follow. As he may have appreciated, I put my anxieties on a rather narrower basis.

However, I must say to the Minister that those anxieties remain. First, acts that may have been detrimental—however much people say, ''Well, you've landed yourself in it by making a confession''—raise human rights issues. Perhaps, curiously, I do not worry so much about that. However, the second issue that emerged, on which the hon. Member for Southwark, North and Bermondsey touched, hit me forcefully. According to the principles of retrospectivity, cases will be retried that originated at a time when procedures were entirely different from what they are today.

Offences investigated before 1986, when the Police and Criminal Evidence Act 1984 came into operation, and before the time when a judge could direct the jury that inferences could be drawn from silence, will give rise to some very particular problems. A decision by a defendant then to answer none of the police officer's questions and to give no evidence in the witness box at trial would, 15 or 20 years later, give rise to severe issues of fairness. Although the police may re-interview a defendant in a second investigation, he can legitimately claim that the time when he was best placed to give answers—and would have given answers—was 20 years earlier. Then he had relied—properly—on a right to silence that he no longer enjoys. Moreover, he could have relied on what he might have said in the witness box but chose not to, because of the state of procedural law and rules at that time. That will give rise to serious problems in holding trials at all.

I acknowledge that ultimately, as well as the principle of retrospectivity, this raises the question of whether a further fair trial is possible. Even if we were to make the principle operate in future, I cannot guarantee that the rules in court will not change in 10 years' time. Exactly the same problem will arise then, with courts looking back to what happens now.

Leaving aside the question of whether we are looking at retrospectivity, and the other clauses that we must consider, especially that one that deals with the circumstances in which a retrial may proceed, I keep finding examples that make me believe that these retrials, which the public are waiting for, are never going to happen. The procedural problems in ensuring fairness may often be insurmountable. That is a matter that we shall have to consider properly a bit later. As far as retrospectivity is concerned, I am mindful of what both the Law Commission and the Select Committee have said. Heaven knows, as matters stand, all that is exciting members of the public is the prospect of retrospective retrials. It is inevitable that the public look to Parliament to deal with acquittals that took place five, 10, 15, 20 or 25 years ago, which they consider should now be called into question. They are not concerned about the future; those offences have not yet been tried a first time.

I accept what the Minister said about procedural rather than substantive law, and for that reason I think that, if the safeguards are right as to fairness, the issue of retrospective action is surmountable. Therefore, I do not intend to press the amendment to the vote.

Before the hon. Gentleman makes up his mind, would he comment on one point? I was sorry that the Law Commission did not extend its contemplation of the human rights legislation to article 6. Although article 7 is not being breached, because a criminal offence is not being made of something that was not criminal in the past, article 6 states:

''Everyone charged with a criminal offence shall be presumed innocent until proved guilty''.

There are no ifs or buts. That is a clear, guaranteed right.

I understand the hon. Lady's point, but my feeling is that that argument—and I should be willing to listen to her say more about it—will apply later in our deliberations. I have tried to avoid too much discussion of the issue of the generality of retrial. An enormous question arises about whether it will be possible to hold a retrial at all, because of the extent to which the presumption of innocence will have been damaged by circumstances. That is another reason why I expect retrials to happen far less frequently than some people hope. To my mind, the point will arise to be dealt with later on.

About the principle of the matter, the Minister says that new offences are not being created retrospectively, but that a procedural change is being made and, as a matter of principle, the Law Commission's view can be properly accepted. That is a powerful and persuasive argument. The Select Committee's argument that the issue excites members of the public, and that that justifies establishing a retrospective provision, is much less compelling. If the Committee accepted all the public's arguments about what should be included in the criminal justice system, we should undoubtedly decide in favour of a return to capital punishment and all sorts of other measures that the House is not minded to accept.

Rightly so.

I note what the Minister says.

I think that everyone accepts that the issue of retrospective effect is a matter of the balance of judgment. Does the hon. Gentleman agree that that balance of judgment is affected by the width of the areas of evidence that can be adduced, so that the narrower they are, the more likelihood there is of a reasonable result? Does he also agree that the range of offences that can be retried is relevant? By widening the scope of the evidence that can be used, and the range of offences that can be retried, the Minister has tipped the balance on the question of retrospective effect.

I appreciate that argument. We have, in a curious way, reached the point at which we shall go round in circles. For example, there is a suggestion that new evidence should be restricted to DNA evidence. However, having decided on that, should we take the view that the person in question should still have an opportunity to answer the new assertions in a police interview, or should the authorities go straight into the retrial on the basis of the previous evidence, including such answers as the defendant

might have given 20 years before, with the addition of the DNA evidence?

That brings me back to my point about the fact that procedural changes that will have taken place will have an enormous bearing on the potential fairness of the trial. That is why those who try to implement the measure will find it extremely difficult. I can envisage that applications to the Court of Appeal for leave to bring a retrial will be complex, and will involve numerous submissions. The number of really old matters that will get through that scrutiny process—I do not mean those that took place six months ago—will be minuscule. I can see every possible legitimate hurdle and handicap to embarking on the process. The hon. Member for Somerton and Frome is right, but at the same time—although we cannot say it is so difficult that there should be no retrial process, and we should just retain the double jeopardy rule—if we break the process down into compartments, which I have accepted that we must do in this Committee, we must take one compartment at a time. I am not prepared to vote against the principle of retrospectivity, but I will not withdraw the amendment, because I wish to give other Committee members the opportunity to express their views.

The debate has highlighted for me how enormously complex the issue will be in practice. Retrospectivity, when one starts to apply it to offences that were committed under different procedural rules of investigation, is likely to present insurmountable obstacles to fairness and could, in practice, result in there being no trials at all.

I appreciate that the balance of view on the Committee means that we are unlikely to proceed with the amendment. Some of the arguments that I have put, others have shared; some have been from personal experience. The Minister put a well understood point, frequently voiced, not least by the Prime Minister, that it is a miscarriage of justice when guilty people go free. I understand that. However, life is more complicated, in the sense that many miscarriages of justice are brought about by professionals not doing their jobs properly. Just as we have brilliant hospitals and less good hospitals, operations that work and operations that do not, good teachers and poor teachers, so we have good police officers and less good police officers, and good investigations and less good investigations. One of the things that occasionally produces injustice is a poor investigation. Many people can be victims: witnesses can be victims, the defendant, who is then charged, can be a victim, and the people who were the victims of the crime can be the victims. There is a set of miscarriages of justice that can happen; it all depends how the process works.

Secondly, the Minister made the point that if somebody were acquitted once and there was the prospect of a retrial, the only people who would be worried about provisional acquittal—the fact there was no longer certainty, and no finality—would be those who were guilty. I do not accept that philosophically or practically. It is very unlikely that an innocent person, acquitted, would be the subject of a second trial—at which he would again, one hopes, be

acquitted. However, by definition, it cannot be impossible. However strong the evidence might have to be—I entirely accept that it would have to be very strong to pass the threshold, because I also share the view that few cases will get through the system—the innocent person might not know that. For the rest of his life, not having read the legislation, he will not realise how easy or difficult a retrial might be. All that he will know, if the Bill becomes law, will be that in England and Wales, in the case of any of the offences listed, where there has been an acquittal there could also be a retrial. The problem is that lack of finality, irrespective of the reality.

My third point is that the Minister said that this was all about ensuring that people who had committed offences were caught. If he came to me with his colleague the Minister for Criminal Justice, Sentencing and Law Reform and said, ''The criminal justice system is up to date, we have cleared our backlog, all the cases in the in tray are dealt with, we have caught all the people who were doing nasty things, so we have plenty of time. We shall now go back and deal with all the old cases that have been through the system once''—

That is nonsense.

No, it is not nonsense. What do we want the criminal justice system to do in practice? Do we want it to concentrate on deterring and preventing crime and catching people who might commit offences in future, or do we want lots of people reopening cases that have already been through the system? With a limited number of people, we cannot do both. The people who are unable to do their current jobs adequately will be asked to go over old cases as well. Alternatively, we shall spend public money hiring further people: more lawyers, more Crown Prosecution Service employees, more people in the office of the Director of Public Prosecutions, more police, and more civilians working for the police. It will be similar to social services departments having to go back over many old child abuse allegations. I do not know about that matter in detail, but many colleagues on both sides argue that the enthusiasm for going back over old ground has been exaggerated.

The danger in saying that the law will be retrospective is that the public will think that cases that they are concerned about will be reviewed and might result in convictions when they had previously resulted in acquittals. A minimal number of cases is likely to get through the system. We must all have encountered in our surgeries people who are not happy as the result of a social security appeal, an immigration appeal or a housing decision. They keep coming back, and they are never satisfied that justice has been done.

If Parliament says that the law has been changed, and that old cases can be reopened, that will raise expectations. It has already done so in some highly unlikely cases. The Commissioner of Police of the

Metropolis, for whom I have great respect, is on record as saying that if the law is passed, he expects retrials in the Stephen Lawrence and Damilola Taylor cases. It is highly unlikely that that would happen, and to make the public think that it is likely raises unrealistic expectations. The criminal justice system will be damaged if expectations are raised and cannot be fulfilled.

Is it worse to decide whether a trial can proceed by applying a test or to retain the current position in which there is no hope of that because even if compelling evidence subsequently comes to light, there is no prospect of bringing a person to retrial?

That is a perfectly proper question. On balance, I accept that it may be better to give people hope that something might be put right. However, I fear that a lot of people will think that it will be possible to reopen and retry any case in which they have an interest. For reasons that we shall discover in a minute, the number that actually goes down that route is likely to be very small.

In a matter in which I am concerned—Julie Hogg was murdered by a man who has confessed that he did it—the chief constable has assured her mother and me that he will reopen and review the case. On the face of it—I have not studied the case as fully as a barrister would if she had the brief—it looks like a powerful case. What will the hon. Gentleman say to that lady if the law is not made retrospective?

I am aware of the case, although I have not examined the details. The chief constable may have been unwise to say that when, since the law has not been passed by Parliament, he cannot guarantee it. If he gave an unqualified assurance, it was a foolish thing to do. If he qualified the assurance—to the effect that reopening the case might be possible if Parliament changed the law—and if he has talked with the family about all the hurdles that would have to be overcome and has taken legal advice and seen the draft Bill, it is fine if he takes the view that the case will be able to succeed. But it seems to me that the hon. and learned Lady has made exactly my point: people's expectations are being raised, but those whose expectations will be fulfilled are likely to be far fewer than those whose expectations are being raised.

The hon. Gentleman has said that it will be fine if the review has been promised on the conditional basis that the Bill will pass, which the chief constable must obviously have done, and if the chief constable finds the case a viable one. However, the hon. Gentleman is pursuing an amendment that would prevent that from happening, because the case to which I referred, like all cases in question at present, is retrospective. What would he say to my constituent about that?

I would say to the hon. and learned Lady's constituent what I have said to the family of Stephen Lawrence and others. I do not think it right to change the law retrospectively. That is a straightforward argument, and I am not afraid to make it and have done so before in public. On

balance, that would be the best way to proceed, and I would then elaborate on the argument. It is not as if I have not done that in public in a high-profile case before. I can only be honest with the hon. and learned Lady.

I accept that this is a matter of judgment. Not all my colleagues share my view. We are registering our nervousness about the proposal, although I accept that the balance of argument, and the balance of view in the country and among those who have considered the issue, is in favour of making the law retrospective. It will be interesting to see how many cases are affected by the proposal if it becomes law.

Much of what we are talking about has to do with the nuts and bolts that will be resolved in due course by a combination of the Director of Public Prosecutions and the Court of Appeal on the basis of the criteria before them at the time. I do not have a big problem with that.

I have a degree of sympathy with the argument in favour of retrospection. We are talking about today's science and the position of 10, 15 or 20 years ago. It appears, given the changes that have taken place and public demand, that there should be retrospection. I mentioned the Tutill case this morning, which oddly enough was not a double jeopardy case, but there is also the Hanratty case.

There is room for individual views on this matter. I feel that there is a certain sense of justice in making the law retrospective, but that is about as far as I want to go. The problem with not making it retrospective would be that we would have the new law from today onwards only, and that although the science is sufficiently advanced, one would be unable to attack the mischief that the changes are designed to attack. I see the strength of that argument, although, as is usual with me, I see both sides.

May I make an apology? I described as my constituent the mother of the dead woman in the case to which I referred. That was a slip of the tongue: she is in fact a constituent of my hon. Friend the Member for Stockton, North (Mr. Cook), who has fought doughtily on her behalf.

Question put, That the amendment be made:—

The Committee divided: Ayes 2, Noes 12.

Question accordingly negatived.

Amendment proposed: No. 330, in

clause 62, page 39, line 8, leave out

'an offence listed in Schedule 4'

and insert 'murder or genocide'.—[Simon Hughes.]

Question put, That the amendment be made:—

The Committee divided: Ayes 2, Noes 12.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

On a point of order, Mr. Cran. I am sure that all hon. Members are grateful for your tolerance in allowing the debate to develop on such an important subject. However, our discussions have covered most, if not all, the points that can be raised about clause 62, schedule 4 and many clauses in part 10. Might you consider whether it is necessary to have a debate on clause stand part?

If I had judged that there should not be a debate, I would have exercised the powers available to me. The fact that I did not do so signals that there will be what I hope is a short debate.

I reassure the Labour Whip that I want to ask only one question, which relates directly to the question asked by the hon. and learned Member for Redcar in the previous debate. Did the Government consider the cases in which there had been an omission and, if so, with what consequence? It strikes me that there would be a much greater willingness to retry cases of the sort that we debated in relation to schedule 4, in which prima facie evidence would fall to be reconsidered because of an omission. I do not share the view expressed by the hon. Member for Beaconsfield that someone writing memoirs makes matters any more or less justifiable.

A related question that has not yet been raised, which I hope the hon. Member for Nottingham, East (Mr. Heppell) will accept, is why the Government did not consider an absolute time limit question. In fairness, I am aware that the delay is a factor in a later clause. If the Government did consider such a time limit, why did they reject it?

We have been debating all day, so I shall be brief. We have heard from the professionals and the experts, so the amateurs should be allowed a brief go, especially as some hon. Members have been waiting to make a few remarks during clause stand part debates. It is not our fault if Front Benchers sometimes stray into more general territory by raising issues that one might want to raise. I mean that in the kindest way, but it applies throughout.

I sat on the Home Affairs Committee and was not especially convinced by the need for a change, but I have gone on listening. However, I am increasingly unconvinced about the need for such a large change for so many offences. Powerful and emotional arguments are made, and as soon as one says that

one is against changing double jeopardy, up pops someone to ask about the killer in one's constituency who murders children, is acquitted, then admits that he was guilty. That is an incredibly powerful argument.

At the start of the debate, the Minister rightly said that a principle was at stake. We must ask why that principle has been in law. That goes to the heart of the relationship between the citizen and the state, which is why there are double jeopardy restrictions in so many jurisdictions around the world. Once the full force of the law, the prosecution and the police—the state, as it were—has been exercised and there has been a trial, the defendant who has been acquitted should not have to face being continually pursued. I find it difficult to understand—the hon. Member for North Down has made the point repeatedly—how it would be possible to secure a fair trial after that had happened.

I heard what the Minister said about safeguards, but, in a sense, the greater the safeguards, the more difficult it will be to obtain a fair trial afterwards. The jury will sit in court thinking that the retrial has been sanctioned by the Director of Public Prosecutions and the case has been through the Court of Appeal, so a guilty verdict would seem right. Even more safeguards could be added—a papal bull or the permission of the Archbishop of Canterbury—but they are likely to make the jury believe even more strongly that the guy is guilty.

The Minister also said that we should not afford protection to the guilty, but that could be said—and is said in The Daily Mail nearly every day of the week—about virtually everything in the criminal justice system. The argument is that no one wants to protect the guilty, but everyone has a right to a fair trial. We are trying to protect the innocent. That principle should be overturned only on compelling evidence, but I am not sure that we have heard it. We must keep the pressure on the police and the prosecution to get it right the first time.

Why are these measures being taken? The answer is that in some high-profile cases, the police—and sometimes the Crown Prosecution Service—failed to do their job properly. Double jeopardy is not the main weakness of the criminal justice system. Not enough crime is being detected; not enough criminals are being caught and charged; not enough cases are going ahead to the courts; too few cases are properly prepared. For the Government, the 29 offences on the list seem to be a big solution to a huge problem, but that is not the right way to view it. I hope that we shall have a further opportunity to narrow down the number of offences on Report. That would send the message that it is vital to concentrate on what is wrong with the criminal justice system rather than undermine principles and liberties that have existed in our system for such a long time.

Finally, I take the point about DNA and murder. DNA is a new phenomenon and we must test our belief in it. It is as close as it is possible to get to

incontrovertible truth. However, sometimes it emerges later in a case. As the hon. Member for Southwark, North and Bermondsey said, the class of cases in which it is likely to emerge later is time limited, because the DNA database is becoming more efficient and sophisticated. In exceptional cases in which DNA is a factor, I can see the argument for breaching the double jeopardy protection principle. Elsewhere, certainly for the 29 offences, we should think very carefully before removing from our criminal justice system a safeguard—and a great principle of liberty—that has existed for so long and for such good reason.

I shall be brief. Picking up on the final point made by the hon. Member for Witney (Mr. Cameron), no one who listened to our debate—and, in due course, read our deliberations in Hansard—could say that we failed to give very careful consideration to the broad principles as well as the specifics of clause 62, which trigger the whole process. You were rightly generous in allowing such a broad debate, Mr. Cran.

The hon. Member for Southwark, North and Bermondsey asked about the considerations to which the Government had regard. We weighed most carefully the views of the Law Commission, the Select Committee on Home Affairs and Sir Robin Auld, and—in respect of making the change—those of almost all members of the Committee. On the time limit, the hon. Gentleman effectively answered his own question. Yes, the Government believe that to be a relevant consideration that should be taken into account—alongside other factors—by those taking decisions on a retrial.

The hon. Member for Witney asked whether the provision would present huge problems. It is difficult to estimate the figures: it all depends on the number of cases in which ''new and compelling'' evidence comes to light. In all honesty, what makes it a huge problem is the injustice that people feel when such evidence comes to light and the system works to prevent it from being tested before a jury in a court of law. At the end of the day, hon. Members should not forget that, in this operation as in all other circumstances, we have to trust the jury to reach a verdict on the basis of the evidence if a retrial is ordered. For all of those reasons, I believe that the clause should indeed stand part of the Bill.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 1.

Question accordingly agreed to.

Clause 36 ordered to stand part of the Bill.