My Lords, I spent four years at an earlier stage in my career as a prosecutor in Scotland. I was one of the Lord Advocate’s relatively small team of Crown counsel, known as his advocate deputes. For much of that time, the Lord Advocate was the noble and learned Lord, Lord Mackay of Clashfern. It is a real pleasure to see him taking part in our proceedings this afternoon. It was part of my job to take decisions under his authority as to whether or not a prosecution should be brought, and to conduct the prosecution if it was decided that it should proceed. I therefore have some insight into how these decisions are taken.
Of course, there are differences between my job then and what we are contemplating now. I was working in Scotland, under its own system of criminal law, about 40 years ago. While nothing much was actually written down then, there were some well-understood principles to guide us. Much of this was based on the fact that we were acting in the public interest. We had to balance the interests of justice against the accused’s right to a fair trial. Within those broad concepts, there was room for a variety of other factors that we would take into account, guided by common sense and what we had learned by experience.
That having been said, I acknowledge that in today’s world there is the need for a more formalised system of rules. That helps to achieve consistency in decision-making, and it helps to reassure the public that these important decisions are soundly based. In the context of this Bill, I acknowledge that “the public” must include service personnel serving or who have served in operations overseas. After all, reassurance to them is what this Bill is all about.
That brings me to Amendment 3, and afterwards to Amendments 5, 6 and 28. The wording of Amendment 3 does not come as any surprise to me. It relates to the ability to conduct a fair trial, and makes a proposition that hardly needs to be said. As the noble Lord, Lord Lancaster of Kimbolton, said, this principle applies as a matter of course. I cannot imagine that the proposition would have escaped my attention had
I been responsible for taking these decisions, but of course the real point of Amendment 3 is to challenge the presumption and replace it with something else which has equivalent force, removing the hard edge of presumption.
On the whole, I am uneasy about a presumption that applies after a particular time limit. Cases vary and the facts differ from case to case; what might be absolutely right in one case could be very unfortunate in another. There is a real difference, however, between the presumption in Clause 3, which uses the word “exceptional”, and the word “materially”, which is the key word in the amendment. It is a much softer alternative. I am uneasy as to whether it really is an adequate replacement for the presumption if the aim is to get rid of the presumption and replace it with something of equal force.
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Amendments 5 and 6 do add more, especially by reference to the duration of the investigations and the standards to be applied. An important aspect of these two amendments is the undoubted need to address a problem that has caused great concern, as others have said. The points that they raise are, perhaps, not directly related to the need for a fair trial and, therefore, would not have immediately sprung to my mind as a prosecutor, but they have at their heart the interests of fairness to the person whose conduct is under scrutiny. I therefore support the proposition that these should be written into the prosecutors’ rulebook. The quality of the investigations, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said in his very forceful speech, do need to be carefully assessed and taken into account.
That brings me to Amendment 28, which I also support. The tradition in which I was brought up was firmly against the resurrection of a prosecution after an acquittal, or where an assurance had been given to the accused that no proceedings would be brought. We have to accept, however, that there are cases where compelling new evidence, such as that revealed by DNA testing, requires that further steps be taken. This amendment deserves very careful consideration and strikes the right balance. The new evidence needs to be compelling—as indeed it should—and it needs to be assessed in the light of the totality of the evidence by a very skilled judge. It serves the broader aim of improving the quality of the investigations and the time taken to conduct them. The prospect that it may well do so persuades me that that amendment should be supported.