The Solicitor General (Robert Buckland)
I commend the right hon. Member for Tottenham (Mr Lammy) for movingly and persuasively putting his case on behalf of his constituents and for securing this Adjournment debate. I join him in expressing my regret and sadness that the family have not yet found justice for their son.
The right hon. Gentleman has already said that we have agreed to meet separately with the Boudiaf family, the police and the Crown Prosecution Service to discuss this case in detail and, yes, to try to start rebuilding the faith that the family have clearly lost in the criminal justice system.
I am grateful to the right hon. Gentleman for providing detail on the investigation and trial. I hope to add some further context from the prosecution’s point of view. During the criminal trial, the prosecution presented substantial evidence, including three significant witnesses and closed-circuit television coverage that confirmed that the main defendant left the public house at the same time as the victim. However, one defendant was acquitted on the direction of the trial judge, and the other two defendants, including the one accused of murder, were acquitted by the jury.
Since the acquittal, as we have heard, the police have launched two media appeals for evidence in an attempt to try to find a breakthrough. Sadly, they have not been successful so far. I note the points raised by the right hon. Gentleman and by other hon. Members about the question of whether a renewed appeal for evidence should be made. I am sure that will be one of the specific questions about this tragic case that we will be able to discuss in person with the right hon. Gentleman, the family, the Crown Prosecution Service and the police. Those questions are probably most appropriately dealt with in that forum. However, I hear what the right hon. Gentleman says with the greatest clarity, and I can assure him that the matter will be given the most anxious and serious consideration. Questions that he raises about the absence of the murder weapon and the evidence of motive—all these matters—must be seriously considered, and I give him that assurance.
What I can do productively in this debate is try to address the wider points that the right hon. Gentleman raised about support for the families of victims and about the double jeopardy legislation itself. I am of course deeply saddened to hear that the Boudiaf family feel so let down by the criminal justice system. I hope we can go some way to helping them to feel that they are being heard and understood when we meet them soon, but I understand that that cannot just be solved with a single meeting. To support families such as the Boudiafs, who suffer the trauma of the loss of a loved one and the acquittal of the alleged perpetrator, the CPS, the police and the charity Justice After Acquittal published a joint protocol in January. Under these national standards of support, bereaved families are offered a series of meetings with the CPS and the relevant police force. These standards also entitle families to a joint meeting with the CPS and the police following completion of full reviews of their case. The meetings are intended to provide an opportunity for the family to learn, in as much detail as possible, what might have led to the acquittal and what their options might be. Those standards did not exist at the time of this tragedy, but I very much hope they will go some way in helping us to improve communication, not just with families such as the Boudiafs but with every family that suffers such a trauma and such a tragedy.
The right hon. Gentleman rightly cites his recent review, and I am glad to have this opportunity to commend him for the work he has done to bring it about. The Government are currently preparing their response, and the CPS will respond as part of that. I welcome his findings in the review of the overall proportionality of CPS decision making, though we know there is still much to do. The CPS is considering his recommendations very carefully indeed. His review also notes that the CPS has proved itself willing to be open to external scrutiny, which gives different communities and groups an opportunity to hold CPS officials to account and to be heard. This serves as a strong framework to deal with situations where communication has broken down between a community and the CPS, as he suggests with respect to the Algerian community in Tottenham and indeed across London.
The right hon. Gentleman also raised concerns about the double jeopardy legislation. I hope I can reassure him of the importance of this legislation and provide some detail on the way the CPS applies it, though he will understand that wider policy considerations on this topic will be for my ministerial colleagues in the Ministry of Justice to address. The double jeopardy rule that a person should not be tried twice for the same offence represents an important principle—a principle of providing finality in criminal proceedings that protects an accused person from a further trial and helps to ensure the efficient investigation of offences. One can see from a cursory view of that principle how important it is in a system where the rule of law must apply.
There are two principles arising from the common law which underpin the double jeopardy rule. The first is known by the terms “autrefois acquit” and “autrefois convict” Those principles provide a bar to the trial, in respect of the same offence, of a person who has previously been either acquitted or convicted of that offence. In addition, the courts may consider it an abuse of process for additional charges to be brought, following an acquittal or conviction, for different offences that arose from the same behaviour or facts. The law on double jeopardy was reformed in 2003 after recommendations of the Law Commission and those set out in Lord Justice Auld’s review of the criminal courts, which was published in 2001. Under the Criminal Justice Act 2003, the Court of Appeal may, for certain specified offences, quash an acquittal and order a retrial, if the Court is satisfied of three particular alternatives.
The first is that there is compelling new evidence of guilt, to which the right hon. Gentleman did indeed allude. The second is that it is in the interests of justice for there to be a retrial—for example, it must be considered whether a fair trial would be unlikely because of adverse publicity about the accused or whether the police or prosecution has acted with due diligence and expedition with regard to the new evidence, and the length of time since the alleged offence must be considered. Finally, the Court must be satisfied that a retrial does not breach double jeopardy laws in EU law—that is, that the person has not been prosecuted and had a penalty imposed for the same acts in a contracting state. I said that the three were alternatives, but in fact they are cumulative reasons for the Court to be satisfied, so I correct myself on the record.
Parliament decided that there should also be other safeguards, including that the Director of Public Prosecutions must authorise a reinvestigation of an acquitted person. Indeed, the CPS published guidance on the retrial of serious offences that sets out in full the procedure and principles for instigating a reinvestigation of an acquitted person and an application to the Court of Appeal to quash that person’s acquittal. In essence, before the police can launch a full reinvestigation of acquitted individuals, they must provide the CPS with new and compelling evidence, which the police have not yet been able to obtain in this case. Examples of such new evidence might include DNA or fingerprint tests, or new witnesses to the offence coming forward.
Under section 78 of the 2003 Act, new evidence is “new” if it was not adduced at the original trial of the acquitted person. That would in fact include evidence that was available at the first trial but was not used. That is an important qualification that should be borne in mind. New and compelling evidence of guilt is required as a judge and jury would have already acquitted the person on the basis of the existing evidence before the court.
If evidence of a flawed investigation amounted to new compelling evidence of guilt and it was in the interests of justice to proceed with a retrial for a specified offence, that could be a basis on which to refer the matter to the Court of Appeal to ask for a retrial. Reliance on such evidence would raise questions about whether it would be in the interests of justice to order a retrial. If the failure to use the evidence was because of a lack of diligence or expedition by the prosecutor, that is a factor relevant to the application of the test set out in section 79(2)(c)—namely, whether it is in the interests of justice. There is currently no evidence that that is the situation in this particular case.
I praise the right hon. Member for Tottenham again for the seriousness with which he takes his duties to his constituents and for all the work he has done on the review that bears his name, which I am sure will lead to an improvement in the way the criminal justice system serves ethnic minorities in our country. My office will be in touch with his office very shortly to arrange a meeting with the Boudiaf family, the CPS and the police to try to start to rebuild that essential trust that has sadly but clearly broken down in this case.
Question put and agreed to.