HL Deb 17 July 2003 vol 651 cc1076-90

7. A reference in this Schedule to an enactment includes a reference to the enactment as enacted and as amended from time to time.

The noble Baroness said: Amendment No. 135 takes us to the subject of the limited exceptions, to which the noble and learned Lord, Lord Lloyd of Berwick, has just referred. It is grouped with Amendment No. 135ZA, tabled by the noble Lord, Lord Thomas of Gresford, which takes an even more limited approach than mine.

We turn to the difficult issue of which offences should be covered by the retrial provisions. The Government lists the offences in Schedule 4. As I have mentioned already, we feel that the range is far too large. It means that double jeopardy will not apply to a limited series of cases but to a range which is far too wide.

Why did the Government decide on that list? Why did they expand it during proceedings in another place? After all, the Law Commission recommended that only murder should be subject to the relaxation of double jeopardy. The argument for including murder is clearly that we should accept that someone who has a propensity to kill other people is a serious public menace. No doubt one reason that weighed heavily on the mind of the Law Commission was that there is an enormous public interest in ensuring that such people may never strike again.

We have tried to take a pragmatic approach to the matter. In Committee and on Report in another place, my honourable friends fully debated which offences should fall within the new rule relaxing double jeopardy. We have considered the matter further since those debates. I had the opportunity briefly to pass that information to the Attorney-General, which is reflected in the nature of our amendment.

We remain convinced that retrial should be permissible only in serious cases, but, as is evident from our amendment, we go further than the Law Commission. We say that Schedule 4 should be confined to murder, rape and genocide. We are trying to take into account the public interest question and address the most serious of offences. Also, from a purely practical point of view, it is essential that the police and prosecution are given the opportunity first to demonstrate that the new proposals work fairly and effectively before we even consider rolling out the abandonment of double jeopardy more generally.

As I said at the beginning of the Committee's proceedings today and in speaking to Amendment No. 133P, bringing a second prosecution will not be evidentially straightforward. Before we raise and then dash the hopes of victims and remaining relatives, we should ensure that the new proposals deliver both fairness and public benefit in the most heinous of offences only.

I have drafted the list of offences in the amendment to take the debate further than was possible in another place. In discussing the matter with my colleagues there, it became apparent that we would need to consider whether manslaughter should be added as a final item on the list. We are still considering that. I shall he interested to hear what the Attorney-General has to say in response to that—and, of course, the views of all other noble Lords.

Our underlying view is that the Government have not yet got the balance in Schedule 4—their shopping list—right. It is a recipe for failure and disappointment. That would simply be wrong—wrong for the public interest and wrong for all those who appear before the courts in future. I beg to move.

Lord Thomas of Gresford

I shall speak to Amendment No. 135ZA, which is grouped with the amendment moved by the noble Baroness. If there is to be any invasion of the principle of double jeopardy, it should go no further than that recommended by the Law Commission. Its report was published in March 2001 after two rounds of consultation. Why, if the Law Commission—which is supposed to advise the Government on criminal law matters—limited the proposal as it did, have the Government gone so much wider, with a list of 31 offences?

The Law Commission said: The approach we have decided to adopt is to see whether we can identify specific offences within the larger category of offences potentially attracting a life sentence which we believe are inherently serious enough to justify the application of a new evidence exception. We have come to the conclusion that under the present law the only such offence is murder. The main reason for this conclusion is the widespread perception, which we share, that murder is not just more serious than other offences but qualitatively different. The effect of this difference is that murder satisfies the test we have proposed for the scope of any new exception, namely whether a manifestly illegitimate acquittal sufficiently damages the reputation of the criminal justice system so as to justify overriding the rule against double jeopardy". Those are the Law Commission's views. We do not think that the Government should go beyond them, if the rule is to be breached at all. Consequently, our amendments are limited to murder, soliciting murder—conspiring in soliciting murder—and genocide; that is, murder on a large scale.

Lord Lloyd of Berwick

For reasons that I mentioned earlier, I support the amendment tabled by the noble Lord, Lord Thomas, in preference to that of the noble Baroness, Lady Anelay.

Earl Russell

I am very glad that my noble friend Lord Thomas has tabled Amendment No. 135ZA. 'The great danger with any provision of this sort—any relaxation of the rule—is that one creates an opportunity for vendetta. The use of the law as a vendetta in many societies in this century and others has not been unknown. It can be a very formidable form of vendetta. For that reason, I am surprised that the Government have decided to include an offence such as rape on their list of offences that may be tried a second time.

My noble friend's amendment at least has the advantage of introducing certainty and excluding, with the exception of murder, those elements that are most liable to give rise to vendettas. That is a very sensible precaution.

Lord Hylton

As a mere layman in these matters, I support the principle of restricting the list as much as possible. On those grounds, I prefer the amendment tabled by the noble Lord, Lord Thomas, to that moved by the Conservative Front Bench. However, if we had to vote on the matter, I would support either.

Lord Goldsmith

I indicated earlier that I wanted to listen carefully to what was said in this part of the debate, so I am grateful to those who have spoken—albeit briefly, but I know from the previous longer discussion what lies behind many of the points made.

It is necessary to bear in mind—if I may respectfully say so, the observations of the noble Lord, Lord Thomas, do not—that the Government received advice not just from the Law Commission but from Lord Justice Auld, who has also dealt with the issue. He recommended that the provision go beyond that suggested by the Law Commission to cover all offences that carry a maximum penalty of life imprisonment. That is helpful advice, but, with respect to Lord Justice Auld, there is a difficulty with it in that all common law offences carry a maximum sentence of life imprisonment. It seemed to the Government that more certainty was necessary. We have therefore sought to identify offences considered to have a particularly serious impact on the victim, their family or on society more widely, which, for the most part, carry a maximum penalty of life imprisonment.

I respectfully differ from the noble Earl, Lord Russell, in considering the importance of including rape, for example. One can imagine cases—sadly, we have had some—where individuals have carried out campaigns of rape against women in one part of the country or throughout it. I would not regard such cases as a vendetta. I agree entirely that the law should not be used as a means of a vendetta. If we are to extend the principle of being able to come back on cases, as we believe we should, those cases should be included also.

Other offences fall within the list. However, as my honourable friend Hilary Benn said in another place, where you draw the line is a matter of judgment. The noble Baroness, Lady Anelay, specifically asked my view in relation to manslaughter. The Government's view is that manslaughter should appear on the list. Indeed, there may even be difficulties in not having it appear. For example, there could be sufficient evidence and a compelling case to retry a person for murder who had previously said that he was not at the scene at all. When that case comes before the court, although it seems clear that the defendant was the person who killed, for the first time, the question might arise whether that person should be convicted of manslaughter on the grounds of diminished responsibility. I am not sure that I am right about that, but it needs further consideration. Manslaughter can be a very serious crime if the circumstances have been demonstrated to make it out in the way proposed.

I recognise that a matter of judgment is involved. Although the Government's schedule has been drawn up in the belief that it covers the right offences, recognising that an offence is on the list does not mean that all the cases that fall into that category will be sent to the Court of Appeal—far from it. I would like to consider what has been said today and return to the matter on a future occasion.

Baroness Anelay of St Johns

My response will be brief after that generous offer from the noble and learned Lord. This is a key issue with regard to the safeguards that should hedge around double jeopardy, so I am grateful to him for his offer to consider the matter again. We will. I am sure, meet the noble Lord, Lord Thomas of Gresford, between now and Report to consider the position further.

In the view of responses earlier from the Minister and amendments tabled by the noble Lord, Lord Thomas of Gresford, it is not appropriate for me to move Amendment No. 135A. That will disappear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135ZA not moved.]

Schedule 4 agreed to.

Clause 70 [Application to Court of Appeal]:

[Amendments Nos. 135ZB to 135 AB not moved.]

Clause 70 agreed to.

Clause 71 agreed to.

Clause 72 [New and compelling evidence]:

Baroness Anelay of St Johns moved Amendment No. 135B:

Page 47, line 34, after "not" insert ", and could not reasonably have been,"

The noble Baroness said: The amendment poses a question with regard to the new and compelling evidence that, as defined in the Bill, would enable the relaxation of the rule of double jeopardy to take place and for a retrial to occur. It would appear from the drafting of the clause that the new and compelling evidence is evidence that was available at the time of the original trial, but was simply not adduced at that trial. It may have been in the hands of the prosecution or, potentially, in the hands of the police but not the prosecution. It may have been in existence, but due to an inadequate investigation—not only through someone's fault—it was not available at the time of that first trial.

The question that goes to the heart of the matter is what would happen if the prosecution had the evidence and, for whatever reason, chose not to use it? Should it then be used to trigger a retrial? The prosecution may not have realised the significance of the evidence, or they may have decided that, although it should be significant, it would not, at that time, come up to proof; and, therefore, did not use it.

At this stage of the Bill's progress and given the time of day and the impending Recess, I move the amendment as a probing amendment to ask the Government to develop further their argument for why they have come up with this definition, instead of the original definition. which was intended to be a matter of new scientific evidence. The case has been made by many bodies that there should be a reasonableness test and that evidence should be brought forward only if it was not reasonably available at the time of the first trial. Other noble Lords have already said today that they might prefer it if it were the case that evidence should be adduced only if it had come to light subsequently and was not in anybody's hands at the time of the original trial.

This is an attempt to probe the Government on why they are going down that route. What evidence have they to show that that is the proper way forward? I beg to move.

Lord Thomas of Gresford

If it does not cause difficulty to the noble and learned Lord the Attorney-General, I shall speak to Amendment No. 135BA, which is on the same topic, although it is not grouped with the noble Baroness's amendment.

In Clause 73(2)(c), the question, whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition is set out as merely something that goes to the discretion of the Court of Appeal, when it is considering whether it is in the interests of justice. It should not be one factor among others. The Court of Appeal should not be able to say, "There are other matters that allow us to ignore that aspect of the case. Although it was discoverable on an earlier occasion, in our discretion, we will order a fresh trial".

It is more important that the evidence that was discoverable by "reasonable and diligent inquiry", in the terms of my amendment, should not be the "new and compelling evidence" referred to in Clause 72. My amendment would make it an absolute condition that the Court of Appeal could not order a new trial on the basis of evidence in respect of which the police investigation had been a failure or had been inadequate. I shall move that amendment in due course.

Lord Carlisle of Bucklow

In the case of new evidence as regards the defence and their subsequent application for a retrial, I have always understood that such evidence was not available to the defence to be adduced at the time of the trial. This definition of "new" goes far wider than that. I had assumed that, by "new evidence", the Government meant evidence that had since become available but was not available to the prosecution at that time. I hope that the noble and learned Lord the Attorney-General will reconsider the definition of "new evidence". It appears to cover anything that the prosecution do not choose to use at the time.

Earl Russell

I support my noble friend's amendment. I mentioned just now the danger that the provision would be used for vendetta. One of the cases that I have in mind concerned a young man who was a member of my seminar. He had been accused of murder, tried and acquitted. I may add that the young man came from West Belfast. The murder was the murder of a policeman. The police clearly were firmly of the opinion that the person was guilty. At every possible opportunity, for years afterwards, they used to arrest him for anything that they could possibly throw at him.

Policemen who believe firmly in someone's guilt of murdering another policeman very naturally tend to feel rather strongly about it. If those police had had the opportunity—believing, as I understand they did, firmly in the young man's guilt—simply to go through their files, dig up anything they found and persuade someone that this was reasonable and compelling—many of the safeguards are ones that cannot really adequately be established before cross-examination—I am convinced that that would have happened. I am not convinced that this sort of repeated return to something is in the interests of justice. I am not persuaded that this repeated trawling of police files is in the interests of justice. I think the requirement that it should be new evidence is a sensible requirement and would help to keep the scope of these provisions within boundaries. I hope that the noble and learned Lord will look on this with some favour.

Lord Neill of Bladen

I hope that the noble and learned Lord the Attorney-General will have deduced from what I said when I spoke before that I think this definition of new evidence is inadequate. It is a lower test than is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement here. I do not have a very strong view as to which of the two propositions should be accepted—namely, that of the noble Baroness, Lady Anelay, or that of the noble Lord, Lord Thomas. But it is something that needs to be looked at. If there is to be new evidence, the definition must be tightened up.

Lord Goldsmith

Clause 72 requires that, there is new and compelling evidence against the acquitted person in relation to the qualifying offence". It defines evidence which is to be regarded as "new and compelling" for the purposes of this part of the Bill. The definition of new evidence, as it stands in the Bill, is straightforward, factual and objective. Clause 72(2) states that, Evidence is new if it was not adduced", at the original trial. I emphasise that that is a threshold test. The Bill provides further safeguards by requiring the court to consider whether the evidence is compelling, as set out in Clause 72, and whether it would be in the interests of justice for a retrial to be ordered, in Clause 73.

It is important to note that Clause 73 provides the significant safeguard at which, fundamentally, both amendments are aimed. It is for the Court of Appeal to decide whether the interests of justice are such that the order for a retrial should be made. In reaching that view as to the interests of justice, the Court of Appeal is required to take into account whether there was any lack of due diligence or expedition on the part of the police or prosecution, either in their original proceedings or in the new proceedings. I draw attention in particular to Clause 73(2)(c) and (d), which will specifically guard against the criticism that a poor police investigation can simply lead to a "second bite of the cherry". It is in no one's interest that that should happen. It is clearly in everyone's interest that the police investigation and the prosecution should be put on the best basis possible at the time of the first trial. Given that this part of the Bill provides only a limited exception, there is no incentive for the police or the prosecution not to do that.

The Government believe that the best way of achieving the protection is as has been set out in Clause 73 rather than in the way set out in the amendments proposed by the noble Baroness, Lady Anelay, and the noble Lord, Lord Thomas of Gresford.

6.30 p.m.

Lord Neill of Bladen

Would the noble and learned Lord be good enough to consider this question? Turning first to Clause 73(2)(c), all it requires is that the court should have regard to such new evidence. It does not say that it would be a knock-out blow either way. It simply provides that having regard to it should be one of the factors in answering the question in subsection (1): if in all the circumstances it is in the interests of justice … to make the order". The noble and learned Lord appears to be arguing that if it is a case where there has been negligence in the past resulting in the evidence not being adduced, that by itself would lead to a new prosecution. Is that the case? I am not sure. It is simply one matter to which the court must have regard.

Lord Goldsmith

Indeed it is a matter to which the court is required to have regard. Reverting to our previous discussions, I do not doubt that the court would look very hard indeed at that particular matter.

Earl Russell

Does the noble and learned Lord agree with the view once expressed in this Chamber by the noble and learned Lord, Lord Simon of Glaisdale, that the words "have regard to" mean almost exactly nothing?

Lord Goldsmith

I am not aware of the occasion on which the noble and learned Lord, Lord Simon of Glaisdale, made that remark. I have enormous respect for him, not least because he is also a former Law Officer; indeed, the oldest surviving former Law Officer since the sad demise of Lord Shawcross. I do not know the context in which he said it and I certainly would assert that it is significant, important and of the greatest moment that Clause 73(2) requires the court to have regard, in considering the interests of justice, to a number of specific matters.

I have no doubt that the Court of Appeal—in which I have great confidence, as do all noble Lords—will consider this properly and take it into account. I do not accept that it would need always and in every case to be a knock-out blow, but that would be for the Court of Appeal to determine. Ultimately the Court of Appeal will be concerned with what is required in the interests of justice. Those interests of justice certainly will require a consideration of the position of the defendant and whether on the first occasion the trial ought to have been dealt with in a different way, but that may not be the only consideration to which the Court of Appeal will have regard. However, that is for the court to decide.

The noble Lord, Lord Carlisle of Bucklow, suggested that at this stage I should deal with the point that this is a more generous test than that applied to the defence. With respect, I do not believe that that is right. The defence will be able to appeal. For example, the Criminal Complaints Review Commission may bring before the Court of Appeal new evidence which could have been adduced before, but which had not been. Indeed, that is a circumstance in which matters are brought back to the Court of Appeal and it would be surprising if it were not. It would be very surprising if the law stated that where a miscarriage of justice had taken place because of the incompetence of the lawyers acting for the defendant, there was no means by which that could he corrected by the Court of Appeal.

I think that the noble Lord might have had in mind the principle which applies in civil cases, but which is an entirely different circumstance. So this is not more generous to the prosecution; quite the reverse, it remains a much narrower test.

However, I sought to suggest that there are three objections to the proposed amendment. First, it would give rise inevitably to extensive legal debate about whether any particular piece of evidence could or should have been produced by the police at an earlier stage. Secondly, it would replace an objective threshold test with a more subjective one, which might result in the exclusion of evidence which had not previously been put before the court, but which might otherwise be regarded as compelling.

Thirdly, it is right that the Court of Appeal should consider the nature of any evidence which has not previously been adduced, but which might be compelling in terms of the case against the acquitted person, and reach a decision about whether it is in the interests of justice and the interests of the whole community, for a retrial to proceed, taking all the relevant factors into account.

The right way of providing an appropriate safeguard against those who are looking for a second bite of the cherry is to include this important requirement in Clause 73. That is the answer both to the amendment of the noble Baroness and to the amendment of the noble Lord, Lord Thomas.

Viscount Colville of Culross

I am not troubled that there is a very strict test about what is compelling or that there is a very strict burden on the Court of Appeal under Clause 73. However, if we are trying to tighten up the matter, I wonder whether this really is new. If it is not new, we have a very loose and slack test.

The difficulty with the Bill as it stands is that there is nothing to suggest that this really is new—it has just not been adduced before. Although the failure to adduce it may not be due to incompetence, the fact is that it has not been adduced. I would be much happier about the whole of Part 10 if "new" meant new.

Lord Thomas of Gresford

I am grateful to the noble Viscount, Lord Colville, for his support of the principle behind my amendment. If one stands in the Court of Appeal on behalf of an appellant who has been convicted and produces evidence which was available to the defence at the time of trial, one will get absolutely nowhere. I do not see why the prosecution should be in a better position.

I heard what the Attorney-General said about bringing back a case years later, but that is a very different proposition and it is not easy to get over the threshold involved. The appeals of right following a conviction do not permit one to introduce evidence which is not new. It seems to me that the Government must accept something along the lines of these proposed amendments.

Baroness Anelay of St Johns

I am grateful to all noble Lords who have taken part in this debate on what is a core issue as regards the safeguards that one hopes will operate to ensure that. where the double jeopardy rule is relaxed, it is done in a proper manner.

We are seeking to ensure that a reasonableness test is hedged around the production of new evidence. I take the point of the noble Viscount, Lord Bledisloe, with regard to—I have said it again. I apologise to the noble Viscount, Lord Colville of Culross. I called him by the same wrong name on a previous Bill. One day I shall get it right.

I take the point of the noble Viscount. Lord Colville of Culross, about how new is "new". I recall that when I had insurance on a computer it was on the basis that if anything went wrong and it was not capable of being repaired one could have a new part. When the monitor failed and could not be repaired, it turned out that the insurance company defined "new" as something that was new to me—in other words, renovated and not new. The noble Viscount hit the nail very firmly on the head: what indeed is to be "compelling new evidence".

I am grateful for the way in which the noble and learned Lord has put the Government's case. They consider that the reasonableness test for new and compelling evidence comes within the wider remit of the Court of Appeal decision on the interests of justice in Clause 73(2)(c).

I shall certainly consider that matter further. It may be that the noble and learned Lord has satisfied me about it. I should like to discuss it further with him during the summer. I may not need to come back to it on Report. but I shall have to consider the matter carefully. My objective is exactly the same as the Government's in this respect. I want to ensure that there can be no excuse for sloppy investigations by either the police or, subsequently, by the prosecutor which would mean that there could be a greater opportunity for retrial than is strictly necessary. As our objectives are clearly the same, this is one of the provisions on which we should be able to come to an agreement rather than having difficulty with it on Report. In that spirit, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135BA not moved.]

Lord Thomas of Gresford moved Amendment No. 135BB:

Page 48, line 4, leave out subsection (5).

The noble Lord said: This amendment is simply designed to obtain an explanation from the Government as to what this provision means. I do not understand the purpose of it, and I really cannot have any attitude to whether I want to see it in the Bill until I understand it. I beg to move.

Lord Goldsmith

This provision states, in effect, that previous admissibility is not relevant to the new evidence. In answer to the question of the noble Lord, Lord Thomas of Gresford, it is to ensure that any new evidence is assessed in accordance with current rules and standards of evidence and that in any potential retrial, those standards and rules of evidence would apply. Evidence which is otherwise new and compelling would not be excluded from consideration of the court solely because it would not have been admissible at some previous date. That does not of course mean that the overriding interests of justice test disappears—that is still for the Court of Appeal to determine. That is the answer to the question as the noble Lord asked for it.

Earl Russell

Does not this answer the question of the noble Viscount, Lord Colville of Culross, with devastating clarity; namely, does "new" mean new?

Viscount Colville of Culross

It is relevant to this because a later part of the Bill changes all the rules about admissibility. So I assume that the Government's intention is to allow a second trial to take place in which evidence that would previously have been ruled out is now made admissible under this legislation. That is a fairly incestuous situation. It may be part of the design of the Bill, but it seems that it takes two bites of the cherry—what was available before is not new in the sense that I have described in that it was there but it was not admissible under the then rules. It now becomes new, it would appear, because the rules have been changed.

Lord Thomas of Gresford

I now understand what that clause is about—not, I regret to say, as a result of anything the noble and learned Lord the Attorney-General said but because of what the noble Viscount, Lord Colville, said a moment ago.

There seems to be a "not" missing from the provision—it is probably a misprint. The provision might make sense if it said, "For the purposes of this section, it is irrelevant whether any evidence would not have been admissible in earlier proceedings against the acquitted person and is now admissible because of the provisions of this Bill". I ask the noble and learned Lord the Attorney-General to consider whether there is an omission in the provision.

Lord Goldsmith

I do not think there is. To say it is irrelevant whether any evidence would have been admissible is exactly the same as to say it is irrelevant whether any evidence would not have been admissible.

Lord Thomas of Gresford

We can enter into a discussion about this at a later stage. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 agreed to.

Clause 73 [Interests of justice]:

The Deputy Chairman of Committees (Lord Grenfell)

I must advise the Committee that if Amendment No. 135BC is agreed to, I cannot call Amendments Nos. 135C or 135D.

[Amendment No. 135BC not moved.]

6.45 p.m.

Baroness Anelay of St Johns moved Amendment No. 135C:

Page 48, line 10, leave out "existing circumstances" and insert "the circumstances existing at the time the court is considering the application"

The noble Baroness said: In moving Amendment No. 135C, I will, with the leave of the Committee, speak also to Amendment No. 135D. These are probing amendments which relate to the requirement under Clause 73 that the Court of Appeal must decide that, it is in the interests of justice to have a second trial.

As we have already debated in part previously, Clause 73(2) lists a number of criteria to which the court must have regard when considering this issue. The first is whether existing circumstances make a fair trial likely. The amendments are alternatives to the Government's drafting, and would change that phrase. Amendment No. 135C would change it to whether, the circumstances existing at the time the court is considering the application", make a fair trial likely. Amendment No. 135D would change it to whether the existing circumstances, and the circumstances that appear to the court to be likely to exist at the time of the retrial", make a fair trial likely.

Veterans of the Courts Bill will recall the debate earlier this year when one noble Lord expressed dissatisfaction with the use of the word "current" in a series of amendments that I tabled. I am delighted to see that the noble Lord who objected—in the most courteous way, as he always does—is here in his place today. That is the noble Lord, Lord Clinton-Davis. He rightly pulled me up on the use of the word "current" because, as he said, "Current, when?"

The same arguments could be advanced about the use of the word "existing", without further explanation. I have therefore tabled the amendments to clarify that what the Government intend is what is stated in Amendment No. 135C—that in deciding whether or not there can be a fair retrial, the Court of Appeal should consider only the circumstances existing at the time the application for a retrial is made, and not the circumstances that may, or may not, actually come to exist by the time the retrial takes place. No doubt, if that is what the Government intend, the Minister will say that it would be wrong for the Court of Appeal to engage in speculation on what such circumstances might or might not be. There may well be force in that argument. However, that brings me to my next question.

Will the Minister clarify whether the trial judge at the retrial will retain his or her powers to halt the retrial on the grounds that there could not be a fair trial—perhaps because of something that had happened in the intervening period between the Court of Appeal considering the application for a retrial and the retrial taking place? According to Clause 77(2), that period could be as much as two months after the application is made, or even longer if leave is given in exceptional circumstances. I see problems in that.

If the trial judge has the power to halt the retrial on the grounds that a fair trial could not be held, will the judge be able to take a different view from that of the Court of Appeal, even if no new issues have arisen between the Court of Appeal hearing and the retrial? On the other hand, will the trial judge be bound to some extent by the Court of Appeal's consideration of whether a fair trial could be held? I suspect, as there is nothing in the Bill to fetter what would ordinarily be a matter for the trial judge's discretion, that the judge will not be so bound, but I would welcome clarification of the point, which is especially important in the context of any potentially prejudicial publicity between the Court of Appeal hearing and the retrial itself. I beg to move.

Lord Goldsmith

The noble Baroness finished her speech by referring to the risk of prejudicial material being published between the decision of the Court of Appeal and the time of the trial. She is right to raise the issue, which the Government have already considered. It is an important point, which is why later clauses. particularly Clause 76, provide for important reporting restrictions that the Court of Appeal can impose.

Amendment No. 135C would turn the words "existing circumstances" into, the circumstances existing at the time the court is considering the application". I am not entirely sure whether it is intended to read the two amendments together. Perhaps because I was not party to the debates over the meaning of the word "current", I do not see the difference between saying, as the clause does, that the court must have regard to, whether existing circumstances make a fair trial unlikely", and saying whether, the circumstances existing at the time the court is considering the application", make a fair trial unlikely. I am not sure that I see the difference at the moment. It may be that what the noble Baroness has in mind is that one should consider the two matters together so as to indicate that the court must also have regard to the future. She was right to anticipate that we would be concerned about imposing too great an obligation on the Court of Appeal to speculate as to what the position may be. But, having said that, in deciding whether existing circumstances make a fair trial unlikely, I would expect that the Court of Appeal would have regard to what the previous publicity, and the publicity at that date, had been by way of example.

In deciding at this time whether a fair trial would be unlikely, there is a degree of speculation inevitably involved in what the Court of Appeal is doing in the sense that it is saying today, "Do we think a fair trial tomorrow would be unlikely?" But we would be against imposing this duty of speculation in the way that the noble Baroness proposes.

Earl Russell

Does it make the distinction the noble Baroness is trying to make if a large body of material is in the hands of a newspaper and one has good reason to believe that the newspaper intends to publish that material as soon as the case comes to court, but not if it does not? Is that in fact a clear distinction between the two amendments?

Lord Goldsmith

The noble Earl may be right. That may be what the noble Baroness has in mind. Obviously she must speak for herself on that; I cannot.

I must respond to the specific questions that the noble Baroness asked me. She asked me whether the trial court would retain the ability to consider whether a fair trial was possible, having regard to events which had occurred between the hearing in the Court of Appeal and the trial. Save to the extent that those had already been taken into account by the Court of Appeal. there is nothing in the Bill, as the noble Baroness says, to say that the retrial court does not retain its usual discretion to decide that a fair trial is not possible. Therefore, subsequent events would be, it seems to me, open to the subsequent court to consider.

The noble Baroness asked whether the second court could reach a different view on the same material from the view that the Court of Appeal had reached. I believe that the answer to that is no because once the Court of Appeal had reached a considered view that a fair trial was likely, notwithstanding things that had happened before, it would not be appropriate for the second court to reach a different view. Whether that is a matter of judicial self-restraint or whether it is implicit in the Act, I would need to consider, but I have done my best to answer the question.

Baroness Anelay of St Johns

I apologise for my momentary inattentiveness when the noble and learned Lord was trying to give me what was, indeed, a very helpful answer. However, I was being sounded out whether this was the appropriate time for proceedings to finish. As the noble and learned Lord might expect, I was rather relieved to find that the Government agreed that it was.

Lord Goldsmith

We believe that we have another five minutes. Perhaps we can deal with the next amendment, which does not look very long.

Baroness Anelay of St Johns

In that case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135 D not moved.]

Clause 73 agreed to.

Clause 74 [Procedure and evidence]:

Baroness Anelay of St Johns moved Amendment No. 135E:

Page 48, line 29, after "served" insert "in person"

The noble Baroness said: This is another probing amendment. It relates to the service by the prosecution on the acquitted person of the notice of application to the Court of Appeal for a retrial. Clause 74(2) provides that the service must be effected within two days of the application being made. My amendment would simply require the service to be in person. 1 would welcome the Minister's comments on the circumstances in which service would normally be effected. I do not need to go into details of the problems about service, because the noble and learned Lord and I have had discussions on the matter on the Crime ( International Co-operation) Bill. I would be grateful if he could explain what the implications would be here.

The service of such an application will inevitably be a testing experience for the recipient who, in these circumstances, should not be expecting it. Having been acquitted, they are hardly now likely to find the tap on the shoulder. Will the notice contain details about how the person can obtain legal advice? Will such a person be entitled to free legal assistance for the purposes of the application itself? Do the Government intend to specify a standard form of notice, or will its contents be left to the discretion of the prosecutor? I beg to move.

Lord Goldsmith

The amendment appears to require the prosecutor to serve in person on the suspect the notice of an application of the Court of Appeal to quash a suspect's acquittal. We do not see the need for that at all. We do not see the reasoning behind having a crown prosecutor in person serving a notice of application on the suspect. Of course, proper arrangements will be made by the courts for the service of such notices, but there is no need in our view to insert this provision into the Bill.

Baroness Anelay of St Johns

As the noble and learned Lord implied, it is not my intention that prosecutors should have in addition to their ordinarily busy lives the job of making the service. The amendment was to probe what the process will be for service. I will consider it further before Report. However, we are going into new realms, where service may occur many years after the original acquittal. so there could be some problems with regard to process in this case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 74 agreed to.

Clause 75 agreed to.

Lord Davies of Oldham

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at two minutes before seven o'clock.