HL Deb 15 September 2003 vol 652 cc687-734
Lord Davies of Oldham

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Davies of Oldham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.]

Clause 76 [Restrictions on publication in the interests of justice]:

[Amendments Nos. 135F and 135G had been withdrawn from the Marshalled List.]

Lord Thomas of Gresford moved Amendment No. 135GA:

Page 49, line 32, leave out "may" and insert "must"

The noble Lord said: We commence further consideration in Committee on a rather soft ball. As Members of the Committee will see, the proposal is that the word "may" in subsection (1) be replaced by the word "must", and that we exclude subsection (3), which gives the court discretion to, make an order under this section only if it appears to it necessary in the interests of justice to do so".

I am really seeking an explanation of why those discretions exist. As the Bill is framed the Court of Appeal has to take a decision, that the inclusion of any matter in a publication"— when a retrial is ordered— would give rise to a substantial risk of prejudice to the administration of justice". That is the decision that the court makes. Having made that decision, in what conceivable circumstances would it be right not to order that the matter be not published? I have racked my brains in trying to think of such circumstances. What is the purport of subsection (3) that such an order should be made only if it appears to be, necessary in the interests of justice"? What other sort of publication do the promoters of the Bill have in mind?

We have tabled the amendments in a spirit of puzzlement, to find out exactly what they mean. I beg to move.

Baroness Anelay of St Johns

I rise briefly to support the amendment in its probing nature. What are the circumstances in which the Government expect the Court of Appeal would not make such an order? That is indeed puzzling.

It might be appropriate if I explained to the Committee why some amendments no longer appear on the Order Paper. Late last week, I withdrew Amendments Nos. 135F and 135G, which would have preceded this group, and I withdrew others towards the end of Thursday's business. Today I give notice that I shall not move Amendments Nos. 137A to 137D. I have given notice of that intention to the Bill team.

All noble Lords will have been concerned last Thursday to learn that two days in Committee in the Criminal Justice Bill this week were to be jeopardized—to make a very poor pun—by half that time being taken away for the Northern Ireland legislation today and half taken away for the Fire Services Bill on Thursday. Therefore, I have gone as far as I can in withdrawing some of the more probing amendments, leaving my core amendments.

It makes one feel concerned about Government business at this stage of proceedings if we are to lose significant time for debate on the Criminal Justice Bill.

The Attorney-General (Lord Goldsmith)

I take note of the remarks made by the noble Baroness, Lady Anelay. I had notice through the Bill team that she would not move the group that includes Amendment No. 137A, and that Amendments Nos. 135F and 135G had been withdrawn. I note what she says about time, but this is already the sixth day of Committee and there is more to come, so there is certainly a substantial amount of time in which to debate these issues.

I turn to Amendment No. 135GA, moved by the noble Lord, Lord Thomas of Gresford, and Amendment No. 135GB, which covers the same area—the area of the court's discretion. On this occasion, I find myself on the side wishing to uphold the court having discretion, rather than being mandated to do something. In other areas, we have found ourselves on the other side of that debate. What essentially lies behind the argument is the question of the circumstances in which the court might take the view that it was inappropriate or necessary in the interests of justice to make a reporting restriction order, notwithstanding that the other condition was satisfied.

It is not for me to envisage all the circumstances in which the court would take the view that it was unnecessary or appropriate to make such an order—particularly as we are referring to the Court of Appeal. I can certainly think of two, but I would not want them to be thought of as exhaustive. One circumstance might be where the court was of a view that there had been such publicity already and that it was unnecessary to make an order restricting further publicity. That might or might not be connected with the second reason that I have in mind as a possibility—that the court might take the view, and the defendant might himself take the view, that it was important for there to be some publicity so that other witnesses, yet unknown, might be persuaded to come forward after learning about the case through the press.

Those may not be the examples that would arise in a particular case. My fundamental point, which is the reason for resisting the amendments, is that the Court of Appeal can be trusted to have the appropriate ability to take into account all relevant factors and to decide when reporting restrictions are necessary in the interests of justice. On this occasion, I would resist trying to put a straitjacket on the Court of Appeal rather than leaving it to its very good sense and discretion.

Lord Thomas of Gresford

The noble and learned Lord is using my language when he refers to discretion, the absence of a straitjacket, and so on. That is the sort of thing that we have been saying throughout the passage of the Bill.

One reason why double jeopardy is so contentious is that the decision of the Court of Appeal might get such publicity as inevitably to prejudice a further trial. The points raised by the noble and learned Lord could be taken into account by the Court of Appeal in deciding whether there was a substantial risk of prejudice to the administration of justice. However, once it has come to that conclusion, I cannot see why there should be any further publicity, which might very well affect the fairness of a further trial.

I am grateful to the noble and learned Lord for his response and I shall take the amendment away and think about it to see whether it is a matter that I wish to return to on Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135GB not moved.]

Clause 76 agreed to.

Clause 77 [Retrial]:

Lord Thomas of Gresford moved Amendment No. 135GC:

Page 50, line 43, after "be" insert "for the qualifying offence"

The noble Lord said: I shall speak to this amendment and the others in my name and that of my noble friend Lord Dholakia that are grouped with it. I shall also consider whether the clause should stand part of the Bill at all. It is our view that the provisions are unsatisfactory in any event. At an earlier stage we opposed double jeopardy, save in very limited circumstances, as Members of the Committee are aware.

Even though there may be only a limited retrial in certain circumstances, the provisions concern me very much. When an application is made to the Court of Appeal under Part 10, and particularly under Clause 70, the application is made by a prosecutor for "quashing a person's acquittal" and, ordering him to be retried for the qualifying offence". When we look at what is to be retried, however, it seems as though the intention is to have a trial on a broader basis. Under Clause 77(1), the person ordered to be retried must have a trial, on an indictment preferred by direction of the Court of Appeal". Under subsection (5), however, that indictment, may relate to more than one offence, or more than one person, and may relate to an offence which, or a person who, is not the subject of an order or declaration under section 71". There, in terms, the Court of Appeal may make an order that goes much wider than the original application.

The other unsatisfactory element here—the Committee discussed the matter under Amendment No. 135BB—is that the new rules of evidence envisaged in the Bill will apply to that retrial. Consequently, it seems quite possible for a retrial to be ordered following the quashing of an acquittal on a different basis from that before, because the rules of evidence that apply will be different, under subsections (6) and (7).

Normally when one has a retrial, it is for the original offence and the law is taken as at the time of the original trial. That is the current situation as I understand it. Under the Bill, an entirely different procedure is to apply. Fresh evidence that would not have been admissible at the old trial will be admissible under the provisions, which makes it even more unsatisfactory and unacceptable that any retrial should take place at all. I look forward to hearing the Minister's explanation. I beg to move.

Baroness Anelay of St Johns

I shall speak to my Amendment No. 135H, which is grouped with Amendment No. 135GC. I make it clear that it is a probing amendment and that we do not support the Clause 77 stand part debate.

One can readily imagine the circumstances in which the DPP and the police might consider it convenient to try an additional person on the same indictment as a person who is to be retried, perhaps where new DNA evidence implicates both an acquitted person and his or her accomplice who had not been tried before. However, what circumstances do the Government have in mind in relation to allowing the indictment to contain additional offences in respect of the original accused person who faces a retrial? Would those offences have to be new ones of which he had never been acquitted, or would the order for retrial on one offence allow related offences of which an accused had been acquitted to be retried as well?

Lord Goldsmith

The group—Amendments Nos. 135GC, 135GD, 135H, 135HA and 135HB and Clause 77 stand part—has three aspects to it. The first relates to what is to happen when an order is made by the Court of Appeal.

There would be two consequences of Amendment No. 135GD, tabled by the noble Lord, Lord Thomas of Gresford, and Amendment No. 135H, tabled by the noble Baroness, Lady Anelay, if they were accepted. First, they would prevent the court from issuing an indictment against more than one defendant if all the defendants listed on the indictment had not previously been tried for the offence. As the noble Baroness said, that would mean that, for example, if new and compelling evidence came to light that suggested another person as well as the original suspect was guilty of the crime, it would not be possible to try the two together.

One could envisage circumstances in which the evidence that had come to light indicated not only that the original defendant was guilty, but that he had a partner or accomplice—perhaps someone engaged in a joint enterprise with him—who was guilty of the offence. There would be enormous difficulties if one prevented the trial taking place with that other person involved as well. Of course, the other person has no double jeopardy complaint to make in relation to the matter, as he has not been charged with or tried for the offence before. To prevent the indictment from covering that other defendant seems wrong. It would prolong the retrial process and delay the opportunity to reach the outcome that justice demanded.

The other effect—bringing a different charge against the original defendant along with the charge for which the Court of Appeal's leave is needed—was particularly referred to by the noble Baroness. There could be circumstances in which evidence had come to light that, in addition to the original charge, the suspect was credibly believed to be guilty of some other offence as well, one that it would be appropriate to have tried at the same time. If it were an offence with which he had not been charged and was not an alternative verdict to the original offence of which he had been acquitted, there would again be no issue of double jeopardy because the person would not have been previously tried and acquitted of that offence.

I assure the Committee that we are not attempting to get round the requirement that, where there has been a qualifying offence of which there has been an acquittal, all the safeguards and requirements that apply to that need to be satisfied before that offence can be the subject of a further charge. The amendments would prevent it being possible to add another defendant who had not previously been tried, or another charge that had not previously been the subject of an acquittal and in relation to which the principle of autrefois acquit would not apply.

The second category was dealt with briefly by the noble Lord, Lord Thomas, in relation to his Amendments Nos. 135HA and 135HB. I shall take a moment to explain them, which I hope will help the Committee to see that there is no problem behind the provisions.

The present position under Schedule 2 to the Criminal Appeal Act 1968 is that a transcript of the evidence of a witness who testified at the original trial can be admitted as evidence in retrials, which can currently be ordered; for example, where the Court of Appeal has found that a conviction was unsafe. That is subject to whether the parties agree and whether the judge is satisfied that the witness is dead or unfit to give evidence; or that all reasonable attempts to find him and secure his attendance have been made without success.

Therefore, there is already provision in existing legislation on retrials for transcripts of evidence of witnesses who testified at the original trial to be admitted. Noble Lords will be aware that there are certain other circumstances where they can be admitted, such as where it can be shown that a witness, through fear, is not prepared to give evidence, having given a qualifying statement.

The provisions of Clause 109(2), which are referred to in subsection (6), are not put in quite the same terms, but they largely cover the existing area where transcripts on retrials may be allowed. I do not want to pre-empt the important debate that I know will take place on Part 11, which relates to hearsay. The consequences of that debate, whatever they are, will follow from that. However, the provisions to which the noble Lord referred do not introduce, in terms of evidence, material other than is referred to in subsection (6), which is certain hearsay evidence; that is, transcripts in those circumstances or in the circumstance identified in Clause 107(1)(d)—a further category. That is where the court is satisfied that despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible and the witness is for some other reason not available, subject to the requirement of the court.

I am sure that the noble Lord would not wish to undermine the principles under which the courts can in certain circumstances use trial transcripts for a retrial. One consequence of his amendment would be that a trial transcript could not be used even if it pointed to the innocence of the accused. That relates to all circumstances in which transcripts are to be available. The existing law recognises that where there is to be a retrial, it is desirable to have available the evidence that was available at the first trial. It may help the accused; it may help the prosecution. That is what the provisions are designed to do.

There are of course safeguards in Part 11. We will come to those when that is debated, including in Clause 119 the safeguard that the court retains the residual discretion under Section 78 of PACE to exclude evidence in the interests of fairness. It also includes a duty under Clause 118 to stop a trial where a conviction would be unsafe, because the prosecution's case is based wholly or partly on unconvincing hearsay. We will come to all of that, I am sure, when we debate Part 11. At this stage, the principal issue is whether in certain circumstances it should be possible at the retrial to use transcripts of the evidence that was given at trial, as the existing law allows.

Amendment No. 135HB would delete Clause 77(7). This is a rather technical point and perhaps I may briefly draw your Lordships' attention to Clause 124, which updates the provision for the admission of transcripts and depositions in retrials that can currently be ordered by the Court of Appeal; for example, where a conviction is quashed because it is unsafe and a Court of Appeal orders a retrial. The provisions of Clause 124, as noble Lords will see, reflect precisely that in Clause 77(6).

It has long been a principle that witness depositions are not admissible as evidence at retrials if the witness gave evidence at the original trial. As Members of the Committee will know, in certain circumstances a deposition may be admissible at an original trial, but if the witness gave evidence at the trial, that evidence, rather than a deposition. would be admissible. It may be the only occasion on which the evidence has been tested—or certainly extensively tested—during the course of the trial by cross-examination. We intend simply to apply the same principle to retrial—that the deposition, which might otherwise be admissible, should not be admissible in place of the provisions relating to transcripts of evidence. I hope that that answer gives the noble Lord some comfort.

Finally, Clause 77 stand part appears in the group. We have previously debated at some length in Committee the objections in principle that have been raised to this part of the Bill. Clause 77 is critical to the double jeopardy provisions because without it the rest of that part does not work. I do not intend, on this occasion, to rehearse the arguments that have already been made in Committee. Maybe we will come back to the issue at a later stage, but that is not for me to say. To put our position on the principle of double jeopardy briefly, there has been a consensus for reform. The Lawrence report, the Law Commission, the Home Affairs Select Committee and Sir Robin Auld backed the reform in principle. It will apply only in the most serious cases—we have yet to debate what the final list of cases should be—and will be subject to important safeguards. It will apply only in exceptional circumstances. Those, in brief, are reasons in principle for supporting it. I give way to the noble Lord, Lord Renton.

5 p.m.

Lord Renton

I should have spoken sooner and before the noble and learned Lord rose. Perhaps I may make a few points now which I am sure are relevant to the Question whether Clause 77 stand part In my opinion, it must stand part. We would be leaving a terrible void in the Bill if we did not have it or something like it. Between now and Report, I hope that the noble and learned Lord or the Minister responsible will consider some minor redrafting. In four subsections, (1), (3), (6) and (7), instead of referring to "retrial", the text refers to "trial". It must refer to "retrial" for the sake of clarity and to avoid confusion. Also, in subsection (4), reference is made to, a bar to his being tried for the qualifying offence". That must obviously read "retried". I hope that those simple drafting amendments will be made on Report.

There is a further matter that should delay any decision which your Lordships might wish to make about Clause 77. First, I refer to subsection (6)(a), where we find that, Evidence given at a trial pursuant to an order under section 71(1) or (3) must he given orally if it was given orally at the original trial". It then says, unless …section 109 applies". I believe that we must consider Section 109 very carefully and rather sceptically because it enables hearsay evidence to be produced which is not admissible at present. We must consider that controversial point very carefully as it would, of course, affect the meaning of Clause 77.

Secondly, I want to make one other point that arises from what the noble and learned Lord said. He referred very properly to the effect of Clause 124 on this clause. That is another matter which would affect the final composition of Clause 77.

Lord Goldsmith

I am grateful to the noble Lord for his intervention and for his support for Clause 77 to stand part. I shall carefully consider—and have carefully considered—his comments on the drafting. At present, it appears to me that the matter is sufficiently clear but, as always, I shall ensure that it is examined.

I turn to the noble Lord's comment on subsection (6). which refers to Section 109. Previously I may not have been as clear as I should have been about this matter Largely, Section 109 replicates the existing procedure for the admission of transcripts at retrials which can be ordered. That is not the case completely but, as I said, under the Criminal Appeal Act 1968, transcripts of witnesses who gave evidence at the original trial may be admitted in certain circumstances, including a number of the circumstances set out in Section 109.

Baroness Kennedy of The Shaws

Perhaps I may alert my noble and learned friend that, before the Report stage, I shall table an amendment seeking to leave out the whole of Part 10 of the Bill. I give notice that the entire issue of double jeopardy is, in my view, a departure from principles of a profound kind, and this Chamber should be given the opportunity to vote against such a departure. I shall have that amendment placed before this House prior to Report so that no one is taken by surprise.

Lord Goldsmith

We would not be taken by surprise if we were given notice that the noble Baroness was going to oppose the Question whether clauses stand part. I believe that she made her position perfectly plain on a previous occasion.

Lord Thomas of Gresford

Perhaps I may deal, first, with the offence aspect. As I pointed out to the noble and learned Lord when I moved the amendment, the application to the Court of Appeal under Clause 70 is for an order that the person whose acquittal is quashed should be retried for the qualifying offence. That is what the application is for—it is for a retrial for the qualifying offence.

What concerns me—particularly having regard to the noble and learned Lord's reply—is that a person could be acquitted of offence x, have that acquittal quashed, be ordered to be retried for offence x, but then, on the indictment that is then produced for the retrial, find that he is charged with offence y arising out of the same facts. If the noble and learned Lord can give me an assurance that the retrial that will take place will be a retrial of the qualifying offence—namely, offence x—that would greatly assuage my fears in relation to the provisions of subsections (1) and (5). Perhaps the noble and learned Lord would like to consider that point first.

5.15 p.m.

Lord Goldsmith

I shall consider that and I shall ensure that I write to the noble Lord. But if the noble Lord is concerned that the defendant might be tried in relation to some other offence, then, in any event, there is no need for the Court of Appeal to give leave for that. The defendant can be tried for the other offence if he has not been acquitted of it or if there are circumstances where there might have been an alternative verdict to the original offence for which he was tried. But if it was not an alternative verdict to the offence for which he was tried, then, in any event, the doctrine of autrefois acquit would not prevent him being tried for it.

Lord Thomas of Gresford

As I understand the principle of autrefois acquit, it refers not simply to the offence for which the person has been acquitted but to any offence that arises out of the same facts. That is my understanding, but perhaps we can give the matter further thought.

I am grateful to the noble Lord, Lord Renton, for following my thoughts on the evidence aspect. It really does appear—particularly when one has regard to Clause 107(1)(d)—that the retrial will take place under different and separate evidential rules. Those rules include the possibility of hearsay evidence being admissible. Therefore, if a person has been acquitted of an offence at one moment, his acquittal is quashed, he is retried and he then faces an entirely new set of principles for that retrial. That seems to me to be fundamentally unfair. It is one further reason for supporting, to a large extent, the application that the noble Baroness, Lady Kennedy of The Shaws, will make on Report.

Lord Carlisle of Bucklow

Before the noble Lord sits down, perhaps I may ask the noble and learned Lord the Attorney-General a question. In his reply to the noble Lord, Lord Thomas, did I understand him to say that one effect of the noble Lord's amendment would be that it would be impossible to add a further defendant to any separate indictment when a retrial had been ordered? If I did hear him say that, is he imagining circumstances in which a further defendant could he added so that a person who had been tried and acquitted as a single defendant could then have an order made for his retrial and find himself one of several defendants? That would probably substantially change the nature of the case in which he was involved.

Lord Goldsmith

I did say to the noble Lord, Lord Thomas, that one of the effects of his amendment would be to prevent an additional defendant being added to the indictment. The example that I gave would he one in which the further new and compelling evidence—because new and compelling evidence there would need to be in order to justify the application to the Court of Appeal—might show that the defendant had not been, as had perhaps been alleged at trial, acting alone but acting with another. One could envisage circumstances in which the evidence now showed in a compelling way that a murder or some other serious offence that had been committed was in fact the result of two or more people acting together. In those circumstances, it would be right that the defendant should be tried not on his own but with the other person or persons who the new and compelling evidence now indicated were also responsible for the crime.

Lord Carlisle of Bucklow

Would there be any duplication on the adding of a further defendant, or does the noble and learned Lord the Attorney-General envisage that that may happen in any case? Alternatively, would it be the case that, for some reason, the other defendant was not available to be tried at the time of the original trial? It seems to me that, as the noble and learned Lord the Attorney-General has accepted, it will change substantially on his retrial the nature of the case against a man who has been acquitted.

Lord Goldsmith

Again, I shall give further thought to this matter. In answer to the noble Lord, Lord Carlisle of Bucklow, there are two points. First, these other defendants have no defence against being tried in any event. They have not been tried before. Therefore, there is no reason that they can put forward based upon the fact of the first defendant's acquittal to say that they should not be tried. Whether they have some other grounds for saying that they should not be tried arising from the circumstances of the case is not a matter for today.

Secondly, the Court of Appeal will have to be satisfied that it is right for the order to be made in relation to the first defendant. So, both of them are covered, it would seem to me, by those points.

Lord Carlile of Berriew

Can the noble and learned Lord assure the Committee that in its final form the law will be so drawn that the Court of Appeal will know that there are other defendants who will or may be tried? If that is not the case, how can the Court of Appeal decide whether it is fair for the defendant whose acquittal has been quashed to be tried with the other defendants?

Those of us who conduct criminal cases have been in many trials in which the evidence against co-defendants has been the subject of applications about the fairness of the trial against one's client. In such circumstances one often makes applications for severance. They are not usually successful but very, very occasionally they are. If an order has been made by the Court of Appeal that the previously acquitted defendant should be retried, the retrial judge will be very inhibited against ordering severance unless the Court of Appeal has had the opportunity of considering all the circumstances, including that there will be co-defendants in the retrial.

Lord Goldsmith

I hear what the noble Lord says. I shall not, while on my feet and without consideration or advice, give the assurance for which he asks. I shall certainly consider the point. I think he makes more of it than is justified but I shall certainly consider it and come back to the issue one way or another.

Lord Thomas of Gresford

Would the noble and learned Lord also take into account the fact that the new and compelling evidence could not be derived from the confession of a co-accused because that would not be evidence against a person whose acquittal was quashed? Nevertheless, as the noble Lord, Lord Carlisle of Bucklow, pointed out, the presence of co-defendants giving evidence, perhaps in a cut-throat defence, would have a marked difference upon the way in which that trial was carried out.

The more one goes into these provisions for abolishing the centuries old rule of double jeopardy. the more one realises the wide possibility of miscarriages of justice arising. No doubt we shall come back to that.

Lord Goldsmith

The question of what happens when there are co-defendants and defendants is something which exists at the moment. It does not arise as a result of the retrial provisions in this part of the Act.

Baroness Kennedy of The Shaws

Perhaps I may press the noble and learned Lord to reply to the query from the noble Lord, Lord Thomas of Gresford, on the Benches opposite, about whether in retrial, perhaps years after events, new rules of evidence or newly abandoned rules of evidence will mean that a very different kind of trial will take place. It may be that one would start reviewing all kinds of cases and—in the light of the fact that if the Bill goes through, previous convictions and hearsay will now be evidence in cases—reconsider many past convictions in the light of new rules of evidence. Is that what will happen?

Lord Goldsmith

We have had this debate. It arose in relation to Clause 72, which makes plain under subsection(5) that, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person". That has been the subject of discussion. It does not arise under this clause. What arises under this clause is the admissibility of transcripts of evidence which has been given at trial. That is all that arises under this clause. It may be, I know not, that we shall come back to Clause 72 at a later stage but I do not intend to go over those arguments again now.

Lord Thomas of Gresford

Clearly, we shall have a huge debate on this on Report. I note that the noble and learned Lord said, "at the moment". I am sure that he will reflect upon the answers he has given. I do not intend to press the amendment for the moment and beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 135GD to 135 HB not moved.]

[Amendment No. 135J had been withdrawn from the Marshalled List.]

On Question, Whether Clause 77 shall stand part of the Bill?

Baroness Kennedy of The Shaws

I indicated on a previous occasion that I had telephoned the Public Bill Office about tabling amendments. However, my intention to table an amendment to delete Part 10 would fulfil my objective rather than opposing the Question whether Clause 77 stand part. Therefore, I shall not press it.

Clause 77 agreed to.

Clause 78 [Authorisation of investigations]:

Baroness Anelay of St Johns

moved Amendment No. 136:

Page 52, line 22, leave out "and"

The noble Baroness said: In moving Amendment No. 136 I shall speak also to Amendment No. 137. As is obvious from even the most cursory glance, Amendment No. 136 is simply a technical drafting amendment to make sense of Amendment No.137, which is consequential upon and part and parcel of Amendment No. 136. Indeed, when the amendments were tabled in another place, perhaps the Public Bill Office there was a little less precise than our own very careful people here. So I am sure that we have the superior approach in this House.

We have been discussing safeguards which are required in this very sensitive and difficult area; that is, the relaxation of double jeopardy rules. Amendment No. 137 addresses the question of whether there should be judicial authorisation of a reinvestigation into an acquitted person's case. Indeed, we say that there should be just such a safeguard.

Clause 78 requires the police to obtain the consent of the Director of Public Prosecutions before taking certain major steps in the reinvestigation of cases where new evidence has come to light or where there are reasonable grounds to believe that further investigation will give rise to new evidence.

The whole process of retrial does indeed give rise to many concerns, some of which have been expressed today, but which were expressed in greater detail at our previous session on 17th July. If we do go ahead with relaxing the rules on double jeopardy, we on these Benches say that we must have the highest level of safeguards to ensure that the process works as fairly and effectively as possible. It is our view, therefore, that the DPP should seek the authorisation of a Crown Court judge before deciding that an acquittal is not a bar to a retrial and giving his written consent to investigation. The DPP could make an ex parte application to a judge and secure the court's sanction of the process, which, as we have heard on previous occasions, is bound to have a drastic effect upon the lives of the acquitted person and, indeed, upon the victim and all the families involved.

The changes to the rules of double jeopardy would make a massive alteration to our basic principles that currently govern the grounds on which someone can be arrested and investigated. When my honourable friend Dominic Grieve raised this matter in another place as long ago as January of this year, the Minister suggested that the problem could be solved by the use of judicial review of the DPP's decision. Since January we have taken advantage of the Government's rather leisurely stroll through the Bill until it now reaches a race towards the end. I have in mind that, indeed, the Government delayed the second and third days on Report in another place because they put in such a substantial number of new clauses. Some were for very good reasons, but there has been some delay at earlier stages of the Bill.

We have considered the Minister's response since that early stage and we are still not convinced that judicial review provides the appropriate safeguard. It is too cumbersome and comes too late. We prefer the route of judicial control because that refers the matter to a person who is seen to be independent of the Government in a way that the DPP is not. However great that person's abilities may be, he will still be seen by some as a state administrator making a highly sensitive decision.

Our amendment does not introduce some kind of cumbersome mechanism: it is the reverse; it is intended as a simple safeguard, which we hope fends off the need for time-consuming judicial reviews and unnecessary stress on those who should perhaps not be brought for retrial. I beg to move.

5.30 p.m.

Lord Goldsmith

It may be helpful to say a few words about Clause 78 and what it covers in order to put the amendment in context. Clause 78 allows the police to reinvestigate an acquitted person in respect of the qualifying offence of which he has been acquitted only with the consent of the Director of Public Prosecutions.

The DPP must consider in giving his consent—subsections (4), (5) and (6)—whether the person's acquittal acts as a bar to a retrial before giving his consent to reinvestigate. He must not give his consent unless he is satisfied that—subsection (6)—as a result of the investigations there is, or is likely to be, sufficient new evidence to warrant the conduct of the investigation and that it is in the public interest for the investigation to proceed.

The steps which therefore require consent are set out in subsection (3)—the arrest or questioning of the acquitted person; a search of him or his premises; a search of a vehicle owned by him; a seizure of anything; or taking his fingerprints or a sample from him. The application itself is subject to the further safeguard that the application must be made—subsection (4)—by an officer who, if we are talking about the Metropolitan Police or the City of London Police, is of the rank of commander or above, and in any other case of an assistant chief constable.

Those safeguards appear to us to be very substantial. They come of course before the safeguard of the requirement that there is ultimately an application by the DPP that he has considered the case personally and which is accepted by the Court of Appeal. We do not see—and are not persuaded to accept the amendment therefore—the necessity and the desirability of adding an additional requirement that the DPP should have to seek the leave of a Crown Court judge.

Lord Carlile of Berriew

I am very grateful to the noble and learned Lord for giving way. To enable the Committee to determine its views on these amendments, can he explain what is meant in Clause 78(3)(a) by "question him"? Does it mean question him under caution or does it include such methods as merely asking informal questions or obtaining a witness statement without his being questioned under caution? It would perhaps seem logical that no form of questioning should be permitted without the consent of the DPP under the scheme that the Government have in mind.

Lord Goldsmith

At the moment I read it as I suspect the noble Lord reads it. It states "question him" without qualification. But I shall take the issue away to see whether there is any suggestion to the contrary. If that is right, it assists in demonstrating the significance and strength of the safeguards that are being put in place.

The point on the amendment is this: the Director of Public Prosecutions is more than senior and experienced enough to take a decision on whether the police should, in re-opening an investigation into an acquitted person, take the steps which are set out in subsection (3). Having him do that provides a very important but sufficient safeguard to prevent the acquitted person being harassed by the police, because that is what one seeks to protect the acquitted person against. At this stage of the reinvestigation, it is quite appropriate for the decision to be taken by the prosecuting authorities rather than the courts.

To involve a Crown Court judge in proceedings at this stage would make the proceedings more cumbersome. The layers of safeguard that have already been included are more than sufficient. As to the critical decision of whether or not a retrial should be permitted, of course we do not leave it to a Crown Court judge to decide. That will be, after personal consideration by the Director of Public Prosecutions, for the Court of Appeal. At the end of the day, that judicial scrutiny will be a very important safeguard for the individual. So I cannot accept the amendment and invite the noble Baroness not to press it.

Lord Lloyd of Berwick

I am grateful to the noble and learned Lord for giving way. He was a little too quick for me at the beginning because I had intended to support both this amendment and the next substantive one. With the permission of the Committee I shall do so now. I was waiting to hear whether there would be any support for the amendment from the Liberal Democrat Benches, but that did not happen.

The Committee may remember that I do not oppose Part 10 of the Bill, root and branch, as do some noble Lords on these Benches. But I see a risk of great injustice in individual cases, especially if the power to order a retrial is to be exercised retrospectively under Clause 69(6)—for example, in respect of a committal before the Act comes into force.

I gave an example of a case of a man acquitted of a crime five or 10 years ago, before the Act comes into force. He then makes a clean breast of the issue in private to his wife. In my view—a view I expressed at the time—it would be quite wrong for such a person to be deprived of his existing—accrued—right not to be tried again by retrospective legislation. Surely, that should be axiomatic.

When he came to reply on this point, the noble and learned Lord the Attorney-General did not, with great respect, deal with the issue very satisfactorily because he did not deal with it as a point of principle, which of course it is. Instead he was content to give an example from the other end of the spectrum—the Dunlop case. In that case—the Committee may remember—the man admitted within a few days of his acquittal that he had committed the perfect crime and bragged about it in a public house. The noble and learned Lord the Attorney-General said that he would not be able to look the mother of that victim in the face unless he could tell her that the Act would apply to her.

The contrast between the two cases—the case I put before the Committee and the one put before the Committee by the noble and learned Lord the Attorney-General—shows as clearly as anything could the need for these amendments. There will not be, as the Attorney-General accepts, many of these retrospective cases. Indeed, I doubt whether there will be many cases under these retrial proceedings altogether. But what surely is needed right at the outset is a means of distinguishing the cases where there is some merit—the example given by the noble and learned Lord—and the cases where there is no merit, the kind of case, for example, which I cited. That decision should be taken long before the case reaches the Court of Appeal and should be taken before ever the investigation under this clause starts, because the investigation itself in a case where there is no merit could cause grave injustice.

An ex parte application to the judge at the very start of the investigation seems the ideal way to achieve that objective—to distinguish at the outset between the cases where there is merit and those where there is none. I therefore hope that, although the Government have said that they will not, they will accept the amendment or at least reconsider it. It could not possibly do any harm; indeed, it could do nothing but good as it would take the initial and all-important decision from the hands of the Director of Public Prosecutions and place it in the hands of a Crown Court judge, where it belongs.

Lord Mayhew of Twysden

Perhaps I may seek similar indulgence, not having risen to speak al the right time. I support the effective amendment in this grouping of two, but for a slightly different reason from that principally advanced by my noble friend on the Front Bench. I do not think that there is any view in the country that the Director of Public Prosecutions is other than independent of the Government. We all know that he is by statute superintended by the Attorney-General, but that is by the Attorney-General acting in his judicial capacity, not in his capacity as a partisan member of the Government.

I support the amendment because I suggest that it is needed to provide a measure of protection for the director. He is head of the Crown Prosecution Service and one criterion that will have to be fulfilled if the process is to work is that the evidence that is sought to be adduced was not reasonably available to the CPS, the police or the prosecutor at the time. It is a measure of necessary—or at least desirable—protection for the DPP, who is to that extent slightly parti pris, that the process cannot proceed to the next stage unless it has the consent of a judge of the Crown Court obtained on an ex parte application. I suggest to the noble and learned Lord the Attorney-General that on that basis the amendment warrants acceptance.

Lord Goldsmith

I hope that I did pause and that the noble and learned Lord, Lord Lloyd of Berwick, missed the opportunity, but, given that both he and the noble and learned Lord, Lord Mayhew of Twysden, commented on it, I say simply that I shall not deal again with retrospection. I am sorry that the noble and learned Lord thinks that I did not deal with it satisfactorily; that may be simply because we take different views on the matter. If we return to it we shall have another opportunity.

I am grateful to the noble and learned Lord for confirming that, as he knows from his experience holding the office which I am privileged to hold now, the Director of Public Prosecutions is most certainly independent of government and can be trusted to make difficult decisions. That is the final point. The noble and learned Lord suggests that the director might welcome the protection of going to a Crown Court judge.

Well, the director and his senior staff have to take many difficult decisions all the time. They are frequently misunderstood, sometimes unpopular; it is the nature of the public prosecution service that they must make those difficult decisions, applying the evidence objectively, considering it impartially and deciding in accordance with the statutory tests of the Code for Crown Prosecutors. This case is no different.

5.45 p.m.

The Lord Bishop of Worcester

I am grateful to the noble and learned Lord the Attorney-General for giving way. I do not quite understand why the Government are reluctant to insert a judicial figure into the process, given that that would make clear that the Government regarded a decision to undertake a second investigation of an acquitted person as much more serious than one to undertake a prosecution of a person who has not yet been acquitted. The fact that the Director of Public Prosecutions is a person who can be trusted to make difficult decisions is not in question. What is in question is how we make clear, if the Bill is to be enacted, how much more seriously we regard a decision to re-open a case—it will be a serious case by dint of what the Government have in mind.

Lord Renton

Before the noble and learned Lord replies, it should be borne in mind that the amendment suggests that the leave of a judge of the Crown Court should be obtained on an ex parte application. That makes it very different from many judicial decisions, which must be made after hearing both sides.

Lord Thomas of Gresford

Before the noble and learned Lord replies, the value of the provision—my initial reticence should not be taken as a sign that we do not support the amendment—is that it makes it absolutely essential for the director and the police to make their case without going to question the acquitted person once again, so that their case does not depend on a re-questioning of the acquitted person but that everything is in place before the DPP's consent is given. That is the value of it.

Lord Goldsmith

The amendment seems to have gathered much support in all parts of the Committee—except, I make clear, the Government Benches, where we remain resistant to it.

I answer the right reverend Prelate in this way: the provisions make very clear that this is a more serious business. In order to prosecute someone, even for a serious offence, one does not need a senior police officer—a commander or assistant chief constable—to decide that investigations can be opened; one does not need the Director of Public Prosecutions personally to decide whether the case should go ahead; one certainly does not need a Court of Appeal to decide that it is a proper case before an indictment can be lifted. There is more than enough in the Bill to illustrate how importantly the Government take the need for safeguards; the safeguards are there.

Baroness Anelay of St Johns

I am grateful to all Members of the Committee, who have brought different perspectives to what I thought was a fairly modest and straightforward amendment. As the debate gathered speed, I gathered education, but also resolve. In the development of a relaxation of a rule by which we are all entering new territory, no one can be thought to have experience. However good a DPP is, this will all be new for everyone taking part. This is one safeguard that we need at the beginning of the process. I intend to test the opinion of the Committee.

5.48 p.m.

On Question, Whether the said amendment (No. 136) shall be agreed to?

Their Lordships divided: Contents, 132; Not-Contents, 112.

Division No. 3
Ackner, L. Burnham, L.
Addington, L. Byford, B.
Allenby of Megiddo, V. Caithness, E.
Anelay of St Johns, B. Campbell of Alloway, L.
Astor, V. Carlile of Berriew, L.
Astor of Hever, L. Carlisle of Bucklow, L.
Attlee, E. Carnegy of Lour, B.
Biffen, L. Cavendish of Furness, L.
Blatch, B. Chalfont, L.
Bowness, L. Clement-Jones, L.
Bridgeman, V. Colwyn, L.
Brooke of Sutton Mandeville, L. Cooke of Thorndon, L.
Brougham and Vaux, L. Cope of Berkeley, L. [Teller]
Craigavon, V. Moynihan, L.
Crathorne, L. Newby, L.
Crickhowell, L. Newton of Braintree, L.
Denham, L. Northbrook, L.
Dholakia, L. Northesk, E.
Dixon-Smith, L. Oakeshott of Seagrove Bay, L.
Eden of Winton, L. O'Cathain, B.
Elliott of Morpeth, L. Onslow, E.
Erroll, E. Palmer, L.
Fearn, L. Park of Monmouth, B.
Ferrers, E. Patel, L.
Fookes, B. Pearson of Rannoch, L.
Forsyth of Drumlean, L. Peel, E.
Fowler, L. Peyton of Yeovil, L.
Freeman, L. Phillips of Sudbury, L.
Gardner of Parkes, B. Plumb, L.
Geddes, L. Prior, L.
Glentoran, L. Roberts of Conwy, L.
Goodhart, L. Roper, L.
Gray of Contin, L. Rotherwick, L.
Greenway, L. St.John of Bletso, L.
Griffiths of Fforestfach, L. St John of Fawsley, L.
Harris of Richmond, B. Saltoun of Abernethy, Ly.
Hayhoe, L. Seccombe, B.[Teller]
Hodgson of Astley Abbotts, L. Selborne, E.
Hooson, L. Selsdon, L.
Howe, E. Sharp of Guildford, B.
Hunt of Wirral, L. Sharples, B.
Shutt of Greetland, L.
Hylton, L. Simon of Glaisdale, L.
Jacobs, L. Skelmersdale, L.
Jenkin of Roding, L. Smith of Clifton, L.
Jopling, L. Stern, B.
Kennedy of The Shaws, B. Stewartby, L.
Kingsland, L Strathclyde, L.
Lane of Horsell, L. Swinfen, L.
Linklater of Butterstone, B. Taverne, L.
Liverpool, E. Tebbit, L.
Lloyd of Berwick, L. Thomas of Gresford, L.
Lucas, L. Thomas of Walliswood, B.
Luke, L. Tordoff, L.
Lyell, L. Trumpington, B.
McColl of Dulwich, L. Tugendhat, L.
MacGregor of Pulham Market, L. Ullswater, V.
Waddington, L.
Mackie of Benshie, L. Wade of Chorlton, L.
McNally, L. Wakeham, L.
Maddock, B. Walmsley, B.
Mancroft, L. Walpole, L.
Mar, C. Weatherill, L.
Marlesford, L. Wedderburn of Charlton, L.
Mayhew of Twysden, L. Wilcox, B.
Methuen, L. Williams of Crosby, B.
Mowbray and Stourton, L. Worcester, Bp.
Acton, L. Campbell-Savours, L.
Ahmed, L. Carter, L.
Amos, B. Christopher, L.
Andrews, B. Clark of Windermere, L.
Archer of Sandwell, L. Clarke of Hampstead, L.
Ashton of Upholland, B. Clinton-Davis, L.
Bach, L. Cohen of Pimlico, B.
Barnett, L. Corbett of Castle Vale, L.
Bassam of Brighton, L. Crawley, B.
Berkeley, L. Davies of Coity, L.
Bernstein of Craigweil, L. Davies of Oldham, L.[Teller]
Blackstone, B. Dean of Thornton-le-Fylde, B.
Blood, B. Desai, L.
Borrie, L. Dixon, L.
Bragg, L. Donoughue, L.
Brooke of Alverthorpe, L. Dormand of Easington, L.
Brookman, L. Dubs, L.
Brooks of Tremorfa, L. Elder, L.
Burlison, L. Evans of Parkside, L.
Evans of Temple Guiting, L. Merlyn-Rees, L.
Farrington of Ribbleton, B. Mitchell, L.
Faulkner of Worcester, L. Morgan, L.
Filkin, L. Morris of Aberavon, L.
Fyfe of Fairfield, L. Orme, L.
Gale, B. Parekh, L.
Gibson of Market Rasen, B. Patel of Blackburn, L.
Golding, B. Pendry, L.
Goldsmith, L. Pitkeathley, B.
Gordon of Strathblane, L. Prys-Davies, L.
Goudie, B. Puttnam, L.
Gould of Potternewton, B. Radice, L.
Grocott, L.[Teller] Ramsay of Cartvale, B.
Harris of Haringey, L. Rea, L.
Harrison, L. Rendell of Babergh, B.
Hilton of Eggardon, B. Richard, L.
Hogg of Cumbernauld, L. Roll of Ipsden, L.
Hollis of Heigham, B. Rooker, L.
Howells of St. Davids, B. L. Sainsbury of Turville, L.
Hoyle, L. Sawyer, L.
Hughes of Woodside, L. Scotland of Asthal, B.
Hunt of Kings Heath, L. Shelton, L.
Irvine of Lairg, L. Simon, V.
Islwyn, L. Strabolgi, L.
Jay of Paddington, B. Taylor of Blackburn, L.
Jones, L. Temple-Morris, L.
Jordan, L. Tomlinson, L.
King of West Bromwich, L. Turnberg, L.
Lea of Crondall, L. Turn of Camden, B.
Lipsey, L. Varley, L.
Lofthouse of Pontefract, L. Warwick of Undercliffe, B.
Macdonald of Tradeston, L. Watson of Invergowrie, L.
McIntosh of Haringey, L. Whitaker, B.
McIntosh of Hudnall, B. Whitty, L.
MacKenzie of Culkein, L. Williams of Elvel, L.(Lord President of the Council)
Marsh, L.
Massey of Darwen, B. Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.58 p.m.

Baroness Anelay of St Johns moved Amendment No. 137:

Page 52, line 23, at end insert ", and (c) he has sought leave from a judge of the Crown Court on an ex-parte application.

The noble Baroness said: Amendment No. 137 is consequential. I beg to move.

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 79 [Urgent investigative steps]:

[Amendment No. 137A not moved.]

Clause 79 agreed to.

Clause 80 agreed to.

Clause 81 [Bail and custody before application]:

[Amendments Nos. 137B and 137C not moved.]

Clause 81 agreed to.

Clause 82 [Bail and custody before application]:

[Amendment Nos. 137D not moved.]

Clause 82 agreed to.

Clauses 83 to 89 agreed to.

Baroness Anelay of St Johns

moved Amendment No.137E. After Clause 89, insert the following new clause—

  1. CHAPTER A1 89A CRIMINAL EVIDENCE RULES 13,808 words, 3 divisions