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Mr. Stinchcombe: Might I have some clarification in respect of offences Nos. 9 and 10—intercourse with a girl aged under 13 and incest by a man with a girl aged under 13? What is the technical or political reason for the absence of reference to equivalent offences against boys?
Hilary Benn: That is an absolutely—
Mr. Grieve: Would the Minister like to give way?
Hilary Benn: If the hon. Gentleman is going to make a helpful intervention, I shall be delighted to give way.
Mr. Grieve: First, I do not think that there is an equivalent offence. Secondly, in any event, it is odd that that should be in the Bill, because it is going to be turned over by the sexual offences Bill.
Hilary Benn: That was a most helpful intervention, as I anticipated it would be. The second point is really the answer; the will be subject to further legislation that some of us may spend yet more happy hours considering in another Committee.
Motion made, and Question put, That this schedule be the Fourth schedule to the Bill:—
The Committee divided: Ayes 12, Noes 3.
Column Number: 32
Division No. 16]
AYES
Allen, Mr. Graham
Baird, Vera
Benn, Hilary
Harman, Ms Harriet
Heppell, Mr. John
Hesford, Stephen
Lucas, Ian
Mann, John
Singh, Mr. Marsha
Stinchcombe, Mr. Paul
Taylor, Ms Dari
Turner, Dr. Desmond
NOES
Heath, Mr. David
Hermon, Lady
Hughes, Simon
Question accordingly agreed to.
Schedule 4 agreed to.
The Chairman: I now intend to suspend the Committee for 15 minutes so that I can recover, even if nobody else does.
4.35 pm
Sitting suspended.
4.50 pm
On resuming—
Clause 63
Application to Court of Appeal
Mr. Grieve: I beg to move amendment No. 303, in
clause 63, page 39, line 12, leave out 'quashing' and insert 'suspending'.
The clause provides a mechanism by which the application to the Court of Appeal is made. Subsection (1) says:
''A prosecutor may apply to the Court of Appeal for an order—(a) quashing a person's acquittal in England and Wales, and (b) ordering him to be retried for the qualifying offence.''
Given the plain meaning of what is intended, that has to be read in conjunction with clause 71, which sets out what happens if a retrial does not take place. Clause 71(2) states that the retrial must take place within two months of the date of the order, and if the person has to be arraigned, leave must be given to arraign him. He may apply to the Court of Appeal to set aside the order and
''for any direction required for restoring an earlier judgment and verdict of acquittal of the qualifying offence''.
I do not want to get involved in excessive semantics, but on the whole it is quite clear that it is expected that a person may normally be able to rely on his previous acquittal. If the acquittal is quashed, it is envisaged that the trial will take place and either a verdict of guilty or a fresh acquittal will be recorded. What happens if between the date that the original acquittal is quashed and the expected date of the retrial the defendant drops down dead? There appears to be no mechanism in the Bill to restore the original acquittal, because it says that he has to apply in order to have that set aside. It is a more than esoteric point, because we have had a number of cases recently in which people have gone to the Court of Appeal seeking to have various verdicts changed posthumously. It is a small point, but I should like the Minister to consider it.
There is a slightly wider issue, which is perhaps satisfactorily answered, although I am not completely happy about it. It concerns the need to go back to have
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the original verdict brought back into force. In the absence of a trial within a set period, although we can return to look at clause 71, it is at least arguable that the original acquittal should be suspended only for the purpose of bringing a new trial. If a new trial is not brought, that original acquittal should stand without the person having to do very much at all to have it restored. The point that arose first in my mind when I read the clause was that there was no provision for the circumstances in which the defendant died, having had his earlier acquittal quashed. His relatives would argue that he ought to be entitled to rely on it.
Mr. Heath: I shall be extraordinarily brief. I am persuaded by the power of the argument of the hon. Member for Beaconsfield. It does not seem sensible to use a word that has a clear tone of finality, in the sense of quashing, instead of a word that means suspension, which is the more accurate reflection of what happens, while there is, presumably, still an assumption of innocence. I hope that the Minister will give an affirmative reply to the amendment or suggest an alternative wording that more accurately describes the circumstances of a person who has been acquitted during the period between the implementation of the procedure and any new trial.
Hilary Benn: It may be helpful if I say that we intend all the normal safeguards of criminal procedure to apply in full when a trial is conducted in accordance with the provisions of part 10, including the presumption of innocence as normal. I stress the words ''as normal'', because they mean no more and no less than that. The trials that we are considering are not different or special. They are ordinary trials being conducted as a result of special circumstances, for which the Bill makes provision.
I understand the hon. Gentleman's point, but it does not sit very easily with what I just said. It suggests some presumption of acquittal over and above the presumption of innocence, and I am not sure what a court would make of that. Clearly, we wish the trial to proceed in the usual way, on the evidence and without prejudice to the ultimate outcome, and that is one reason why the Government favour the formulation in the Bill.
However, there is another reason. I was asked whether there was any other provision in legislation for the quashing of an acquittal. The answer is, yes, in section 54(3) of the Criminal Procedure and Investigations Act 1996—I am a bit slower than my hon. and learned Friend the Member for Redcar—which makes provision for the quashing of tainted acquittals.
Mr. Grieve: That is precisely the point. Such quashing would affect tainted acquittals, but in this case the original acquittal on which the person was entitled to rely is not tainted. There is a distinction.
Hilary Benn: I hear the hon. Gentleman's argument, but the Bill provides a mechanism for enabling the subsequent retrial to take place. A means of setting aside the previous acquittal is needed, and it must interrelate with the test that will be applied to decide whether retrial can occur. In due course, we shall turn to the argument about the nature of the test and how
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high the barriers should be set. Different arguments have been advanced by Opposition Members on the question.
I understand the hon. Gentleman's point, but I am not persuaded that the amendment would provide a better mechanism. There are difficulties with the presumptions that would surround the term ''suspended acquittal'', and for that reason I resist the amendment.
Mr. Grieve: I have listened carefully to the Minister. I do not wish to get too bogged down in what might appear to be an exercise in semantics, but an important point underlies the debate.
I am satisfied with the principles that the Minister has enunciated. Indeed, it is clear from clause 71 that the original acquittal would be quashed only for the purpose of allowing a further trial to take place. In the event that a further trial does not take place, it does not appear to me to be the legislation's purpose to say that the original acquittal must remain quashed, so the matter is unresolved. Otherwise, clause 71, with its provision allowing someone to apply to have the original acquittal reinstated, would not have been included. There is a big difference between being presumed innocent, having never been tried for an offence, and having conclusively determined innocence as the result of an acquittal. I think that a person is entitled to place reliance on the original acquittal if the matter is not resolved in the later trial.
5 pm
That gives rise to the question whether the word ''quashed'' is right. Will the Minister go away and think about that again? Notwithstanding what he has just said, and although I fully understand the derivation of that word and why it was chosen, I think that we are doing something rather different here from quashing an acquittal on the basis of a trial being a nullity because it was tainted.
This may seem a small point, but what happens if a person falls down dead between one trial and the other, leaving any conclusion curiously up in the air? On the face of it, there seems to be no ready mechanism to enable his relatives to have the acquittal restored. We need to deal with that, perhaps calling it suspending, and explain in more precise terms who can apply to have the acquittal restored to the record.
Hilary Benn: I apologise for not addressing that point when I responded. It is a good question and I undertake to act on it.
Mr. Grieve: I am grateful to the Minister. This is not an argument against retrial, but my own experience suggests that trial processes are very stressful. During the course of my career, I am afraid that it has happened that clients whom I was representing were not around to stand trial by the time of their trial date. It is not unusual to have to go to court and tell the judge that the trial cannot proceed because the defendant is dead.
With the assurance that the Minister has given, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Mr. Malins: I beg to move amendment No. 312, in
clause 63, page 39, line 20, at end insert 'in person'.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 316, in
clause 72, page 44, line 28, at end insert
'in person and in writing'.
No. 324, in
clause 78, page 49, line 8, leave out subsections (2) and (3).
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