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Lady Hermon: Will the Minister kindly cite any other legislation in which it is stated that the DPP must take the view that
Does any other legislation on the statute book contain such words? Hilary Benn: I am advised that the consideration is one that applies in relation to the Court of Appeal. I must admit that I do not have the same difficulty that the hon. Lady does with the test that we are setting for the DPP. Clearly, we have recognised, because of the special nature of the provisions, that higher tests should be applied as a safeguard, but, as I pointed out, Column Number: 42 every day of the week Crown prosecutors see evidence that suggests that it is highly probable that a person committed an offence. Crown prosecutors take such a view regularly. For that reason, I do not see the difficulty that the hon. Lady is so concerned about.Simon Hughes: I shall ask two specific questions on the same line of inquiry. At present, the CPS and the DPP decide whether there is more than a 50 per cent. chance of conviction and whether it is in the public interest to proceed. They ask themselves if there is a more than 50 per cent. chance of someone being found guilty of the offence beyond reasonable doubt. First, what is the difference between that judgment and a ''highly probable'' judgment? My assessment is that ''highly probable'' is the higher judgment, and therefore the judgments are different. Secondly, is there a fourth test? Law Officers intervene when the DPP refers a case to them. Are there any circumstances in which the DPP's decision would be taken only after seeking advice from the Solicitor-General or the Attorney-General? The Solicitor-General may want to answer that question. Hilary Benn: I will have to reflect on the hon. Gentleman's second question. In response to the first, he is right to identify the fact that the DPP is required to apply a different test but it is for that reason that these are very special circumstances. There is no conflict. In relation to the public interest test among other things the DPP will still have to consider whether there is the possibility of a fair trial. As to the point raised by this probing amendment, if I have not satisfied the hon. Member for North Down, I hope that I have satisfied the other hon. Members who spoke that the DPP will give consideration to the matter. Mr. Grieve: I am grateful for the Minister's assurances and mindful of what he said. I am mindful, too, of the other points made in the debate. In those circumstances, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Question proposed, That the clause stand part of the Bill. Mr. Malins: I want to raise briefly a matter to which I shall probably return when we consider clause 64. Under clause 63, the prosecutor can make his application to the Court of Appeal with the written consent of the Director of Public Prosecutions, who will have to weigh the information in his or her possession before reaching a conclusion. Will the Minister take us step by step through the practical happenings that would take place in such a situation? I have in mind whether there would be an opportunity for the defendant or his counsel to make representations to the DPP to be considered alongside those made to him by the prosecutor. I assume that the prosecutor will put a file before the DPP which, by definition, will be material that has not yet been challenged, or is not subject to questioning by any defendant or defence counsel. I wonder whether the DPP, before taking a decision, will in practice be obliged in principle to listen to representations made by the counsel for the defendant—if the person Column Number: 43 exists—or some such person. I simply want to know whether the DPP is making an ex parte decision or one based not only on material from the prosecutor but on representations of any description from any other source.Simon Hughes: My question a minute ago about advice from Law Officers may fall within this general context. I have seen the representations from the Bar Council, but I am not sure that it is right, so I would be grateful for clarification. It says of paragraph 9:
I should be grateful to know whether that it is technically correct and that there can be only two trials but there could be more than two applications for a second trial. If that is the case and someone could keep coming back to knock on the door, I should be grateful for an explanation from the Minister. I may be wrong, but it is not my proposition. My final question was raised in the same submission. It is interesting and worth raising. I understand that this may be a matter of procedure in the DPP's office and more widely, but has consideration been given referring a case that has had a trigger pressed for consideration for retrial to a different police force to carry out the investigation? I believe that when there is concern about the investigation of an internal police matter or a matter of high public importance giving rise to public controversy it is the tradition and common practice for the police service that had the initial responsibility to ask for another, independent force's judgment. Again, I am asking about this rather than arguing for it, but one way of increasing confidence in the process of a second investigation is to have an independent review of the evidence by a second police force that is entirely unconnected with the initial inquiry. Mr. Stinchcombe: In respect of the hon. Gentleman's fear of repeat applications, I wonder why he is not satisfied with the wording of clause 63(5) which states:
Simon Hughes: I had seen that, and the Bar Council must also have seen it. I asked the question because it suggested that that the criterion for a second application was fresh evidence, and I wondered whether there was some sort of slip rule that allowed a further application. I have read the provision and understand it. Vera Baird: I think that the hon. Gentleman will find that the Bar Council's submissions to the Committee are about the White Paper and matters have moved on since then. I think that that accounts for his being misled. Mr. Allen: Unlike the Bar Council. Vera Baird: Quite right. Column Number: 44 I invite the hon. Gentleman to look at clause 72(7) which allows the DPP to recommend what he suggested: that the investigation be carried out by a different police force. Simon Hughes: I am grateful to the hon. and learned Lady. She may well be right. I asked for clarification only because I had been asked to do so. I understand the point that there is an option for the DPP. That is why I said that it is a matter of practice to seek an independent police force's judgment. Ian Lucas: I want to make a brief point in the hope that I may allow the hon. Member for North Down a good night's sleep. It relates to the analogous case of a defendant who appeals against a conviction to the Court of Appeal, which finds that the conviction was unsafe and unsatisfactory and orders a retrial. In such circumstances, there would have been a determination of the charge faced by the defendant by a higher court. I submit that that would not prevent a jury at a later trial from having a completely open approach to the evidence presented. The same process would apply in relation to this clause. Hilary Benn: I might now be able to answer the hon. Member for Southwark, North and Bermondsey by giving way to my right hon. and learned Friend the Solicitor-General. The Solicitor-General: Can my hon. Friend confirm my understanding of the position in regard to the request that was made by the hon. Member for Southwark, North and Bermondsey? Primary legislation can give powers either to the DPP or to the Attorney-General. If it gives powers to the DPP, the DPP exercises those powers independently, but under the superintendence of the Attorney-General, who is responsible to Parliament for the decisions, independently made under primary legislation, by the DPP. A power given to the DPP cannot be moved upstairs to the Attorney-General for a decision; it is the DPP's decision. The DPP will often discuss both general and specific issues with the Attorney-General, but the power and the responsibility remain with him or her. Is that not the case? Hilary Benn: I am happy to confirm that in every particular. Who am I to disagree with a dot or comma of it? Simon Hughes: What a double act. Hilary Benn: Absolutely. I am very grateful. To answer the question about whether the defendant would have an opportunity to make representations to the DPP, it would not be the case any more than defendants have such an opportunity in other circumstances. However, specific provision is made for representations at the next stage in the process. The point about repeated applications has been dealt with by my right hon. and learned Friend. The hon. Member for Southwark, North and Bermondsey asked about investigations conducted by another police force. Clause 72(7) says that the DPP may recommend that the investigation be conducted by officers of another force. I hope that that offers him the reassurance that he seeks. Question put and agreed to. Column Number: 45 Clause 63 ordered to stand part of the Bill.
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