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Simon Hughes: That is an entirely sensible suggestion, but I doubt whether it is possible, as both Bills are being considered in Committee, to join up Government so much that the point made by the hon. Member for Witney (Mr. Cameron) could be linked in to the deliberations of both Committees. However, it is a good idea and I commend it to the Minister. Our business managers may tell us that the opportunity may not come again in the near future. Members of the Committee considering the Communications Bill will be sending out little messages saying that they hope not to have another such Bill in the near future—just as some of us have said that we do not want a criminal justice Bill every year.
Hilary Benn: In answer to the point raised by the hon. Member for North Down (Lady Hermon), I am advised that the formula to be found in subsection (10) is widely used, but she is absolutely correct that, at present, the Attorney-General for England and Wales is the same person as the Attorney-General for Northern Ireland.
In relation to the point on reporting restrictions raised by the hon. Member for Southwark, North and Bermondsey, I have gladly undertaken to reflect on how to achieve analogous protection to that which currently applies in relation to trials, and I have heard, and in part responded to, the arguments made about
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general provisions relating to reporting restrictions. Many issues are involved, and the Bill is not he right place to deal with them. However, I have certainly heard the comments that hon. Members have made.
Question put and agreed to.
Clause 70 ordered to stand part of the Bill.
Clause 71
Retrial
Mr. Grieve: I beg to move amendment No. 358, in
clause 71, page 43, line 35, leave out '2 months' and insert 'one month'.
We now come to consider the procedure for retrial. Because the order comes right at the end of the investigative process, the Government clearly believe that it should be possible to move speedily from the order to a retrial taking place. It is most desirable that that should happen. This is a probing amendment.
The Minister may argue that the Government want a longer period but, as I have suggested, the amendment is designed to probe why the period of two months was chosen. I am pleased that the period is as short as that, but if it could be shortened I would be even happier, because I think that the process should move with great expedition. I should be grateful to hear the rationale behind the two-month period.
Hilary Benn: The clause allows for a period of two months between the Court of Appeal making an order for a retrial and the arraignment of the defendant on the new indictment. During that time, the prosecution will have to put together its full case against the defendant, but the clause provides safeguards, which means that the court must give leave for that period to be extended.
The amendment would reduce the period to one month, but the Government do not consider that two months is an excessive period to allow the prosecution at that stage, particularly given those safeguards, to do what needs to be done. In essence, two months is an appropriate period and one month would be too short.
Mr. Grieve: I am persuaded. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Grieve: I beg to move amendment No. 382, in
clause 71, page 43, line 42, after 'he', insert
'or in the event of his death or incapacity, his personal representatives.'.
The amendment raises a point that I raised with the Minister at a previous sitting. I said that I was slightly unhappy about the processes whereby a defendant lost the status of an acquitted person and wondered how he could regain it if the proceedings against him were then dropped for some reason. The Minister provided some reassurance that it was possible to apply for the original acquittal to be restored. I prefer to use the word ''suspended'', but he preferred to use the usual word ''quashed'', and we had a debate about that, which I do not want to revisit.
It seemed to me that, if the defendant dropped down dead between the date of the quashing of his acquittal and his rearraignment before the jury for his
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retrial, there was no mechanism for his personal representatives to have his acquittal restored posthumously. I believe that such a person is entitled to the restoration of that acquittal, or his family are, so I tabled the amendment to try to provide a mechanism whereby that could happen. It may commend itself to the Minister.
Hilary Benn: I remember the point that the hon. Gentleman raised. His amendment asks a question about what would happen if the person died—
Mr. Grieve: Or was incapacitated—
Hilary Benn: Or became incapacitated after his acquittal had been quashed, but before he had been rearraigned. Clearly, these circumstances are distinguishable from those currently provided for in the clause, as the person is no longer in jeopardy of a conviction, and there is no longer any issue of that nature to force. However, I understand the general point of principle that is being raised. The quashing of an acquittal is simply intended to allow a case to be reopened if there are compelling reasons for that. Our starting point has been that a person who dies or is incapacitated at any time after his acquittal is quashed, but before a fresh verdict is returned, should be in exactly the same position as anyone else on whom such misfortunes fall part way into an investigation or trial. No special provision is needed.
That said, I should like to reflect further on the general principle to take into account the hon. Gentleman's point. On that basis, I hope that he will withdraw the amendment.
Mr. Grieve: The Minister should think again about this point. I can see the argument. Until a person is convicted, he is not guilty of an offence. Someone who is charged with an offence in the ordinary course of events may die or be incapacitated so that the prosecution decides not to proceed. If he dies, it cannot proceed and if he is incapacitated it may choose not to. In those circumstances, he remains not guilty before the world. It is strange that we are quashing an existing acquittal, which is a statement that somebody has been tried and acquitted. The Government clearly consider that, in the event of an acquittal being quashed against a live defendant and the Crown, for some reason, coming across further information or deciding not to proceed with a retrial, that defendant is entitled not only to maintain that acquitted status but to have it restored.
In the case of an incapacitated person, as opposed to someone who is dead, the ability of personal representatives to apply on his behalf, rather than his applying himself, has some protection value for him for the future. For a dead person, it is symbolic; but such things matter. The Hanratty case was reopened in front of the Court of Appeal when it was not an issue of direct relevance to anyone other than the family and the public. There should be a mechanism, and I hope that the Government will provide one. It would be a simple amendment and it would give some reassurance as to the way in which the system will operate. Subject to that—I am grateful to the Minister for
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reconsidering it—I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 71 ordered to stand part of the Bill.
Clause 72
Authorisation of investigations
Mr. Grieve: I beg to move amendment No.383, in
clause 72, page 44, line 33, at end insert
(c) has sought leave from a judge of the Crown Court on an ex parte application.'.
The Chairman: With this it will be convenient to discuss amendment No. 384, in
clause 72, page 45, line 14, at end insert—
'(c) he has obtained leave from a judge of the Crown Court.'.
Mr. Grieve: I ask the Committee to consider a much wider issue in relation to this amendment. An inevitable consequence of the procedure on which we are embarking is that an acquitted person can be subject to a reinvestigation. Many parts of the retrial for serious offences give me a sense of queasiness. The prospect of the re-arrest and reinvestigation, property search and all the other paraphernalia of an oppressive process—what would otherwise be a deeply unlawful act by the police—against a person who has the existing protection of an acquittal gives me the greatest sense of queasiness.
It is interesting that although the Government have chosen to provide, at the end of the process, the important safeguard of the Court of Appeal procedure to decide whether a retrial should take place, the decision to allow for reinvestigation, which, one can see from reading the text of clause 72, is not a matter to be taken lightly, is an administrative one. It is left to the discretion of the Director of Public Prosecutions alone.
I have great faith in the DPP, but he is the representative of the state and the public in bringing prosecutions. That is an important issue. Just as it has been the case—although that might not apply after this Bill is enacted—that the issuing of proceedings or the laying of information requires at least scrutiny by the judiciary, or a judicial figure, before it can be embarked upon, we should not allow such a procedure to be re-embarked upon without some form of judicial scrutiny being provided.
I do not want to raise the status of this procedure to that of a detailed investigation, because I do not think that that will be required. However, my strong view is that the Director of Public Prosecutions should seek the authorisation of a Crown court judge before deciding that an acquittal is not a bar to a trial and giving his written consent to an investigation. He could go, or send a representative, to the Crown court on an ex parte application to explain the case to the judge and outline the grounds on which the reinvestigation should take place. He could then secure the court's sanction for what would otherwise be a massive intrusion into the life of an individual who was entitled to the protection afforded by his acquittal.
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4.45 pm
I take a strong view on the issue and unless I get satisfaction from the Minister, I shall press the amendment to a vote—it is that important. The judiciary is there to protect the individual's interests against the state, should it ever use its power oppressively. I am sure that 99.99 per cent. of cases will involve a 45-minute hearing followed by the granting of consent. However, judicial consent should initiate the process.
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