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Baroness Blatch: This new clause would require the Court of Appeal to allow an appeal against conviction whenever it decides to receive fresh evidence which could potentially render the conviction unsafe without considering whether the evidence in the court's view does render the conviction unsafe. As I understand it, the reasoning behind this new clause is that the Court of Appeal is not an appropriate tribunal to consider the weight of fresh evidence alongside all the evidence presented to the jury at the original trial. It is suggested that that task should be performed by a jury, or not at all.

The effect of the amendment would be to limit the powers of the Court of Appeal when faced with new evidence which, if believed, would go to the safety of the conviction: it would have either to order a retrial, or, if that were not possible, quash the conviction without ordering a retrial. Both of those powers are available to it now. The third option—which this amendment would remove—is to dismiss the appeal after deciding for itself that the new evidence does not render the conviction unsafe.

I do not agree that the Court of Appeal is never in a position to assess the weight of new evidence in the context of the evidence heard by the jury. It has shown itself over many years to be capable of performing that function wisely and fairly. I hope the Court of Appeal will always bear in mind its power to order a retrial in fresh evidence cases. But in some cases a retrial simply will not be possible.

There will also be cases where the new evidence may be rebutted by other new evidence adduced by the prosecution. In those cases in particular I do not think it is unreasonable for the court to have a power to assess the strength of the new evidence rather than a duty to allow appeals automatically, without any consideration of their merits.

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I do not think that it would be right for the court to quash a conviction, and release an appellant with no prospect of a retrial, without having considered whether or not the conviction is safe. I therefore hope that the amendment will not be pressed.

Perhaps I may mention the case of Stafford, which was raised by the noble and learned Lord, Lord Scarman. In our view, the Stafford judgment was a confirmation of the intention of Parliament. Section 2 of the Criminal Appeal Act 1968 requires the court to allow an appeal if it believes that the conviction is unsafe or unsatisfactory. That is a clear indication that it is for the Court of Appeal, taking account of all the circumstances of the case, to form its own view about the safety of the conviction. In 1992 the European Court of Human Rights held that the exercise of this power was indeed compatible with Article 6 of the European Convention on Human Rights, which guarantees a fair trial.

None of us wants mistakes and we were all saddened by the experience of the Guildford Four. But I am not absolutely certain that this amendment is the way to address that particular problem.

Lord Mishcon: Will the Minister tell the Committee what principle is involved in the following matter, which is our tradition in the law? It is that on a trial on indictment at first instance it is the judge who rules purely on the law and he directs the jury that they must not take into account anything that he says in regard to a finding of fact. The facts must be found by them. Why is that principle a good one and yet a Court of Appeal can decide on a question of evidence and fact? What is the principle involved in that?

Baroness Blatch: The noble Lord has the advantage over me because he is extremely learned in these matters. I am not sure that I, as a total layperson, am able to give him the rationale underpinning that principle. I hope that he will allow me to think about what he has said, research the matter for him and come back with a considered answer at the next stage of the Bill.

Lord McIntosh of Haringey: Perhaps I may refer the Minister to the last sentence of her reply. I did not have an opportunity to make a note, but I understood her to say that she was not absolutely certain that this amendment was the right way to tackle the problem. She identified the problem, as we all have, as being the risk of a miscarriage of justice, such as that which took place in respect of the Guildford Four.

I have never heard in a ministerial brief the phrase, "I am not absolutely certain that the amendment is the right way to do it". If the Minister is not absolutely certain that the amendment is the right way to do it, is there not a strong possibility in her mind and the minds of those in her department that it might be the right way to do it? Without taking anything back, would the Minister care to give some kind of commitment to the noble and learned Lord, Lord Scarman, that she will think about the matter further between now and the Report stage and will discuss it with him?

Baroness Blatch: The noble Lord and I have jousted across the Dispatch Box on many occasions and therefore he will know well that I do not always stick absolutely to my brief. On this occasion I was saying—and I had

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departed from my brief when I said it—that inevitably, however secure the system and however secure we try to make it, there will always be mistakes. I was saying in my own mind that I was not certain that this was the way to address it.

In response to the point made by the noble Lord, Lord Mishcon, in relation to the principle underpinning one stage of the process as opposed to another, I have said that I shall take that away and think about it. I shall, as I always do between the stages of a Bill, take away everything that has been said during the course of the debate and think about it.

6.15 p.m.

Lord Scarman: I say at once that I do not intend to divide the Committee on this amendment. However, I ask the Minister to bear in mind the extraordinary importance of the point that is raised. It may well be that the proposed new clause by itself is not the way to achieve the result. However, I shall demonstrate the fact that something needs to be done by using other people's words and adopting them as part of my argument.

Many Members of the Committee have read the report of the Royal Commission. I wish to show the real hesitation and doubt that was in the minds of its members and therefore, with permission, I shall read the relevant parts of paragraphs 62 and 63 of the report. Paragraph 62 reads:

    "In Stafford v DPP the House of Lords held that on the proper construction of the statute it was the task of the Court of Appeal when deciding the impact of fresh evidence to decide whether it thinks the verdict is unsafe or unsatisfactory. It should consider the weight of the evidence... This ruling has been criticised, notably by Lord Devlin, who argued that it usurped the function of the jury. In our view, the criticism made by Lord Devlin and others has force insofar as it concerns a decision by the court to hear and evaluate itself the fresh evidence and despite it to reject the appeal".

That is the point with which I am dealing. The report continues:

    "In our view, once the court has decided to receive evidence that is relevant and capable of belief, and which could have affected the outcome of the case, it should quash the conviction and order a retrial unless that is not practicable or desirable. The Court of Appeal"—

listen to these words, my Lords—

    "which has not seen the other witnesses in the case nor heard their evidence, is not in our view the appropriate tribunal to assess the ultimate credibility and effect on a jury of the fresh evidence. It should normally not decide the question of the weight of the evidence itself unless it is satisfied that the fresh evidence causes the verdict to be unsafe, in which case it should quash the conviction".

Paragraph 63 illustrates why the Royal Commission does not take it all the way that I take it and therefore, in fairness to the Committee, I shall read the relevant part of that paragraph. It states:

    "Where a retrial is impracticable or otherwise undesirable, there is an argument"—

that is mine—

    "for saying that the Court of Appeal should not usurp the function of the jury but should simply allow the appeal".

Here comes its reason for differing.

    "We do not agree. It seems to us unacceptable, particularly after we have recommended that the court should apply a less strict approach to the kind of evidence it will receive, that fresh evidence which the court accepts as being capable of belief should not be tested as far as practicable. We are therefore unanimous in concluding"—

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and here come the words—

    "that there is no sensible alternative in these circumstances but to leave the Court of Appeal with the function that the House of Lords in Stafford suggested it had under the present statute—of deciding the matter for itself".

I have endeavoured to indicate that that sensible alternative—the argument of convenience—should not prevail over the argument of principle which I endeavoured to put before the Committee. I hope that those concerned with the Bill will consider the point that I have endeavoured to make and will appreciate its importance because, as has been said in this Chamber in the past 20 minutes, we cannot have repetitions of the kind of miscarriage of justice that emerged in the Guildford Four case; an injustice that was not put right for 15 years. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Powers exercisable by registrar]:

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