House of Lords portcullis
House of Lords
Session 2002 - 03
Internet Publications
Other Bills before Parliament

Criminal Justice Bill


Criminal Justice Bill
Part 9 — Prosecution appeals

    42

 

 63    Appeals to the House of Lords

     (1)    In section 33(1) of the 1968 Act (right of appeal to House of Lords) after “this

Act” there is inserted “or Part 9 of the Criminal Justice Act 2003”.

     (2)    In section 36 of the 1968 Act (bail on appeal by defendant) after “under” there

is inserted “Part 9 of the Criminal Justice Act 2003 or”.

5

     (3)    In this Part “the 1968 Act” means the Criminal Appeal Act 1968 (c. 19).

 64    Costs

     (1)    The Prosecution of Offences Act 1985 (c. 23) is amended as follows.

     (2)    In section 16(4A) (defence costs on an appeal under section 9(11) of Criminal

Justice Act 1987 may be met out of central funds) after “hearings)” there is

10

inserted “or under Part 9 of the Criminal Justice Act 2003”.

     (3)    In section 18 (award of costs against accused) after subsection (2) there is

inserted—

           “(2A)              Where the Court of Appeal reverses or varies a ruling on an appeal

under Part 9 of the Criminal Justice Act 2003, it may make such order

15

as to the costs to be paid by the accused, to such person as may be

named in the order, as it considers just and reasonable.”

     (4)    In subsection (6) after “subsection (2)” there is inserted “or (2A)”.

 65    Effect on time limits in relation to preliminary stages

     (1)    Section 22 of the Prosecution of Offences Act 1985 (power of Secretary of State

20

to set time limits in relation to preliminary stages of criminal proceedings) is

amended as follows.

     (2)    After subsection (6A) there is inserted—

           “(6B)              Any period during which proceedings for an offence are adjourned

pending the determination of an appeal under Part 9 of the Criminal

25

Justice Act 2003 shall be disregarded, so far as the offence is concerned,

for the purposes of the overall time limit and the custody time limit

which applies to the stage which the proceedings have reached when

they are adjourned.”

 66    Restrictions on reporting

30

     (1)    Except as provided by this section no publication shall include a report of—

           (a)           anything done under section 58, 59 or 60,

           (b)           an appeal in relation to a ruling under this Part or Part 2 of the 1968 Act,

or

           (c)           an application for leave to appeal in relation to the ruling under this

35

Part or Part 2 of the 1968 Act.

     (2)    The judge who made the ruling may order that subsection (1) is not to apply,

or is not to apply to a specified extent, to a report of—

           (a)           anything done under section 58, 59 or 60, or

           (b)           an application to the judge for leave to appeal to the Court of Appeal

40

under this Part.

 

 

Criminal Justice Bill
Part 9 — Prosecution appeals

    43

 

     (3)    The Court of Appeal may order that subsection (1) is not to apply, or is not to

apply to a specified extent, to a report of—

           (a)           an appeal to the Court of Appeal under this Part,

           (b)           an application to that Court for leave to appeal to it under this Part, or

           (c)           an application to that Court for leave to appeal to the House of Lords

5

under Part 2 of the 1968 Act.

     (4)    The House of Lords may order that subsection (1) is not to apply, or is not to

apply to a specified extent, to a report of—

           (a)           an appeal to that House under Part 2 of the 1968 Act, or

           (b)           an application to that House for leave to appeal to it under Part 2 of that

10

Act.

     (5)    Where there is only one defendant and he objects to the making of an order

under subsection (2), (3) or (4)—

           (a)           the judge, the Court of Appeal or the House of Lords are to make the

order if (and only if) satisfied, after hearing the representations of the

15

defendant, that it is in the interests of justice to do so, and

           (b)           the order (if made) is not to apply to the extent that a report deals with

any such objection or representations.

     (6)    Where there are two or more defendants and one or more of them object to the

making of an order under subsection (2), (3) or (4)—

20

           (a)           the judge, the Court of Appeal or the House of Lords are to make the

order if (and only if) satisfied, after hearing the representations of each

of the defendants, that it is in the interests of justice to do so, and

           (b)           the order (if made) is not to apply to the extent that a report deals with

any such objection or representations.

25

     (7)    Subsection (1) does not apply to the inclusion in a publication of a report of—

           (a)           anything done under section 58, 59 or 60,

           (b)           an appeal in relation to a ruling under this Part or Part 2 of the 1968 Act,

or

           (c)           an application for leave to appeal in relation to a ruling under this Part

30

or Part 2 of the 1968 Act,

            at the conclusion of the trial of the defendant or the last of the defendants to be

tried.

     (8)    Subsection (1) does not apply to a report which contains only one or more of

the following matters—

35

           (a)           the identity of the court and the name of the judge,

           (b)           the names, ages, home addresses and occupations of the defendant or

defendants and witnesses,

           (c)           the offence or offences, or a summary of them, with which the

defendant or defendants are charged,

40

           (d)           the names of counsel and solicitors in the proceedings,

           (e)           where the proceedings are adjourned, the date and place to which they

are adjourned,

           (f)           any arrangements as to bail,

           (g)           whether a right to representation funded by the Legal Services

45

Commission as part of the Criminal Defence Service was granted to the

defendant or any of the defendants.

 

 

Criminal Justice Bill
Part 9 — Prosecution appeals

    44

 

     (9)    The addresses that may be included in a report by virtue of subsection (8) are

addresses—

           (a)           at any relevant time, and

           (b)           at the time of their inclusion in the publication.

     (10)   Nothing in this section affects any prohibition or restriction by virtue of any

5

other enactment on the inclusion of any matter in a publication.

     (11)   In this section—

                    “programme service” has the same meaning as in the Broadcasting Act

1990 (c. 42),

                    “publication” includes any speech, writing, relevant programme or other

10

communication in whatever form, which is addressed to the public at

large or any section of the public (and for this purpose every relevant

programme is to be taken to be so addressed), but does not include an

indictment or other document prepared for use in particular legal

proceedings,

15

                    “relevant time” means a time when events giving rise to the charges to

which the proceedings relate are alleged to have occurred,

                    “relevant programme” means a programme included in a programme

service.

 67    Offences in connection with reporting

20

     (1)    This section applies if a publication includes a report in contravention of

section 66.

     (2)    Where the publication is a newspaper or periodical, any proprietor, editor or

publisher of the newspaper or periodical is guilty of an offence.

     (3)    Where the publication is a relevant programme—

25

           (a)           any body corporate or Scottish partnership engaged in providing the

programme service in which the programme is included, and

           (b)           any person having functions in relation to the programme

corresponding to those of an editor of a newspaper,

            is guilty of an offence.

30

     (4)    In the case of any other publication, any person publishing it is guilty of an

offence.

     (5)    If an offence under this section committed by a body corporate is proved—

           (a)           to have been committed with the consent or connivance of, or

           (b)           to be attributable to any neglect on the part of,

35

            an officer, the officer as well as the body corporate is guilty of the offence and

liable to be proceeded against and punished accordingly.

     (6)    In subsection (5), “officer” means a director, manager, secretary or other similar

officer of the body, or a person purporting to act in any such capacity.

     (7)    If the affairs of a body corporate are managed by its members, “director” in

40

subsection (6) means a member of that body.

     (8)    Where an offence under this section is committed by a Scottish partnership and

is proved to have been committed with the consent or connivance of a partner,

he as well as the partnership shall be guilty of the offence and shall be liable to

be proceeded against and punished accordingly.

45

 

 

Criminal Justice Bill
Part 9 — Prosecution appeals

    45

 

     (9)    A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 5 on the standard scale.

     (10)   Proceedings for an offence under this section may not be instituted—

           (a)           in England and Wales otherwise than by or with the consent of the

Attorney General, or

5

           (b)           in Northern Ireland otherwise than by or with the consent of—

                  (i)                 before the relevant date, the Attorney General for Northern

Ireland, or

                  (ii)                on or after the relevant date, the Director of Public Prosecutions

for Northern Ireland.

10

     (11)   In subsection (10) “the relevant date” means the date on which section 22(1) of

the Justice (Northern Ireland) Act 2002 (c. 26) comes into force.

 68    Interpretation of Part 9

     (1)    In this Part—

                    “programme service” has the meaning given by section 66(11),

15

                    “publication” has the meaning given by section 66(11),

                    “relevant programme” has the meaning given by section 66(11),

                    “terminating ruling” has the meaning given by section 56

                    “the 1968 Act” means the Criminal Appeal Act 1968 (c. 19).

     (2)    Where a ruling relates to two or more offences but not all of those offences are

20

the subject of an appeal under this Part, nothing in this Part is to be regarded

as affecting the ruling so far as it relates to any offence which is not the subject

of the appeal.

     (3)    In relation to an appeal under this Part in respect of a ruling which relates only

to one offence, any reference in this Part to the offence which is the subject of

25

the appeal is a reference to that offence.

     (4)    Where two or more defendants are charged jointly with the same offence, the

provisions of this Part are to apply as if the offence, so far as relating to each

defendant, were a separate offence (so that, for example, any reference in this

Part to a ruling which relates to one or more offences includes a ruling which

30

relates to one or more of those separate offences).

     (5)    Subject to rules of court made under section 53(1) of the Supreme Court Act

1981 (c. 54) (power by rules to distribute business of Court of Appeal between

its civil and criminal divisions)—

           (a)           the jurisdiction of the Court of Appeal under this Part is to be exercised

35

by the criminal division of that court, and

           (b)           references in this Part to the Court of Appeal are to be construed as

references to that division.

 

 

Criminal Justice Bill
Part 10 — Retrial for serious offences

    46

 

Part 10

Retrial for serious offences

Cases that may be retried

 69    Cases that may be retried

     (1)    This Part applies where a person has been acquitted of a qualifying offence in

5

proceedings—

           (a)           on indictment in England and Wales,

           (b)           on appeal against a conviction, verdict or finding in proceedings on

indictment in England and Wales, or

           (c)           on appeal from a decision on such an appeal.

10

     (2)    A person acquitted of an offence in proceedings mentioned in subsection (1) is

treated for the purposes of that subsection as also acquitted of any qualifying

offence of which he could have been convicted in the proceedings because of

the first-mentioned offence being charged in the indictment, except an

offence—

15

           (a)           of which he has been convicted,

           (b)           of which he has been found not guilty by reason of insanity, or

           (c)           in respect of which, in proceedings where he has been found to be

under a disability (as defined by section 4 of the Criminal Procedure

(Insanity) Act 1964 (c. 84)), a finding has been made that he did the act

20

or made the omission charged against him.

     (3)    References in subsections (1) and (2) to a qualifying offence do not include

references to an offence which, at the time of the acquittal, was the subject of

an order under section 71(1) or (3).

     (4)    This Part also applies where a person has been acquitted, in proceedings

25

elsewhere than in the United Kingdom, of an offence under the law of the place

where the proceedings were held, if the commission of the offence as alleged

would have amounted to or included the commission (in the United Kingdom

or elsewhere) of a qualifying offence.

     (5)    Conduct punishable under the law in force elsewhere than in the United

30

Kingdom is an offence under that law for the purposes of subsection (4),

however it is described in that law.

     (6)    This Part applies whether the acquittal was before or after the passing of this

Act.

     (7)    References in this Part to acquittal are to acquittal in circumstances within

35

subsection (1) or (4).

     (8)    In this Part “qualifying offence” means an offence listed in Part 1 of Schedule 4.

Application for retrial

 70    Application to Court of Appeal

     (1)    A prosecutor may apply to the Court of Appeal for an order—

40

           (a)           quashing a person’s acquittal in proceedings within section 69(1), and

 

 

Criminal Justice Bill
Part 10 — Retrial for serious offences

    47

 

           (b)           ordering him to be retried for the qualifying offence.

     (2)    A prosecutor may apply to the Court of Appeal, in the case of a person

acquitted elsewhere than in the United Kingdom, for—

           (a)           a determination whether the acquittal is a bar to the person being tried

in England and Wales for the qualifying offence, and

5

           (b)           if it is, an order that the acquittal is not to be a bar.

     (3)    A prosecutor may make an application under subsection (1) or (2) only with the

written consent of the Director of Public Prosecutions.

     (4)    The Director of Public Prosecutions may give his consent only if satisfied

that—

10

           (a)           there is evidence as respects which the requirements of section 72

appear to be met, and

           (b)           it is in the public interest for the application to proceed.

     (5)    Not more than one application may be made under subsection (1) or (2) in

relation to an acquittal.

15

 71    Determination by Court of Appeal

     (1)    On an application under section 70(1), the Court of Appeal—

           (a)           if satisfied that the requirements of sections 72 and 73 are met, must

make the order applied for;

           (b)           otherwise, must dismiss the application.

20

     (2)    Subsections (3) and (4) apply to an application under section 70(2).

     (3)    Where the Court of Appeal determines that the acquittal is a bar to the person

being tried for the qualifying offence, the court—

           (a)           if satisfied that the requirements of sections 72 and 73 are met, must

make the order applied for;

25

           (b)           otherwise, must make a declaration to the effect that the acquittal is a

bar to the person being tried for the offence.

     (4)    Where the Court of Appeal determines that the acquittal is not a bar to the

person being tried for the qualifying offence, it must make a declaration to that

effect.

30

 72    New and compelling evidence

     (1)    The requirements of this section are met if there is new and compelling

evidence against the acquitted person in relation to the qualifying offence.

     (2)    Evidence is new if it was not adduced in the proceedings in which the person

was acquitted (nor, if those were appeal proceedings, in earlier proceedings to

35

which the appeal related).

     (3)    Evidence is compelling if—

           (a)           it is reliable,

           (b)           it is substantial, and

           (c)           in the context of the outstanding issues, it appears highly probative of

40

the case against the acquitted person.

 

 

Criminal Justice Bill
Part 10 — Retrial for serious offences

    48

 

     (4)    The outstanding issues are the issues in dispute in the proceedings in which the

person was acquitted and, if those were appeal proceedings, any other issues

remaining in dispute from earlier proceedings to which the appeal related.

     (5)    For the purposes of this section, it is irrelevant whether any evidence would

have been admissible in earlier proceedings against the acquitted person.

5

 73    Interests of justice

     (1)    The requirements of this section are met if in all the circumstances it is in the

interests of justice for the court to make the order under section 71.

     (2)    That question is to be determined having regard in particular to—

           (a)           whether existing circumstances make a fair trial unlikely;

10

           (b)           for the purposes of that question and otherwise, the length of time since

the qualifying offence was allegedly committed;

           (c)           whether it is likely that the new evidence would have been adduced in

the earlier proceedings against the acquitted person but for a failure by

an officer or by a prosecutor to act with due diligence or expedition;

15

           (d)           whether, since those proceedings or, if later, since the commencement

of this Part, any officer or prosecutor has failed to act with due diligence

or expedition.

     (3)    In subsection (2) references to an officer or prosecutor include references to a

person charged with corresponding duties under the law in force elsewhere

20

than in England and Wales.

     (4)    Where the earlier prosecution was conducted by a person other than a

prosecutor, subsection (2)(c) applies in relation to that person as well as in

relation to a prosecutor.

 74    Procedure and evidence

25

     (1)    A prosecutor who wishes to make an application under section 70(1) or (2)

must give notice of the application to the Court of Appeal.

     (2)    Within two days beginning with the day on which any such notice is given,

notice of the application must be served by the prosecutor on the person to

whom the application relates, charging him with the offence to which it relates

30

or, if he has been charged with it in accordance with section 80(4), stating that

he has been so charged.

     (3)           Subsection (2) applies whether the person to whom the application relates is in

the United Kingdom or elsewhere, but the Court of Appeal may, on application

by the prosecutor, extend the time for service under that subsection if it

35

considers it necessary to do so because of that person’s absence from the

United Kingdom.

     (4)    The Court of Appeal must consider the application at a hearing.

     (5)    The person to whom the application relates—

           (a)           is entitled to be present at the hearing, although he may be in custody

40

unless he is in custody elsewhere than in England and Wales or

Northern Ireland, and

           (b)                         is entitled to be represented at the hearing, whether he is present or not.

 

 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2003
Revised 23 May 2003