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Criminal Justice Bill


Criminal Justice Bill
Part 10 — Retrial for serious offences

    49

 

     (6)    For the purposes of the application, the Court of Appeal may, if it thinks it

necessary or expedient in the interests of justice—

           (a)           order the production of any document, exhibit or other thing, the

production of which appears to the court to be necessary for the

determination of the application, and

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           (b)           order any witness who would be a compellable witness in proceedings

pursuant to an order or declaration made on the application to attend

for examination and be examined before the court.

     (7)    The Court of Appeal may at one hearing consider more than one application

(whether or not relating to the same person), but only if the offences concerned

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could be tried on the same indictment.

 75    Appeals

     (1)    The Criminal Appeal Act 1968 (c. 19) is amended as follows.

     (2)    In section 33 (right of appeal to House of Lords), after subsection (1A) there is

inserted—

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           “(1B)              An appeal lies to the House of Lords, at the instance of the acquitted

person or the prosecutor, from any decision of the Court of Appeal on

an application under section 70(1) or (2) of the Criminal Justice Act 2003

(retrial for serious offences).”

     (3)    At the end of that section there is inserted—

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           “(4)              In relation to an appeal under subsection (1B), references in this Part to

a defendant are references to the acquitted person.”

     (4)    In section 34(2) (extension of time for leave to appeal), after “defendant” there

is inserted “or, in the case of an appeal under section 33(1B), by the prosecutor”.

     (5)    In section 38 (presence of defendant at hearing), for “has been convicted of an

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offence and” substitute “has been convicted of an offence, or in whose case an

order under section 71 of the Criminal Justice Act 2003 or a declaration under

section 71(4) of that Act has been made, and who”.

 76    Restrictions on publication in the interests of justice

     (1)    Where it appears to the Court of Appeal that the inclusion of any matter in a

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publication would give rise to a substantial risk of prejudice to the

administration of justice in a retrial, the court may order that the matter is not

to be included in any publication while the order has effect.

     (2)    In subsection (1) “retrial” means the trial of an acquitted person for a qualifying

offence pursuant to any order made or that may be made under section 71.

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     (3)    The court may make an order under this section only if it appears to it

necessary in the interests of justice to do so.

     (4)    An order under this section may apply to a matter which has been included in

a publication published before the order takes effect, but such an order—

           (a)           applies only to the later inclusion of the matter in a publication

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(whether directly or by inclusion of the earlier publication), and

           (b)           does not otherwise affect the earlier publication.

 

 

Criminal Justice Bill
Part 10 — Retrial for serious offences

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     (5)    After notice of an application has been given under section 74(1) relating to the

acquitted person and the qualifying offence, the court may make an order

under this section only—

           (a)           of its own motion, or

           (b)           on the application of the Director of Public Prosecutions.

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     (6)    Before such notice has been given, an order under this section—

           (a)           may be made only on the application of the Director of Public

Prosecutions, and

           (b)           may not be made unless, since the acquittal concerned, an investigation

of the commission by the acquitted person of the qualifying offence has

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been commenced by officers.

     (7)    The court may at any time, of its own motion or on an application made by the

Director of Public Prosecutions or the acquitted person, vary or revoke an

order under this section.

     (8)    Any order made under this section before notice of an application has been

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given under section 74(1) relating to the acquitted person and the qualifying

offence must specify the time when it ceases to have effect.

     (9)    An order under this section which is made or has effect after such notice has

been given ceases to have effect, unless it specifies an earlier time—

           (a)           when there is no longer any step that could be taken which would lead

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to the acquitted person being tried pursuant to an order made on the

application, or

           (b)           if he is tried pursuant to such an order, at the conclusion of the trial.

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

other enactment on the inclusion of any matter in a publication or any power,

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under an enactment or otherwise, to impose such a prohibition or restriction.

     (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

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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,

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                    “relevant programme” means a programme included in a programme

service.

Retrial

 77    Retrial

     (1)    Where a person—

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           (a)           is tried pursuant to an order under section 71(1), or

           (b)           is tried on indictment pursuant to an order under section 71(3),

            the trial must be on an indictment preferred by direction of the Court of

Appeal.

 

 

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Part 10 — Retrial for serious offences

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     (2)    After the end of 2 months after the date of the order, the person may not be

arraigned on an indictment preferred in pursuance of such a direction unless

the Court of Appeal gives leave.

     (3)    The Court of Appeal must not give leave unless satisfied that—

           (a)           the prosecutor has acted with due expedition, and

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           (b)           there is a good and sufficient cause for trial despite the lapse of time

since the order under section 71.

     (4)    Where the person may not be arraigned without leave, he may apply to the

Court of Appeal to set aside the order and—

           (a)           for any direction required for restoring an earlier judgment and verdict

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of acquittal of the qualifying offence, or

           (b)           in the case of a person acquitted elsewhere than in the United Kingdom,

for a declaration to the effect that the acquittal is a bar to his being tried

for the qualifying offence.

     (5)    An indictment under subsection (1) may relate to more than one offence, or

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more than one person, and may relate to an offence which, or a person who, is

not the subject of an order or declaration under section 71.

     (6)    Evidence given at a trial pursuant to an order under section 71(1) or (3) must

be given orally if it was given orally at the original trial, unless—

           (a)           section 109 applies, or

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           (b)           the witness is unavailable to give evidence, otherwise than as

mentioned in subsection (2) of that section, and section 107(1)(d)

applies.

     (7)    At a trial pursuant to an order under section 71(1), paragraph 5 of Schedule 3

to the Crime and Disorder Act 1998 (c. 37) (use of depositions) does not apply

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to a deposition read as evidence at the original trial.

Investigations

 78    Authorisation of investigations

     (1)    This section applies to the investigation of the commission of a qualifying

offence by a person—

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           (a)           acquitted in proceedings within section 69(1) of the qualifying offence,

or

           (b)           acquitted elsewhere than in the United Kingdom of an offence the

commission of which as alleged would have amounted to or included

the commission (in the United Kingdom or elsewhere) of the qualifying

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offence.

     (2)    Subject to section 79, an officer may not do anything within subsection (3) for

the purposes of such an investigation unless the Director of Public

Prosecutions—

           (a)           has certified that in his opinion the acquittal would not be a bar to the

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trial of the acquitted person in England and Wales for the qualifying

offence, or

           (b)           has given his written consent to the investigation (whether before or

after the start of the investigation).

 

 

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Part 10 — Retrial for serious offences

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     (3)    The officer may not, either with or without the consent of the acquitted

person—

           (a)           arrest or question him,

           (b)           search him or premises owned or occupied by him,

           (c)           search a vehicle owned by him or anything in or on such a vehicle,

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           (d)           seize anything in his possession, or

           (e)           take his fingerprints or take a sample from him.

     (4)    The Director of Public Prosecutions may only give his consent on a written

application, and such an application may be made only by an officer who—

           (a)           if he is an officer of the metropolitan police force or the City of London

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police force, is of the rank of commander or above, or

           (b)           in any other case, is of the rank of assistant chief constable or above.

     (5)    An officer may make an application under subsection (4) only if—

           (a)           he is satisfied that new evidence has been obtained which would be

relevant to an application under section 70(1) or (2) in respect of the

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qualifying offence to which the investigation relates, or

           (b)           he has reasonable grounds for believing that such new evidence is

likely to be obtained as a result of the investigation.

     (6)    The Director of Public Prosecutions may not give his consent unless satisfied

that—

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           (a)           there is, or there is likely as a result of the investigation to be, sufficient

new evidence to warrant the conduct of the investigation, and

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

     (7)    In giving his consent, the Director of Public Prosecutions may recommend that

the investigation be conducted otherwise than by officers of a specified police

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force or specified team of customs and excise officers.

 79    Urgent investigative steps

     (1)    Section 78 does not prevent an officer from taking any action for the purposes

of an investigation if—

           (a)           the action is necessary as a matter of urgency to prevent the

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investigation being substantially and irrevocably prejudiced,

           (b)           the requirements of subsection (2) are met, and

           (c)                         either—

                  (i)                 the action is authorised under subsection (3), or

                  (ii)                the requirements of subsection (5) are met.

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     (2)    The requirements of this subsection are met if—

           (a)           there has been no undue delay in applying for consent under section

78(2),

           (b)           that consent has not been refused, and

           (c)           taking into account the urgency of the situation, it is not reasonably

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practicable to obtain that consent before taking the action.

     (3)    An officer of the rank of superintendent or above may authorise the action if—

           (a)           he is satisfied that new evidence has been obtained which would be

relevant to an application under section 70(1) or (2) in respect of the

qualifying offence to which the investigation relates, or

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Criminal Justice Bill
Part 10 — Retrial for serious offences

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           (b)           he has reasonable grounds for believing that such new evidence is

likely to be obtained as a result of the investigation.

     (4)    An authorisation under subsection (3) must—

           (a)           if reasonably practicable, be given in writing;

           (b)           otherwise, be recorded in writing by the officer giving it as soon as is

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reasonably practicable.

     (5)           The requirements of this subsection are met if—

           (a)           there has been no undue delay in applying for authorisation under

subsection (3),

           (b)           that authorisation has not been refused, and

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           (c)           taking into account the urgency of the situation, it is not reasonably

practicable to obtain that authorisation before taking the action.

     (6)    Where the requirements of subsection (5) are met, the action is nevertheless to

be treated as having been unlawful unless, as soon as reasonably practicable

after the action is taken, an officer of the rank of superintendent or above

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certifies in writing that he is satisfied that, when the action was taken—

           (a)           new evidence had been obtained which would be relevant to an

application under section 70(1) or (2) in respect of the qualifying offence

to which the investigation relates, or

           (b)           the officer who took the action had reasonable grounds for believing

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that such new evidence was likely to be obtained as a result of the

investigation.

Arrest, custody and bail

 80    Arrest and charge

     (1)           Where section 78 applies to the investigation of the commission of an offence

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by any person and no certification has been given under subsection (2) of that

section—

           (a)           a justice of the peace may issue a warrant to arrest that person for that

offence only if satisfied by written information that new evidence has

been obtained which would be relevant to an application under section

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70(1) or (2) in respect of the commission by that person of that offence,

and

           (b)           that person may not be arrested for that offence except under a warrant

so issued.

     (2)    Subsection (1) does not affect section 82(3)(b) or 84(3), or any other power to

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arrest a person, or to issue a warrant for the arrest of a person, otherwise than

for an offence.

     (3)    Part 4 of the 1984 Act (detention) applies as follows where a person—

           (a)           is arrested for an offence under a warrant issued in accordance with

subsection (1)(a), or

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           (b)           having been so arrested, is subsequently treated under section 34(7) of

that Act as arrested for that offence.

     (4)    For the purposes of that Part there is sufficient evidence to charge the person

with the offence for which he has been arrested if, and only if, an officer of the

rank of superintendent or above (who has not been directly involved in the

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investigation) is of the opinion that the evidence available or known to him is

 

 

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Part 10 — Retrial for serious offences

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sufficient for the case to be referred to a prosecutor to consider whether consent

should be sought for an application in respect of that person under section 70.

     (5)    For the purposes of that Part it is the duty of the custody officer at each police

station where the person is detained to make available or known to an officer

at that police station of the rank of superintendent or above any evidence

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which it appears to him may be relevant to an application under section 70(1)

or (2) in respect of the offence for which the person has been arrested, and to

do so as soon as practicable—

           (a)           after the evidence becomes available or known to him, or

           (b)           if later, after he forms that view.

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     (6)    Section 37 of that Act (including any provision of that section as applied by

section 40(8) of that Act) has effect subject to the following modifications—

           (a)           in subsection (1)—

                  (i)                 for “determine whether he has before him” there is substituted

“request an officer of the rank of superintendent or above (who

15

has not been directly involved in the investigation) to

determine, in accordance with section 80(4) of the Criminal

Justice Act 2003, whether there is”;

                  (ii)                for “him to do so” there is substituted “that determination to be

made”;

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           (b)           in subsection (2)—

                  (i)                 for the words from “custody officer determines” to “before him”

there is substituted “officer determines that there is not such

sufficient evidence”;

                  (ii)                the word “custody” is omitted from the second place where it

25

occurs;

           (c)           in subsection (3)—

                  (i)                 the word “custody” is omitted;

                  (ii)                after “may” there is inserted “direct the custody officer to”;

           (d)           in subsection (7) for the words from “the custody officer” to the end of

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that subsection there is substituted “an officer of the rank of

superintendent or above (who has not been directly involved in the

investigation) determines, in accordance with section 80(4) of the

Criminal Justice Act 2003, that there is sufficient evidence to charge the

person arrested with the offence for which he was arrested, the person

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arrested shall be charged.”;

           (e)           subsections (7A), (7B) and (8) do not apply;

           (f)           after subsection (10) there is inserted—

                  “(10A)                    The officer who is requested by the custody officer to make a

determination under subsection (1) above shall make that

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determination as soon as practicable after the request is made.”.

     (7)           Section 40 of that Act has effect as if in subsections (8) and (9) of that section

after “(6)” there were inserted “and (10A)”.

     (8)           Section 42 of that Act has effect as if in subsection (1) of that section for the

words from “who” to “detained” there were substituted “(who has not been

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directly involved in the investigation)”.

 

 

 
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