House of Lords - Explanatory Note
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Clause 66: Restrictions on reporting

274.     Subsection (1) contains a general prohibition on the reporting of appeals arising under this Part of the Bill. This general prohibition is qualified by subsections (7) and (8) which provide that the restriction ends at the conclusion of the trial and does not apply to various matters including details of the court, the defendants, witnesses, legal representatives and the offences at issue.

275.     Subsections (2), (3) and (4) give the judge, the Court of Appeal and the House of Lords respectively, power, by order, to lift the reporting restriction under subsection (1) either completely or to a specified extent. If the defendant(s) object to the making of such an order, such an order may only be made if it would be in the interests of justice to do so (subsections (5) and (6)).

276.     Subsection (10) ensures that any other restrictions on the reporting of court proceedings are preserved.

Clause 67: Offences in connection with reporting

277.     Clause 67 sets out the summary offences created by the new reporting restrictions under clause 66 and the penalties which may be imposed on conviction. Prosecutions under this clause may only be bought in England and Wales by or with the consent of the Attorney General or, where instituted in Northern Ireland, by or with the consent of the Attorney General for Northern Ireland or, after the Justice (Northern Ireland) Act 2002 comes into force, the Director of Public Prosecutions for Northern Ireland.

Clause 68: Interpretation of Part 9

278.     Subsections (2), (3) and (4) provide that a ruling which affects more than one offence or defendant is to be treated as a separate ruling in relation to each. This, when read in conjunction with, for example, clause 52(5), will ensure that proceedings for an offence or defendant affected by a ruling but not by an appeal lodged against the ruling can continue.

PART 10: RETRIAL FOR SERIOUS OFFENCES

Clause 69: Cases that may be retried

279.     Clause 69 sets out the cases which may be retried under the new exception to the normal rule against double jeopardy. These cases all involve serious offences which carry a maximum sentence of life imprisonment, and which are considered to have a particularly serious impact either on the victim or on society more generally. The offences to which the provisions apply are called "qualifying offences", and are listed in Schedule 4 to the Bill.

280.     The cases which may be re-tried are those in which a person has been acquitted of one of the qualifying offences, either on indictment or following an appeal, or of a lesser qualifying offence of which he could have been convicted at that time. This takes into account cases of "implied acquittals", in which, under the current law, an acquittal would have prevented a further prosecution being brought for a lower level offence. For example, an acquittal for murder may also imply an acquittal for the lower level offence of manslaughter, but new evidence may then come to light which would support a charge of manslaughter. A person may only be re-tried in respect of a qualifying offence.

281.     In certain circumstances cases may also be tried where an acquittal for an offence has taken place abroad, so long as the alleged offence also amounted to a qualifying offence and could have been charged as such in the UK. This would include for example offences such as War Crimes, and murder committed outside the UK, for which the courts in England and Wales have jurisdiction over British citizens abroad. Such cases are likely to be rare. Subsection (5) recognises that offences may not be described in exactly the same way in the legislation of other jurisdictions.

282.     The law in Scotland is not being changed in this respect at present, so this Part of the Bill is not applied to acquittals which take place in Scotland.

Clause 70: Application to Court of Appeal

283.     Clause 70 allows a prosecutor to apply to the Court of Appeal for an order which quashes the person's acquittal and orders him to be retried for the qualifying offence. A "prosecutor" means a person or body responsible for bringing public prosecutions, such as the Crown Prosecution Service or HM Customs and Excise. Where a person has been acquitted outside the United Kingdom the Court will need to consider whether or not the acquittal would act as a bar to a further trial here and, if it does, the Court can order that it must not be a bar.

284.     Applications to the Court of Appeal require the personal written consent of the Director of Public Prosecutions (DPP). This provides a safeguard to ensure that only those cases in which there is sufficient evidence are referred to the Court of Appeal. The DPP will also consider whether it is in the public interest to proceed. Applications may also be brought by public prosecuting authorities if new evidence arises in cases which have previously been tried by means of a private prosecution.

285.     Only one application for an acquittal to be quashed may be made in relation to any acquittal.

Clause 71: Determination by Court of Appeal

286.     Clause 71 sets out the decisions which the Court of Appeal may make in response to an application for an acquittal to be quashed. The Court must make an order quashing an acquittal and ordering a retrial if it considers that the requirements set out in clauses 72 and 73 of the Bill are satisfied, namely that there is new and compelling evidence in the case, and that it is in the interests of justice for the order to be made. The Court must dismiss an application where it is not satisfied as to these two factors.

287.     Where an acquittal has taken place outside the United Kingdom, the Court must decide whether that acquittal provides a bar to prosecution. A "bar" means that the Court would not allow a further prosecution to proceed. If it does not provide a bar, then the Court must make a declaration to that effect. If the acquittal does provide a bar, then the Court must make an order that the acquittal is not to be a bar to a trial in respect of the qualifying offence, if it is satisfied that, as above, the requirements in clauses 72 and 73 are met. If it is not satisfied, then the Court must make a declaration that the acquittal remains a bar to retrial.

Clause 72: New and compelling evidence

288.     Clause 72 sets out the requirement for there to be new and compelling evidence against the acquitted person in relation to the qualifying offence, and defines evidence which is "new and compelling". Evidence is "new" if it was not adduced at the original trial of the acquitted person. Evidence is "compelling" if the Court considers it to be reliable and substantial and, when considered in the context of the issues which were in dispute at the trial, the evidence appears to be highly probative of the case against the acquitted person. The Court is thus required to make a decision on the strength of the new evidence. So for example, new evidence relating to identification would only be considered "compelling" if the identity of the offender had been at issue in the original trial. It is not intended that relatively minor evidence which might appear to strengthen an earlier case should justify a re-trial.

289.     This applies equally to acquittals abroad. In such cases it will be for the prosecution to provide the Court with information relating to the evidence available and the issues in the trial.

Clause 73 Interests of justice

290.     Clause 73 sets out the requirement that in all the circumstances it is in the interests of justice for the Court to quash an acquittal and order a re-trial. In determining whether it is in the interests of justice, the Court will consider whether there are existing factors which make a fair trial unlikely (for example, the extent of adverse publicity about the case); the length of time since the alleged offence was committed; and whether the police and prosecution acted with due diligence and expedition in relation to both the original trial and any new evidence. The Court may take into account any issues it considers relevant in determining whether a retrial will be in the interests of justice.

291.      Both clauses 72 and 73 apply where a previous prosecution case may have been led by a private rather than public prosecutor.

Clause 74: Procedure and evidence

292.     Clause 74 sets out a number of technical and evidential procedures to be followed in bringing an application for an acquittal to be quashed. These provide for a notice of the application to be made to the Court of Appeal and served on the acquitted person within 2 days of the application being made (a longer time maybe allowed where the service has to be made overseas); that there will be a Court of Appeal hearing to consider the application; that the acquitted person is entitled to attend the hearing (except where he is in lawful custody abroad); and that he is entitled to be represented at the hearing.

Clause 75: Appeals

293.     Clause 75 allows appeals on a point of law to be made to the House of Lords from decisions made by the Court of Appeal on an application, for example to order or refuse a retrial, or to make a declaration with regard to whether an acquittal is a bar to further proceedings, or to decline to order a retrial on the grounds of admissibility of evidence or points of law. It amends the Criminal Appeal Act 1968 accordingly.

Clause 76: Restrictions on publication in the interests of justice

294.     Clause 76 makes provisions for reporting restrictions to apply in respect of matters surrounding the application for a retrial, until either the end of the re-trial or to any point at which it is clear that the acquitted person can no longer be re-tried. These provisions are aimed at ensuring that a fair trial can take place by limiting the extent to which the media can report on the proceedings under this Part of the Bill, to ensure that any potential jury is not influenced by these developments. Reporting restrictions may be sought only by the Director of Public Prosecutions or made by the Court of its own motion and may be imposed by order of the Court of Appeal at any stage after a new investigation into the acquitted person has commenced. The restrictions may apply to any information in respect of the investigation and to the re-publication of matters previously published. The Court will decide whether such restrictions are required, and their content and duration, according to what is necessary in the interests of justice. They will be enforceable in the same way as any other court order, by the exercise of the court's contempt jurisdiction.

Clause 77: Retrial

295.     Clause 77 makes provisions relating to the holding of retrials. An acquitted person may only be retried on an indictment preferred by the direction of the Court of Appeal. Arraignment on this indictment must be made within two months of the date on which the Court ordered a retrial, unless the Court allows a longer period. The Court can only extend this period if it is satisfied that the prosecutor has acted with due expedition since the order was made, and that there is still a good and sufficient reason to hold the retrial despite any additional lapse of time.

296.     If the acquitted person is not arraigned for the retrial within the two months or any further time allowed, then he can apply to the Court of Appeal to set aside the order for retrial and restore the previous acquittal; or in the case of people acquitted outside the United Kingdom, for a declaration that the acquittal constitutes a bar to any trial for the qualifying offence.

297.     An indictment may relate to more than one offence or to more than one person, including offences which were not the subject of the original order.

298.     This clause also brings the provisions for retrial into line with changes to the law in respect of hearsay evidence and the use of depositions made elsewhere in this Bill.

Clause 78: Authorisation of investigations

299.     Clause 78 relates to the authorisation and conduct of police investigations. It requires the police to obtain the consent of the Director of Public Prosecutions before taking certain major steps in the re-investigation of cases where new evidence has come to light, or where there are reasonable grounds to believe that further investigation will give rise to new evidence. The DPP must consider whether the previous acquittal constitutes a bar to a further prosecution. If the DPP certifies that in his opinion it does not constitute a bar, then there are no restrictions on police investigations into the offence. Where the previous acquittal does constitute a bar, the DPP's consent is required for the taking of specified steps with a direct impact on the acquitted person, where police wish to interview or arrest him, search his person, vehicle or premises occupied by him, seize evidence or take fingerprints or samples. It does not permit such actions to take place without authorisation even with the consent of the acquitted person, in relation to a qualifying offence of which the person has been acquitted, as this would provide a means of carrying out re-investigations without using appropriate police powers. This provides a safeguard against any potential harassment of acquitted persons. The requirement for the DPP's consent is not intended to hamper the police making other enquiries which do not directly impact on the life of the individual, for example by interviewing new or previous witnesses, or comparing fingerprint or DNA samples with records which they already hold.

300.     An application for the DPP's consent must be made in writing by an officer of Commander rank or above in the Metropolitan and City Police forces, or Assistant Chief Constable or above in other police forces or bodies of constables. It can be made where new evidence has already been obtained, or where he has reasonable grounds to believe that new evidence is likely to be obtained if the investigation proceeds. There must therefore be some "trigger" for the application; it is not intended that the re-investigation of an acquitted person can take place without any element of new evidence.

301.     The DPP can only give his consent if he is satisfied that there is sufficient new evidence to justify the re-investigation, or that such new evidence is likely to come to light if the investigation goes ahead, and that it is in the public interest for the investigation to proceed. In giving his consent, the DPP may also recommend to the chief officer of the force requesting the consent, that another force should conduct the re-investigation. It will then be for the chief officer to make appropriate arrangements with another force which can provide an appropriate level of investigative expertise.

302.     The clause applies similarly to investigators of HMCE who are responsible for investigating a number of the qualifying drugs offences.

Clause 79: Urgent investigative steps

303.     Clause 79 makes complementary provisions to clause 78, in circumstances where the police need to act urgently to prevent the investigation being prejudiced, for example by securing evidence immediately. Urgent action may be needed in cases where new evidence is found during the course of other investigations, or where information provided to the police indicates that new evidence is temporarily at a particular location.

304.     In such cases, urgent police action may be authorised by an officer of the rank of Superintendent or above. A Superintendent can only do this if there has been no undue delay previously in seeking the DPP's consent, and consent has not previously been refused. If the authorisation is not given in writing, it must be recorded in writing as soon as possible. It also allows an individual officer to act immediately where necessary without any advance authorisation, and to obtain a confirming authorisation by a Superintendent later.

Clause 80 Arrest and charge

305.     Clause 80 allows for the arrest of a person in respect of a qualifying offence by warrant. A justice of the peace may issue a warrant where he is satisfied that new evidence against the acquitted person has been obtained. This does not affect his arrest in respect of any matter other than the qualifying offence. Where a person is arrested, the clause provides that he may be charged with the offence for which he has been arrested in accordance with the provisions of the Police and Criminal Evidence Act 1984 (PACE), if an officer of the rank of Superintendent or above, who has not been involved with the investigation, considers that there is sufficient evidence available for the case to be referred to a prosecutor in order to consider making an application for the acquittal to be quashed in accordance with this Part of the Bill. This is the equivalent stage to bringing a criminal charge under PACE in normal proceedings, but provides the additional safeguard that the evidence must be considered at Superintendent level or above.

306.     This clause also requires the Custody Officer to ensure that any relevant evidence which becomes available during the investigation is made available to the relevant officer at Superintendent rank or above to enable him to reach such a decision, and allows the Superintendent (or above) to direct that a charge shall be brought where there is sufficient evidence to do so.

Clause 81: Bail and custody before application

307.     Clause 81 provides for a decision on bail or remand in custody to be made, in cases where an acquitted person has been charged under Clause 80. The person must be brought before the Crown Court within 24 hours (excluding Sundays, bank holidays etc). This provision enables the courts either to bail the individual, or to remand him to custody, for a period not greater than 42 days (or such longer period as the court may, for good and sufficient cause, impose), whilst the application to the Court is prepared. It is subject to the same safeguards as other decisions on bail set out in the Bail Act 1976.

308.     A power to remand in custody is considered necessary for the courts in those cases where there may be a risk of absconding prior to the application to the Court of Appeal being made or heard. It recognises that it will take some time for the police and prosecutors to formulate the appropriate application to the Court of Appeal, but this time should not be disproportionate. The bail or custody decision will be taken by the Crown Court who may either bail the person, with conditions on bail if necessary, or remand him to custody, either to a time at which the Court will review the decision, or to the time at which notice of the application is made to the Court of Appeal. If no notice of application to the Court of Appeal is made within the maximum 42 days, the prosecutor may ask the Court for an extension provided there is good and sufficient cause to do so, and that the prosecution has acted expeditiously up to that point.

Clause 82: Bail and custody before hearing

309.     Clause 82 similarly sets out the arrangements for bail or remand in custody once the notice of application is made to the Court of Appeal. At this stage, if the acquitted person is in custody, the Crown Court will make a further decision regarding bail or remand in custody pending the Court of Appeal hearing.

Clause 83: Bail and custody during and after hearing

310.     Clause 83 makes similar provision for bail or remand in custody during and after the Court of Appeal hearing. At this stage decisions on bail or remand will be made by the Court of Appeal, which will need to take into account its own decision in relation to the application. The Court may decide either to bail the person or remand him in custody the person until a retrial can be held, or until any appeal against the Court's ruling is determined.

Clause 84: Revocation of bail

311.     Clause 84 provides for circumstances in which the court revokes a person's bail but the person is not in court. The court may order the person to surrender to the custody of the court and, should he fail to do so, the person may be arrested without warrant and must be brought before the court within 24 hours.

Clause 85: Functions of the DPP

312.     Clause 85 disapplies for the purposes of Part 10 the provision of the Prosecution of Offences Act 1985 which allows the DPP's functions to be exercised by a Crown Prosecutor. In these cases it is intended that the DPP will take decisions personally as to when consent to re-investigate or to apply to the Court should be given. However, this section does allow for another person to be nominated by the DPP to take these decisions in cases where he is unavoidably absent.

Clause 86: Rules of Court

313.     Clause 86 enables rules of court to be made in respect of the various court procedures set out in this Part.

Clause 87: Armed Forces: Part 10

314.     Clause 87 ensures that section 31 of the Armed Forces Act 2001 will apply to Part 10 of the Bill as it applies to "criminal justice enactments". Under section 31(3) the Secretary of State may by order make provisions for the armed forces' system of justice equivalent (subject to any modification) to those of "criminal justice enactments". Under section 31(2)"criminal justice enactments" broadly covers Acts relating to conduct, procedure and powers in relation to criminal investigations and trials; for example arrest, custody, evidence and sentence. Part 10 might by contrast be considered to affect the substantive criminal law.

315.     Under clause 87(2) the Secretary of State is empowered to use section 31 to apply provisions equivalent to Part 10 to such offences under service law as he thinks fit. Service offences likely to be specified include such serious offences as assisting the enemy and mutiny.

316.     Section 31 applies to persons subject to service law wherever they are. This clause will have the same extent of application as that section.

317.     An order under section 31 is generally subject to negative resolution procedure in Parliament. If however it alters the text of an Act (under section 31(6)(c)), such an order is subject to affirmative resolution procedure.

Clause 88: Interpretation of Part 10

318.     Clause 88 defines various terms which appear in this Part of the Bill, and provides that the jurisdiction of the Court of Appeal is exercised by the Criminal Division of the Court.

Clause 89: Application of Part 10 to Northern Ireland

319.     Clause 89 applies Part 10 of the Bill to Northern Ireland, subject to modifications which take account of the different legal procedures and arrangements in that jurisdiction.

PART 11 - EVIDENCE

Chapter 1 : Evidence of Bad Character

Clause 90: Bad Character and Clause 91 Abolition of common law rules

320.     Clause 90 defines the sort of evidence whose admissibility is to be determined under the new statutory scheme. The definition includes evidence that shows that a person has committed an offence, such as evidence relating to a previous conviction. It also extends to evidence that tends to show that they have committed an offence. This is intended to cover evidence that suggests a person has been involved in an offence but where there has been no conviction. It would therefore cover evidence of an offence for which a person has been charged but acquitted. This reflects the state of the current law: in the case of Z ([2000] 2 AC 483), the House of Lords held that there was no special rule that required the exclusion of evidence that a person had been involved in earlier offences, even if they had been acquitted of those crimes, provided that that evidence was otherwise admissible. Thus, if there were a series of attacks and the defendant were acquitted of involvement in them, evidence tending to show that he had committed those earlier attacks could be given in a later case if it were admissible to establish that he had committed the latest attack. The Bill preserves the effect of this decision.

321.     The definition also includes evidence that a person has behaved or is disposed to behave in a way which might be viewed with disapproval by a reasonable person, even if this has not amounted to an offence. This might include, for example, evidence that a person has a sexual interest in children, even if they have not acted on it in a criminal way. At present this sort of evidence would be covered by the common law rules governing the admissibility of previous misconduct. In light of the abolition of those rules, clause 90(1)(b) ensures that this evidence is subject to the new scheme for admissibility.

322.     The scheme does not affect the admissibility of evidence of the facts of the offence nor that which is closely related in time, place or circumstances to those facts. These are excluded from the definition of bad character evidence by clause 90(2), which also excludes evidence of misconduct in connection with the investigation or prosecution of the offence.

323.     Thus, if the defendant were charged with burglary, the prosecution's evidence on the facts of the offence - any witnesses to the crime, forensic evidence etc - would be admissible outside the terms of these provisions. So too would evidence of an assault that had been committed in the course of the burglary, as evidence to do with the facts of the offence. Evidence that the defendant had tried to intimidate prosecution witnesses would also be admissible outside this scheme as evidence of misconduct in connection with, as appropriate, the investigation or the prosecution of the offence, as would allegations by the defendant that evidence had been planted. However, evidence that the defendant had committed a burglary on another occasion or that a witness had previously lied on oath would not be evidence to do with the facts of the offence or its investigation or prosecution and would therefore not be excluded by clause 90(2). It would, however, be caught by the definition in clause 90(1) and its admissibility fall to be dealt with under the Bill's provisions.

324.     The intention is that this Part of the Bill will provide a new basis for the admissibility of previous convictions and other misconduct. Accordingly, clause 91 abolishes the common law rules governing the admissibility of such evidence. (Statutory repeals are dealt with in part 4 of Schedule 31). This abolition does not extend to the rule that allows a person's bad character to be proved by his reputation. This common law rule is preserved as a category of admissible hearsay in clause 111(2).

 
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Prepared: 23 May 2003