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Criminal Justice Bill


Criminal Justice Bill
Part 9 — Retrial for serious offences

42

 

Application for retrial

64      

Application to Court of Appeal

(1)   

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

(a)   

quashing a person’s acquittal in proceedings within section 63(1), and

(b)   

ordering him to be retried for the qualifying offence.

5

(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

(b)   

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

10

(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—

(a)   

there is evidence as respects which the requirements of section 66

15

appear to be met,

(b)   

it is in the public interest for the application to proceed, and

(c)   

any trial pursuant to an order on the application would not be

inconsistent with obligations of the United Kingdom under Article 31

or 34 of the Treaty on European Union relating to the principle of ne bis

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in idem.

(5)   

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

relation to an acquittal.

65      

Determination by Court of Appeal

(1)   

On an application under section 64(1), the Court of Appeal—

25

(a)   

if satisfied that the requirements of sections 66 and 67 are met, must

make the order applied for;

(b)   

otherwise, must dismiss the application.

(2)   

Subsections (3) and (4) apply to an application under section 64(2).

(3)   

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

30

being tried for the qualifying offence, the court—

(a)   

if satisfied that the requirements of sections 66 and 67 are met, must

make the order applied for;

(b)   

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

bar to the person being tried for the offence.

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(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.

66      

New and compelling evidence

(1)   

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

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

 

 

Criminal Justice Bill
Part 9 — Retrial for serious offences

43

 

(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

which the appeal related).

(3)   

Evidence is compelling if—

(a)   

it is reliable,

5

(b)   

it is substantial, and

(c)   

in the context of the outstanding issues, it appears highly probative of

the case against the acquitted person.

(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

10

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.

67      

Interests of justice

(1)   

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

15

interests of justice for the court to make the order under section 65.

(2)   

That question is to be determined having regard in particular to—

(a)   

whether existing circumstances make a fair trial unlikely;

(b)   

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

the qualifying offence was allegedly committed;

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(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;

(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

25

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

than in England and Wales.

(4)   

Where the earlier prosecution was conducted by a person other than a

30

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

relation to a prosecutor.

68      

Procedure and evidence

(1)   

A prosecutor who wishes to make an application under section 64(1) or (2)

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

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(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

or, if he has been charged with it in accordance with section 75(4), stating that

he has been so charged.

40

(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

 

 

Criminal Justice Bill
Part 9 — Retrial for serious offences

44

 

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

5

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.

(6)   

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

necessary or expedient in the interests of justice—

10

(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

(b)   

order any witness who would be a compellable witness in proceedings

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

15

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

could be tried on the same indictment.

69      

Appeals

20

(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—

“(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

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an application under section 64(1) or (2) of the Criminal Justice Act 2003

(retrial for serious offences).”

(3)   

At the end of that section there is inserted—

“(4)   

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

a defendant are references to the acquitted person.”

30

(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

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

order under section 65 of the Criminal Justice Act 2003 or a declaration under

35

section 65(4) of that Act has been made, and who”.

70      

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

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

40

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 65.

 

 

Criminal Justice Bill
Part 9 — Retrial for serious offences

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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

5

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

(b)   

does not otherwise affect the earlier publication.

(5)   

After notice of an application has been given under section 68(1) relating to the

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

under this section only—

10

(a)   

of its own motion, or

(b)   

on the application of the Director of Public Prosecutions.

(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

15

(b)   

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

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

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

20

order under this section.

(8)   

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

given under section 68(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

25

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

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.

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(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,

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

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1990 (c. 42),

   

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

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

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indictment or other document prepared for use in particular legal

proceedings,

   

“relevant programme” means a programme included in a programme

service.

71      

Offences in connection with publication restrictions

45

(1)   

This section applies if—

 

 

Criminal Justice Bill
Part 9 — Retrial for serious offences

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(a)   

an order under section 70 is made, whether in England and Wales or

Northern Ireland, and

(b)   

while the order has effect, any matter is included in a publication, in

any part of the United Kingdom, in contravention of the order.

(2)   

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

5

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

(3)   

Where the publication is a relevant programme—

(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

10

corresponding to those of an editor of a newspaper,

   

is guilty of an offence.

(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—

15

(a)   

to have been committed with the consent or connivance of, or

(b)   

to be attributable to any neglect on the part of,

   

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

20

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

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,

25

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

be proceeded against and punished accordingly.

(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—

30

(a)   

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

Attorney General, or

(b)   

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

(i)   

before the relevant date, the Attorney General for Northern

Ireland, or

35

(ii)   

on or after the relevant date, the Director of Public Prosecutions

for Northern Ireland.

(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.

Retrial

40

72      

Retrial

(1)   

Where a person—

(a)   

is tried pursuant to an order under section 65(1), or

 

 

Criminal Justice Bill
Part 9 — Retrial for serious offences

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(b)   

is tried on indictment pursuant to an order under section 65(3),

   

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

Appeal.

(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

5

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

(b)   

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

since the order under section 65.

10

(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

of acquittal of the qualifying offence, or

(b)   

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

15

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

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 65.

20

(6)   

Evidence given at a trial pursuant to an order under section 65(1) or (3) must

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

(a)   

section 88 applies, or

(b)   

the witness is unavailable to give evidence, otherwise than as

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

25

applies.

(7)   

At a trial pursuant to an order under section 65(1), paragraph 5 of Schedule 3

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

to a deposition read as evidence at the original trial.

Investigations

30

73      

Authorisation of investigations

(1)   

This section applies to the investigation of the commission of a qualifying

offence by a person—

(a)   

acquitted in proceedings within section 63(1) of the qualifying offence,

or

35

(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

offence.

(2)   

Subject to section 74, an officer may not do anything within subsection (3) for

40

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

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

offence, or

45

 

 

Criminal Justice Bill
Part 9 — Retrial for serious offences

48

 

(b)   

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

after the start of the investigation).

(3)   

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

person—

(a)   

arrest or question him,

5

(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,

(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

10

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

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—

15

(a)   

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

relevant to an application under section 64(1) or (2) in respect of the

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.

20

(6)   

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

that—

(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,

(b)   

it is in the public interest for the investigation to proceed, and

25

(c)   

he has sought leave from a judge of the Crown Court on an ex-parte

application.

(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

force or specified team of customs and excise officers.

30

74      

Urgent investigative steps

(1)   

Section 73 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

investigation being substantially and irrevocably prejudiced,

35

(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.

(2)   

The requirements of this subsection are met if—

40

(a)   

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

73(2),

(b)   

that consent has not been refused, and

(c)   

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

practicable to obtain that consent before taking the action.

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