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Lord Mayhew of Twysden: Like the Lord Chancellor.

Lord Goldsmith: The noble and learned Lord says from a sedentary position, "Like the Lord Chancellor". Tempted though I am, I shall not respond today.

Lord Kingsland: The noble and learned Lord could not possibly comment.

I, like many noble and noble and learned Lords, am concerned that so much in Chapter 9 is not to appear on the face of the Bill but to be part of either discretionary decisions of the Court of Appeal or guidance given by the Director of Public Prosecutions. I continue to be particularly concerned about the noble and learned Lord's approach to paragraph (c) of my amendment which would allow the Court of Appeal to strike down decisions by trial judges which no reasonable judge could have reached. Surely that ought to give the noble and learned Lord all the powers that the Court of Appeal needs to fulfil all the tasks he wishes it to fulfil.

If a decision by a judge is one that a reasonable judge could have reached, why on earth should the Court of Appeal have any role? Surely it is a well-established principle that a court in those circumstances should not be entitled to substitute its discretionary view for the discretionary view of a lower court. By rejecting my amendment, in effect, that is the principle which the noble and learned Lord seeks to deny.

Lord Goldsmith: The noble Lord saw me shaking my head, so I rise. The law is full of cases where the Court

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of Appeal—this being its function—says, "It was reasonable for this judge below to have reached this decision but we still adjudge, in the interests of justice, that it is wrong". Let us leave it to the Court of Appeal to determine which cases are appropriate for it to look into and in which cases it should overturn the decisions of trial judges as it does in other areas. Trust it. I know those words will be quoted against me in other contexts, but they are appropriate here.

Lord Kingsland: I am not going to seek to extend this debate any further, but I think the noble and learned Lord has heard enough to know that this issue will be returned to on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 133L:

    Page 41, line 29, leave out first "the" and insert "that"

The noble Lord said: This amendment is grouped with Amendments Nos. 133M and 133N. Again, I simply seek an assurance from the noble and learned Lord that the Court of Appeal will not have the power to order proceedings for another offence to be resumed in the Crown Court.

One envisages a situation in which a judge finds no case to answer and says to the prosecution, "You have brought the wrong charge; if you had brought a different charge, there would have been a case to answer. I will give you leave to appeal to the Court of Appeal". The Court of Appeal then agrees with the trial judge and orders that a substituted offence be tried. Substituting "that" for "the" will prevent what I would consider to be an abuse which goes far beyond the policy that lies behind these proposals. I beg to move.

Lord Goldsmith: It will obviously be possible for a prosecution appeal to be directed against the effect of a ruling on several offences. On the face of it, the proposed wording might suggest that the Bill is not sufficiently clear on this point. I am therefore happy to take these amendments away to consider them further and come back to this issue on Report, making our views known then.

Lord Thomas of Gresford: I am grateful to the noble and learned Lord. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 133M and 133N not moved.]

Clause 62 agreed to.

Clauses 63 to 68 agreed to.

Clause 69 [Cases that may be retried]:

Baroness Anelay of St Johns moved Amendment No. 133P:

    Page 46, line 7, at end insert "or Scotland"

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The noble Baroness said: In moving Amendment No. 133P, I will, with the leave of the Committee, also speak to Amendments Nos. 133Q, 133R and 133S.

We now come to Part 10 of the Bill, in which the Government seek to relax the ancient double jeopardy rule, which prevents someone who has been acquitted from being tried a second time for the offence. In a nutshell, Part 10 allows the person who has been acquitted of one of the 30 or so offences currently listed by the Government in Schedule 4 to be retried for the same offence if what is called new and compelling evidence comes to light.

This is indeed a controversial part of the Bill. I therefore think it right that I should put on the record now the general view of Her Majesty's Opposition on this matter. I could refer to it only telegraphically at Second Reading because I confined myself to just a quarter of an hour in debating a 300-odd clause Bill. If I outline our view in this group of amendments, it will save some considerable time later in our debates on other groups.

Our approach to this controversial matter is essentially pragmatic. We accept that many people regard it as offensive in the case of the most serious crimes, where a matter of public importance is at stake, that a person who is acquitted because there is at that time insufficient evidence cannot later be retried when compelling evidence has become available.

The Government recently held a meeting in this House at which noble Lords were invited to hear the views of families whose lives had been blighted by the failure to secure convictions in serious cases of murder and rape. Yesterday, the Leader of the Opposition in this House—my noble friend Lord Strathclyde—and I met the uncle of one young girl who was murdered in Brighton some 17 years ago. Indeed, two young girls were assaulted and murdered at that time—it was commonly known as the "Babes in the wood" case. The families believe, as do others in similar cases, that if the double jeopardy rule were to be relaxed, a conviction could be obtained in relation to the person who had previously been acquitted.

In tackling our debates in this part of the Bill, I feel sure that all noble Lords will have the utmost consideration for families such as those, while also being determined to ensure that the Government's proposals, if they are to be implemented, should work effectively but fairly. If we fail to do that, cases brought against acquitted individuals under these clauses will either not proceed at all or be abandoned midstream. Nobody would benefit from that, and the hopes raised by the Government would be dashed. In saying that, I make no criticism of the Government, either direct or implied. I simply recognise how difficult it will be to make the powers work in the right way in practice and that, above all else, the existence of a power for retrial will not necessarily mean that guilty people will be convicted.

I turn to what appear to be technical amendments in this group. They are probing and relate to the territorial extent of the provision. It will be clear that Clause 69(1) refers only to England and Wales.

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Clause 89 contains the modifications necessary for Part 10 to apply to Northern Ireland. Clause 69 allows a person to be retried in England and Wales if they have been acquitted in England and Wales or in any other part of the world outside the United Kingdom. However, there is no reference whatever to Scotland in Part 10.

The Bill places us in the frankly bizarre position that someone acquitted of an offence in France, Germany, Italy, Spain or any country could be retried for that offence in England and Wales, but someone who is acquitted of an offence in Scotland, which is a part of our own United Kingdom, could not be retried for that offence in England and Wales.

The then Under-Secretary of State Mr Hilary Benn confirmed that in the Standing Committee in another place on 20th January. He said:

    "An acquittal that occurred in Scotland would not be covered . . . The Scottish Executive have decided that they do not want that to happen. That is a product of devolution . . . The situation that I have described reflects the nature of our relationship with the Scottish Executive and the Scottish Parliament".—[Official Report, Commons, Standing Committee B, 16/1/03; col. 5.]

I should like to press the noble and learned Lord the Minister a little further on this point. Why cannot and should not this Parliament, acting as a legislative body for the criminal law of England and Wales, and of Northern Ireland, include a provision in the Bill to place Scotland on the same footing as every other European Union country and, indeed, every other country? As I read the Bill, Scotland will be the only place on Earth where it will be possible to be acquitted of a crime and then not retried in England and Wales, or in Northern Ireland, for the same crime if new and compelling evidence comes to light. Would the Minister confirm that my analysis is correct?

I now turn to my amendments which would insert "Northern Ireland" into Clause 69(1). As a result of Clause 89, which was inserted at Report stage in another place, the provisions of Part 10 will also apply in Northern Ireland. My question is about the interrelation of the provisions for England and Wales and Northern Ireland. Clauses 69(1) and 69(4) make it clear that, so far as concerns England and Wales, a person can only be retried in England and Wales if they have previously been acquitted in England and Wales or

    "elsewhere than in the United Kingdom".

I have already referred to the position of Scotland, and is Northern Ireland not in a similar, although not entirely analogous, position as a result of the Government's drafting?

Is the effect of the Bill, therefore, that although Part 10 will apply in Northern Ireland, a person acquitted of an offence in Northern Ireland can be retried in Northern Ireland but not, as I read the Bill, in England and Wales, because Clause 69, which deals with retrials in England and Wales, allows a person to be retried only if they have been convicted in England and Wales or outside the UK? Is not the position mirrored in respect of England and Wales when the provisions of the Bill are applied to Northern Ireland? I would be grateful for clarification from the

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Government. The matter seems very convoluted, and it seems that there may be problems in the way in which the Bill's drafting affects the availability of retrial. I beg to move.

4.15 p.m.

Lord Lloyd of Berwick: In moving the amendment, the noble Baroness took the opportunity to state the position of her party on Part 10. I hope that I may be forgiven for doing so briefly myself, before coming to the amendment tabled in my name.

The rule that a person cannot be tried twice for the same offence is so well established in our law that we should be very cautious indeed before we accept Part 10 as it stands. The rule could have been challenged when they discovered fingerprints in the 19th century. DNA could be regarded as the 20th century equivalent of the 19th century discovery of fingerprints. But the rule survived, and it survived because it is based on a very sound principle, which applies equally to civil proceedings and criminal proceedings—that there must be an end to litigation. I could put that principle in Latin but I am sure that the Committee already knows the Latin and, therefore, I need not repeat it.

That is the principle but I accept that the discovery of DNA has made a difference since, as I understand it, we can now be absolutely sure of guilt the second time round. If so, it seems to me that a limited exception to the rule is now justified. The only question is, where is that limit to be placed? No one, I think, suggests that the prosecution should be entitled to a third bite at the cherry. No one, I think, suggests that the exception to the rule should be extended across the whole range of criminal offences. It should in my view be confined, at any rate to start with, to the most serious crime of all; that is, the crime of murder, and not the 31 offences which are now included in Schedule 4.

As happens so often, the Home Office simply cannot resist the temptation to overegg the pudding. When we reach Amendment No. 135ZA, I shall support the amendment of the noble Lord, Lord Thomas, which I prefer to the amendment in the name of the noble Baroness, which I believe is Amendment No 135. I beg leave to address the Committee later on my amendment but in the mean time I await the Attorney-General's response to these amendments.

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