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Lord Thomas of Gresford: I am grateful to the noble Viscount, Lord Colville, for his support of the principle behind my amendment. If one stands in the Court of Appeal on behalf of an appellant who has been convicted and produces evidence which was available to the defence at the time of trial, one will get absolutely nowhere. I do not see why the prosecution should be in a better position.

I heard what the Attorney-General said about bringing back a case years later, but that is a very different proposition and it is not easy to get over the threshold involved. The appeals of right following a conviction do not permit one to introduce evidence which is not new. It seems to me that the Government must accept something along the lines of these proposed amendments.

Baroness Anelay of St Johns: I am grateful to all noble Lords who have taken part in this debate on what is a core issue as regards the safeguards that one hopes will operate to ensure that, where the double jeopardy rule is relaxed, it is done in a proper manner.

We are seeking to ensure that a reasonableness test is hedged around the production of new evidence. I take the point of the noble Viscount, Lord Bledisloe,

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with regard to—I have said it again. I apologise to the noble Viscount, Lord Colville of Culross. I called him by the same wrong name on a previous Bill. One day I shall get it right.

I take the point of the noble Viscount, Lord Colville of Culross, about how new is "new". I recall that when I had insurance on a computer it was on the basis that if anything went wrong and it was not capable of being repaired one could have a new part. When the monitor failed and could not be repaired, it turned out that the insurance company defined "new" as something that was new to me—in other words, renovated and not new. The noble Viscount hit the nail very firmly on the head: what indeed is to be "compelling new evidence".

I am grateful for the way in which the noble and learned Lord has put the Government's case. They consider that the reasonableness test for new and compelling evidence comes within the wider remit of the Court of Appeal decision on the interests of justice in Clause 73(2)(c).

I shall certainly consider that matter further. It may be that the noble and learned Lord has satisfied me about it. I should like to discuss it further with him during the summer. I may not need to come back to it on Report, but I shall have to consider the matter carefully. My objective is exactly the same as the Government's in this respect. I want to ensure that there can be no excuse for sloppy investigations by either the police or, subsequently, by the prosecutor which would mean that there could be a greater opportunity for retrial than is strictly necessary. As our objectives are clearly the same, this is one of the provisions on which we should be able to come to an agreement rather than having difficulty with it on Report. In that spirit, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135BA not moved.]

Lord Thomas of Gresford moved Amendment No. 135BB:


    Page 48, line 4, leave out subsection (5).

The noble Lord said: This amendment is simply designed to obtain an explanation from the Government as to what this provision means. I do not understand the purpose of it, and I really cannot have any attitude to whether I want to see it in the Bill until I understand it. I beg to move.

Lord Goldsmith: This provision states, in effect, that previous admissibility is not relevant to the new evidence. In answer to the question of the noble Lord, Lord Thomas of Gresford, it is to ensure that any new evidence is assessed in accordance with current rules and standards of evidence and that in any potential retrial, those standards and rules of evidence would apply. Evidence which is otherwise new and compelling would not be excluded from consideration of the court solely because it would not have been admissible at some previous date. That does not of course mean that the overriding interests of justice test

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disappears—that is still for the Court of Appeal to determine. That is the answer to the question as the noble Lord asked for it.

Earl Russell: Does not this answer the question of the noble Viscount, Lord Colville of Culross, with devastating clarity; namely, does "new" mean new?

Viscount Colville of Culross: It is relevant to this because a later part of the Bill changes all the rules about admissibility. So I assume that the Government's intention is to allow a second trial to take place in which evidence that would previously have been ruled out is now made admissible under this legislation. That is a fairly incestuous situation. It may be part of the design of the Bill, but it seems that it takes two bites of the cherry—what was available before is not new in the sense that I have described in that it was there but it was not admissible under the then rules. It now becomes new, it would appear, because the rules have been changed.

Lord Thomas of Gresford: I now understand what that clause is about—not, I regret to say, as a result of anything the noble and learned Lord the Attorney-General said but because of what the noble Viscount, Lord Colville, said a moment ago.

There seems to be a "not" missing from the provision—it is probably a misprint. The provision might make sense if it said, "For the purposes of this section, it is irrelevant whether any evidence would not have been admissible in earlier proceedings against the acquitted person and is now admissible because of the provisions of this Bill". I ask the noble and learned Lord the Attorney-General to consider whether there is an omission in the provision.

Lord Goldsmith: I do not think there is. To say it is irrelevant whether any evidence would have been admissible is exactly the same as to say it is irrelevant whether any evidence would not have been admissible.

Lord Thomas of Gresford: We can enter into a discussion about this at a later stage. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 agreed to.

Clause 73 [Interests of justice]:

The Deputy Chairman of Committees (Lord Grenfell): I must advise the Committee that if Amendment No. 135BC is agreed to, I cannot call Amendments Nos. 135C or 135D.

[Amendment No. 135BC not moved.]

6.45 p.m.

Baroness Anelay of St Johns moved Amendment No. 135C:


    Page 48, line 10, leave out "existing circumstances" and insert "the circumstances existing at the time the court is considering the application"

The noble Baroness said: In moving Amendment No. 135C, I will, with the leave of the Committee, speak also to Amendment No. 135D. These are

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probing amendments which relate to the requirement under Clause 73 that the Court of Appeal must decide that,


    "it is in the interests of justice"

to have a second trial.

As we have already debated in part previously, Clause 73(2) lists a number of criteria to which the court must have regard when considering this issue. The first is whether existing circumstances make a fair trial likely. The amendments are alternatives to the Government's drafting, and would change that phrase. Amendment No. 135C would change it to whether,


    "the circumstances existing at the time the court is considering the application",

make a fair trial likely. Amendment No. 135D would change it to whether the existing circumstances,


    "and the circumstances that appear to the court to be likely to exist at the time of the retrial",

make a fair trial likely.

Veterans of the Courts Bill will recall the debate earlier this year when one noble Lord expressed dissatisfaction with the use of the word "current" in a series of amendments that I tabled. I am delighted to see that the noble Lord who objected—in the most courteous way, as he always does—is here in his place today. That is the noble Lord, Lord Clinton-Davis. He rightly pulled me up on the use of the word "current" because, as he said, "Current, when?"

The same arguments could be advanced about the use of the word "existing", without further explanation. I have therefore tabled the amendments to clarify that what the Government intend is what is stated in Amendment No. 135C—that in deciding whether or not there can be a fair retrial, the Court of Appeal should consider only the circumstances existing at the time the application for a retrial is made, and not the circumstances that may, or may not, actually come to exist by the time the retrial takes place. No doubt, if that is what the Government intend, the Minister will say that it would be wrong for the Court of Appeal to engage in speculation on what such circumstances might or might not be. There may well be force in that argument. However, that brings me to my next question.

Will the Minister clarify whether the trial judge at the retrial will retain his or her powers to halt the retrial on the grounds that there could not be a fair trial—perhaps because of something that had happened in the intervening period between the Court of Appeal considering the application for a retrial and the retrial taking place? According to Clause 77(2), that period could be as much as two months after the application is made, or even longer if leave is given in exceptional circumstances. I see problems in that.

If the trial judge has the power to halt the retrial on the grounds that a fair trial could not be held, will the judge be able to take a different view from that of the Court of Appeal, even if no new issues have arisen between the Court of Appeal hearing and the retrial? On the other hand, will the trial judge be bound to

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some extent by the Court of Appeal's consideration of whether a fair trial could be held? I suspect, as there is nothing in the Bill to fetter what would ordinarily be a matter for the trial judge's discretion, that the judge will not be so bound, but I would welcome clarification of the point, which is especially important in the context of any potentially prejudicial publicity between the Court of Appeal hearing and the retrial itself. I beg to move.


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