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Lord Thomas of Gresford moved Amendment No. 135GA:

The noble Lord said: We commence further consideration in Committee on a rather soft ball. As Members of the Committee will see, the proposal is that the word "may" in subsection (1) be replaced by the word "must", and that we exclude subsection (3), which gives the court discretion to,

    "make an order under this section only if it appears to it necessary in the interests of justice to do so".

I am really seeking an explanation of why those discretions exist. As the Bill is framed the Court of Appeal has to take a decision,

    "that the inclusion of any matter in a publication"—

when a retrial is ordered—

    "would give rise to a substantial risk of prejudice to the administration of justice".

That is the decision that the court makes. Having made that decision, in what conceivable circumstances would it be right not to order that the matter be not published? I have racked my brains in trying to think of such circumstances. What is the purport of subsection (3) that such an order should be made only if it appears to be,

    "necessary in the interests of justice"?

What other sort of publication do the promoters of the Bill have in mind?

We have tabled the amendments in a spirit of puzzlement, to find out exactly what they mean. I beg to move.

Baroness Anelay of St Johns: I rise briefly to support the amendment in its probing nature. What are the circumstances in which the Government expect the Court of Appeal would not make such an order? That is indeed puzzling.

It might be appropriate if I explained to the Committee why some amendments no longer appear on the Order Paper. Late last week, I withdrew Amendments Nos. 135F and 135G, which would have preceded this group, and I withdrew others towards the end of Thursday's business. Today I give notice that I shall not move Amendments Nos. 137A to 137D. I have given notice of that intention to the Bill team.

All noble Lords will have been concerned last Thursday to learn that two days in Committee in the Criminal Justice Bill this week were to be jeopardised—to make a very poor pun—by half that time being taken away for the Northern Ireland legislation today and half taken away for the Fire Services Bill on Thursday. Therefore, I have gone as far as I can in withdrawing some of the more probing amendments, leaving my core amendments.

It makes one feel concerned about Government business at this stage of proceedings if we are to lose significant time for debate on the Criminal Justice Bill.

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The Attorney-General (Lord Goldsmith): I take note of the remarks made by the noble Baroness, Lady Anelay. I had notice through the Bill team that she would not move the group that includes Amendment No. 137A, and that Amendments Nos. 135F and 135G had been withdrawn. I note what she says about time, but this is already the sixth day of Committee and there is more to come, so there is certainly a substantial amount of time in which to debate these issues.

I turn to Amendment No. 135GA, moved by the noble Lord, Lord Thomas of Gresford, and Amendment No. 135GB, which covers the same area—the area of the court's discretion. On this occasion, I find myself on the side wishing to uphold the court having discretion, rather than being mandated to do something. In other areas, we have found ourselves on the other side of that debate. What essentially lies behind the argument is the question of the circumstances in which the court might take the view that it was inappropriate or necessary in the interests of justice to make a reporting restriction order, notwithstanding that the other condition was satisfied.

It is not for me to envisage all the circumstances in which the court would take the view that it was unnecessary or appropriate to make such an order—particularly as we are referring to the Court of Appeal. I can certainly think of two, but I would not want them to be thought of as exhaustive. One circumstance might be where the court was of a view that there had been such publicity already and that it was unnecessary to make an order restricting further publicity. That might or might not be connected with the second reason that I have in mind as a possibility—that the court might take the view, and the defendant might himself take the view, that it was important for there to be some publicity so that other witnesses, yet unknown, might be persuaded to come forward after learning about the case through the press.

Those may not be the examples that would arise in a particular case. My fundamental point, which is the reason for resisting the amendments, is that the Court of Appeal can be trusted to have the appropriate ability to take into account all relevant factors and to decide when reporting restrictions are necessary in the interests of justice. On this occasion, I would resist trying to put a straitjacket on the Court of Appeal rather than leaving it to its very good sense and discretion.

Lord Thomas of Gresford: The noble and learned Lord is using my language when he refers to discretion, the absence of a straitjacket, and so on. That is the sort of thing that we have been saying throughout the passage of the Bill.

One reason why double jeopardy is so contentious is that the decision of the Court of Appeal might get such publicity as inevitably to prejudice a further trial. The points raised by the noble and learned Lord could be taken into account by the Court of Appeal in deciding whether there was a substantial risk of prejudice to the administration of justice. However, once it has come

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to that conclusion, I cannot see why there should be any further publicity, which might very well affect the fairness of a further trial.

I am grateful to the noble and learned Lord for his response and I shall take the amendment away and think about it to see whether it is a matter that I wish to return to on Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135GB not moved.]

Clause 76 agreed to.

Clause 77 [Retrial]:

Lord Thomas of Gresford moved Amendment No. 135GC:

    Page 50, line 43, after "be" insert "for the qualifying offence"

The noble Lord said: I shall speak to this amendment and the others in my name and that of my noble friend Lord Dholakia that are grouped with it. I shall also consider whether the clause should stand part of the Bill at all. It is our view that the provisions are unsatisfactory in any event. At an earlier stage we opposed double jeopardy, save in very limited circumstances, as Members of the Committee are aware.

Even though there may be only a limited retrial in certain circumstances, the provisions concern me very much. When an application is made to the Court of Appeal under Part 10, and particularly under Clause 70, the application is made by a prosecutor for "quashing a person's acquittal" and,

    "ordering him to be retried for the qualifying offence".

When we look at what is to be retried, however, it seems as though the intention is to have a trial on a broader basis. Under Clause 77(1), the person ordered to be retried must have a trial,

    "on an indictment preferred by direction of the Court of Appeal".

Under subsection (5), however, that indictment,

    "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 71".

There, in terms, the Court of Appeal may make an order that goes much wider than the original application.

The other unsatisfactory element here—the Committee discussed the matter under Amendment No. 135BB—is that the new rules of evidence envisaged in the Bill will apply to that retrial. Consequently, it seems quite possible for a retrial to be ordered following the quashing of an acquittal on a different basis from that before, because the rules of evidence that apply will be different, under subsections (6) and (7).

Normally when one has a retrial, it is for the original offence and the law is taken as at the time of the original trial. That is the current situation as I understand it. Under the Bill, an entirely different procedure is to apply. Fresh evidence that would not have been admissible at the old trial will be admissible under the provisions, which makes it even more

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unsatisfactory and unacceptable that any retrial should take place at all. I look forward to hearing the Minister's explanation. I beg to move.

Baroness Anelay of St Johns: I shall speak to my Amendment No. 135H, which is grouped with Amendment No. 135GC. I make it clear that it is a probing amendment and that we do not support the Clause 77 stand part debate.

One can readily imagine the circumstances in which the DPP and the police might consider it convenient to try an additional person on the same indictment as a person who is to be retried, perhaps where new DNA evidence implicates both an acquitted person and his or her accomplice who had not been tried before. However, what circumstances do the Government have in mind in relation to allowing the indictment to contain additional offences in respect of the original accused person who faces a retrial? Would those offences have to be new ones of which he had never been acquitted, or would the order for retrial on one offence allow related offences of which an accused had been acquitted to be retried as well?

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