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Lord Goldsmith: I am grateful to the noble Lord for his intervention and for his support for Clause 77 to stand part. I shall carefully consider—and have carefully considered—his comments on the drafting. At present, it appears to me that the matter is sufficiently clear but, as always, I shall ensure that it is examined.

I turn to the noble Lord's comment on subsection (6), which refers to Section 109. Previously I may not have been as clear as I should have been about this matter. Largely, Section 109 replicates the existing procedure for the admission of transcripts at retrials which can be

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ordered. That is not the case completely but, as I said, under the Criminal Appeal Act 1968, transcripts of witnesses who gave evidence at the original trial may be admitted in certain circumstances, including a number of the circumstances set out in Section 109.

Baroness Kennedy of The Shaws: Perhaps I may alert my noble and learned friend that, before the Report stage, I shall table an amendment seeking to leave out the whole of Part 10 of the Bill. I give notice that the entire issue of double jeopardy is, in my view, a departure from principles of a profound kind, and this Chamber should be given the opportunity to vote against such a departure. I shall have that amendment placed before this House prior to Report so that no one is taken by surprise.

Lord Goldsmith: We would not be taken by surprise if we were given notice that the noble Baroness was going to oppose the Question whether clauses stand part. I believe that she made her position perfectly plain on a previous occasion.

Lord Thomas of Gresford: Perhaps I may deal, first, with the offence aspect. As I pointed out to the noble and learned Lord when I moved the amendment, the application to the Court of Appeal under Clause 70 is for an order that the person whose acquittal is quashed should be retried for the qualifying offence. That is what the application is for—it is for a retrial for the qualifying offence.

What concerns me—particularly having regard to the noble and learned Lord's reply—is that a person could be acquitted of offence x, have that acquittal quashed, be ordered to be retried for offence x, but then, on the indictment that is then produced for the retrial, find that he is charged with offence y arising out of the same facts. If the noble and learned Lord can give me an assurance that the retrial that will take place will be a retrial of the qualifying offence—namely, offence x—that would greatly assuage my fears in relation to the provisions of subsections (1) and (5). Perhaps the noble and learned Lord would like to consider that point first.

5.15 p.m.

Lord Goldsmith: I shall consider that and I shall ensure that I write to the noble Lord. But if the noble Lord is concerned that the defendant might be tried in relation to some other offence, then, in any event, there is no need for the Court of Appeal to give leave for that. The defendant can be tried for the other offence if he has not been acquitted of it or if there are circumstances where there might have been an alternative verdict to the original offence for which he was tried. But if it was not an alternative verdict to the offence for which he was tried, then, in any event, the doctrine of autrefois acquit would not prevent him being tried for it.

Lord Thomas of Gresford: As I understand the principle of autrefois acquit, it refers not simply to the

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offence for which the person has been acquitted but to any offence that arises out of the same facts. That is my understanding, but perhaps we can give the matter further thought.

I am grateful to the noble Lord, Lord Renton, for following my thoughts on the evidence aspect. It really does appear—particularly when one has regard to Clause 107(1)(d)—that the retrial will take place under different and separate evidential rules. Those rules include the possibility of hearsay evidence being admissible. Therefore, if a person has been acquitted of an offence at one moment, his acquittal is quashed, he is retried and he then faces an entirely new set of principles for that retrial. That seems to me to be fundamentally unfair. It is one further reason for supporting, to a large extent, the application that the noble Baroness, Lady Kennedy of The Shaws, will make on Report.

Lord Carlisle of Bucklow: Before the noble Lord sits down, perhaps I may ask the noble and learned Lord the Attorney-General a question. In his reply to the noble Lord, Lord Thomas, did I understand him to say that one effect of the noble Lord's amendment would be that it would be impossible to add a further defendant to any separate indictment when a retrial had been ordered? If I did hear him say that, is he imagining circumstances in which a further defendant could be added so that a person who had been tried and acquitted as a single defendant could then have an order made for his retrial and find himself one of several defendants? That would probably substantially change the nature of the case in which he was involved.

Lord Goldsmith: I did say to the noble Lord, Lord Thomas, that one of the effects of his amendment would be to prevent an additional defendant being added to the indictment. The example that I gave would be one in which the further new and compelling evidence—because new and compelling evidence there would need to be in order to justify the application to the Court of Appeal—might show that the defendant had not been, as had perhaps been alleged at trial, acting alone but acting with another. One could envisage circumstances in which the evidence now showed in a compelling way that a murder or some other serious offence that had been committed was in fact the result of two or more people acting together. In those circumstances, it would be right that the defendant should be tried not on his own but with the other person or persons who the new and compelling evidence now indicated were also responsible for the crime.

Lord Carlisle of Bucklow: Would there be any duplication on the adding of a further defendant, or does the noble and learned Lord the Attorney-General envisage that that may happen in any case? Alternatively, would it be the case that, for some reason, the other defendant was not available to be tried at the time of the original trial? It seems to me

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that, as the noble and learned Lord the Attorney-General has accepted, it will change substantially on his retrial the nature of the case against a man who has been acquitted.

Lord Goldsmith: Again, I shall give further thought to this matter. In answer to the noble Lord, Lord Carlisle of Bucklow, there are two points. First, these other defendants have no defence against being tried in any event. They have not been tried before. Therefore, there is no reason that they can put forward based upon the fact of the first defendant's acquittal to say that they should not be tried. Whether they have some other grounds for saying that they should not be tried arising from the circumstances of the case is not a matter for today.

Secondly, the Court of Appeal will have to be satisfied that it is right for the order to be made in relation to the first defendant. So, both of them are covered, it would seem to me, by those points.

Lord Carlile of Berriew: Can the noble and learned Lord assure the Committee that in its final form the law will be so drawn that the Court of Appeal will know that there are other defendants who will or may be tried? If that is not the case, how can the Court of Appeal decide whether it is fair for the defendant whose acquittal has been quashed to be tried with the other defendants?

Those of us who conduct criminal cases have been in many trials in which the evidence against co-defendants has been the subject of applications about the fairness of the trial against one's client. In such circumstances one often makes applications for severance. They are not usually successful but very, very occasionally they are. If an order has been made by the Court of Appeal that the previously acquitted defendant should be retried, the retrial judge will be very inhibited against ordering severance unless the Court of Appeal has had the opportunity of considering all the circumstances, including that there will be co-defendants in the retrial.

Lord Goldsmith: I hear what the noble Lord says. I shall not, while on my feet and without consideration or advice, give the assurance for which he asks. I shall certainly consider the point. I think he makes more of it than is justified but I shall certainly consider it and come back to the issue one way or another.

Lord Thomas of Gresford: Would the noble and learned Lord also take into account the fact that the new and compelling evidence could not be derived from the confession of a co-accused because that would not be evidence against a person whose acquittal was quashed? Nevertheless, as the noble Lord, Lord Carlisle of Bucklow, pointed out, the presence of co-defendants giving evidence, perhaps in a cut-throat defence, would have a marked difference upon the way in which that trial was carried out.

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The more one goes into these provisions for abolishing the centuries old rule of double jeopardy, the more one realises the wide possibility of miscarriages of justice arising. No doubt we shall come back to that.

Lord Goldsmith: The question of what happens when there are co-defendants and defendants is something which exists at the moment. It does not arise as a result of the retrial provisions in this part of the Act.


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