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Baroness Kennedy of The Shaws: Perhaps I may press the noble and learned Lord to reply to the query from the noble Lord, Lord Thomas of Gresford, on the Benches opposite, about whether in retrial, perhaps years after events, new rules of evidence or newly abandoned rules of evidence will mean that a very different kind of trial will take place. It may be that one would start reviewing all kinds of cases and—in the light of the fact that if the Bill goes through, previous convictions and hearsay will now be evidence in cases—reconsider many past convictions in the light of new rules of evidence. Is that what will happen?

Lord Goldsmith: We have had this debate. It arose in relation to Clause 72, which makes plain under subsection(5) that,


That has been the subject of discussion. It does not arise under this clause. What arises under this clause is the admissibility of transcripts of evidence which has been given at trial. That is all that arises under this clause. It may be, I know not, that we shall come back to Clause 72 at a later stage but I do not intend to go over those arguments again now.

Lord Thomas of Gresford: Clearly, we shall have a huge debate on this on Report. I note that the noble and learned Lord said, "at the moment". I am sure that he will reflect upon the answers he has given. I do not intend to press the amendment for the moment and beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 135GD to 135HB not moved.]

[Amendment No. 135J had been withdrawn from the Marshalled List.]

On Question, Whether Clause 77 shall stand part of the Bill?

Baroness Kennedy of The Shaws: I indicated on a previous occasion that I had telephoned the Public Bill Office about tabling amendments. However, my intention to table an amendment to delete Part 10 would fulfil my objective rather than opposing the Question whether Clause 77 stand part. Therefore, I shall not press it.

Clause 77 agreed to.

Clause 78 [Authorisation of investigations]:

Baroness Anelay of St Johns moved Amendment No. 136:


    Page 52, line 22, leave out "and"

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The noble Baroness said: In moving Amendment No. 136 I shall speak also to Amendment No. 137. As is obvious from even the most cursory glance, Amendment No. 136 is simply a technical drafting amendment to make sense of Amendment No.137, which is consequential upon and part and parcel of Amendment No. 136. Indeed, when the amendments were tabled in another place, perhaps the Public Bill Office there was a little less precise than our own very careful people here. So I am sure that we have the superior approach in this House.

We have been discussing safeguards which are required in this very sensitive and difficult area; that is, the relaxation of double jeopardy rules. Amendment No. 137 addresses the question of whether there should be judicial authorisation of a reinvestigation into an acquitted person's case. Indeed, we say that there should be just such a safeguard.

Clause 78 requires the police to obtain the consent of the Director of Public Prosecutions before taking certain major steps in the reinvestigation of cases where new evidence has come to light or where there are reasonable grounds to believe that further investigation will give rise to new evidence.

The whole process of retrial does indeed give rise to many concerns, some of which have been expressed today, but which were expressed in greater detail at our previous session on 17th July. If we do go ahead with relaxing the rules on double jeopardy, we on these Benches say that we must have the highest level of safeguards to ensure that the process works as fairly and effectively as possible. It is our view, therefore, that the DPP should seek the authorisation of a Crown Court judge before deciding that an acquittal is not a bar to a retrial and giving his written consent to investigation. The DPP could make an ex parte application to a judge and secure the court's sanction of the process, which, as we have heard on previous occasions, is bound to have a drastic effect upon the lives of the acquitted person and, indeed, upon the victim and all the families involved.

The changes to the rules of double jeopardy would make a massive alteration to our basic principles that currently govern the grounds on which someone can be arrested and investigated. When my honourable friend Dominic Grieve raised this matter in another place as long ago as January of this year, the Minister suggested that the problem could be solved by the use of judicial review of the DPP's decision. Since January we have taken advantage of the Government's rather leisurely stroll through the Bill until it now reaches a race towards the end. I have in mind that, indeed, the Government delayed the second and third days on Report in another place because they put in such a substantial number of new clauses. Some were for very good reasons, but there has been some delay at earlier stages of the Bill.

We have considered the Minister's response since that early stage and we are still not convinced that judicial review provides the appropriate safeguard. It is too cumbersome and comes too late. We prefer the

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route of judicial control because that refers the matter to a person who is seen to be independent of the Government in a way that the DPP is not. However great that person's abilities may be, he will still be seen by some as a state administrator making a highly sensitive decision.

Our amendment does not introduce some kind of cumbersome mechanism: it is the reverse; it is intended as a simple safeguard, which we hope fends off the need for time-consuming judicial reviews and unnecessary stress on those who should perhaps not be brought for retrial. I beg to move.

5.30 p.m.

Lord Goldsmith: It may be helpful to say a few words about Clause 78 and what it covers in order to put the amendment in context. Clause 78 allows the police to reinvestigate an acquitted person in respect of the qualifying offence of which he has been acquitted only with the consent of the Director of Public Prosecutions.

The DPP must consider in giving his consent—subsections (4), (5) and (6)—whether the person's acquittal acts as a bar to a retrial before giving his consent to reinvestigate. He must not give his consent unless he is satisfied that—subsection (6)—as a result of the investigations there is, or is likely to be, sufficient new evidence to warrant the conduct of the investigation and that it is in the public interest for the investigation to proceed.

The steps which therefore require consent are set out in subsection (3)—the arrest or questioning of the acquitted person; a search of him or his premises; a search of a vehicle owned by him; a seizure of anything; or taking his fingerprints or a sample from him. The application itself is subject to the further safeguard that the application must be made—subsection (4)—by an officer who, if we are talking about the Metropolitan Police or the City of London Police, is of the rank of commander or above, and in any other case of an assistant chief constable.

Those safeguards appear to us to be very substantial. They come of course before the safeguard of the requirement that there is ultimately an application by the DPP that he has considered the case personally and which is accepted by the Court of Appeal. We do not see—and are not persuaded to accept the amendment therefore—the necessity and the desirability of adding an additional requirement that the DPP should have to seek the leave of a Crown Court judge.

Lord Carlile of Berriew: I am very grateful to the noble and learned Lord for giving way. To enable the Committee to determine its views on these amendments, can he explain what is meant in Clause 78(3)(a) by "question him"? Does it mean question him under caution or does it include such methods as merely asking informal questions or obtaining a witness statement without his being questioned under caution? It would

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perhaps seem logical that no form of questioning should be permitted without the consent of the DPP under the scheme that the Government have in mind.

Lord Goldsmith: At the moment I read it as I suspect the noble Lord reads it. It states "question him" without qualification. But I shall take the issue away to see whether there is any suggestion to the contrary. If that is right, it assists in demonstrating the significance and strength of the safeguards that are being put in place.

The point on the amendment is this: the Director of Public Prosecutions is more than senior and experienced enough to take a decision on whether the police should, in re-opening an investigation into an acquitted person, take the steps which are set out in subsection (3). Having him do that provides a very important but sufficient safeguard to prevent the acquitted person being harassed by the police, because that is what one seeks to protect the acquitted person against. At this stage of the reinvestigation, it is quite appropriate for the decision to be taken by the prosecuting authorities rather than the courts.

To involve a Crown Court judge in proceedings at this stage would make the proceedings more cumbersome. The layers of safeguard that have already been included are more than sufficient. As to the critical decision of whether or not a retrial should be permitted, of course we do not leave it to a Crown Court judge to decide. That will be, after personal consideration by the Director of Public Prosecutions, for the Court of Appeal. At the end of the day, that judicial scrutiny will be a very important safeguard for the individual. So I cannot accept the amendment and invite the noble Baroness not to press it.


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