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Lord Lloyd of Berwick: I am grateful to the noble and learned Lord for giving way. He was a little too quick for me at the beginning because I had intended to support both this amendment and the next substantive one. With the permission of the Committee I shall do so now. I was waiting to hear whether there would be any support for the amendment from the Liberal Democrat Benches, but that did not happen.
The Committee may remember that I do not oppose Part 10 of the Bill, root and branch, as do some noble Lords on these Benches. But I see a risk of great injustice in individual cases, especially if the power to order a retrial is to be exercised retrospectively under Clause 69(6)for example, in respect of a committal before the Act comes into force.
I gave an example of a case of a man acquitted of a crime five or 10 years ago, before the Act comes into force. He then makes a clean breast of the issue in private to his wife. In my viewa view I expressed at the timeit would be quite wrong for such a person to be deprived of his existingaccruedright not to be tried again by retrospective legislation. Surely, that should be axiomatic.
When he came to reply on this point, the noble and learned Lord the Attorney-General did not, with great respect, deal with the issue very satisfactorily because he did not deal with it as a point of principle, which of course it is. Instead he was content to give an example from the other end of the spectrumthe Dunlop case. In that casethe Committee may rememberthe man admitted within a few days of his acquittal that he had committed the perfect crime and bragged about it in a public house. The noble and learned Lord the Attorney-General said that he would not be able to look the mother of that victim in the face unless he could tell her that the Act would apply to her.
The contrast between the two casesthe case I put before the Committee and the one put before the Committee by the noble and learned Lord the Attorney-Generalshows as clearly as anything could the need for these amendments. There will not be, as the Attorney-General accepts, many of these retrospective cases. Indeed, I doubt whether there will be many cases under these retrial proceedings altogether. But what surely is needed right at the outset is a means of distinguishing the cases where there is some meritthe example given by the noble and learned Lordand the cases where there is no merit, the kind of case, for example, which I cited. That decision should be taken long before the case reaches the Court of Appeal and should be taken before ever the investigation under this clause starts, because the investigation itself in a case where there is no merit could cause grave injustice.
An ex parte application to the judge at the very start of the investigation seems the ideal way to achieve that objectiveto distinguish at the outset between the cases where there is merit and those where there is none. I therefore hope that, although the Government have said that they will not, they will accept the amendment or at least reconsider it. It could not possibly do any harm; indeed, it could do nothing but good as it would take the initial and all-important decision from the hands of the Director of Public Prosecutions and place it in the hands of a Crown Court judge, where it belongs.
Lord Mayhew of Twysden: Perhaps I may seek similar indulgence, not having risen to speak at the right time. I support the effective amendment in this grouping of two, but for a slightly different reason from that principally advanced by my noble friend on the Front Bench. I do not think that there is any view in the country that the Director of Public Prosecutions is other than independent of the Government. We all know that he is by statute superintended by the Attorney-General, but that is by the Attorney-General acting in his judicial capacity, not in his capacity as a partisan member of the Government.
I support the amendment because I suggest that it is needed to provide a measure of protection for the director. He is head of the Crown Prosecution Service and one criterion that will have to be fulfilled if the process is to work is that the evidence that is sought to be adduced was not reasonably available to the CPS, the police or the prosecutor at the time. It is a measure
Lord Goldsmith: I hope that I did pause and that the noble and learned Lord, Lord Lloyd of Berwick, missed the opportunity, but, given that both he and the noble and learned Lord, Lord Mayhew of Twysden, commented on it, I say simply that I shall not deal again with retrospection. I am sorry that the noble and learned Lord thinks that I did not deal with it satisfactorily; that may be simply because we take different views on the matter. If we return to it we shall have another opportunity.
I am grateful to the noble and learned Lord for confirming that, as he knows from his experience holding the office which I am privileged to hold now, the Director of Public Prosecutions is most certainly independent of government and can be trusted to make difficult decisions. That is the final point. The noble and learned Lord suggests that the director might welcome the protection of going to a Crown Court judge.
Well, the director and his senior staff have to take many difficult decisions all the time. They are frequently misunderstood, sometimes unpopular; it is the nature of the public prosecution service that they must make those difficult decisions, applying the evidence objectively, considering it impartially and deciding in accordance with the statutory tests of the Code for Crown Prosecutors. This case is no different.
The Lord Bishop of Worcester: I am grateful to the noble and learned Lord the Attorney-General for giving way. I do not quite understand why the Government are reluctant to insert a judicial figure into the process, given that that would make clear that the Government regarded a decision to undertake a second investigation of an acquitted person as much more serious than one to undertake a prosecution of a person who has not yet been acquitted. The fact that the Director of Public Prosecutions is a person who can be trusted to make difficult decisions is not in question. What is in question is how we make clear, if the Bill is to be enacted, how much more seriously we regard a decision to re-open a caseit will be a serious case by dint of what the Government have in mind.
Lord Renton: Before the noble and learned Lord replies, it should be borne in mind that the amendment suggests that the leave of a judge of the Crown Court should be obtained on an ex parte application. That makes it very different from many judicial decisions, which must be made after hearing both sides.
Lord Thomas of Gresford: Before the noble and learned Lord replies, the value of the provisionmy initial reticence should not be taken as a sign that we do not support the amendmentis that it makes it absolutely essential for the director and the police to make their case without going to question the acquitted person once again, so that their case does not depend on a re-questioning of the acquitted person but that everything is in place before the DPP's consent is given. That is the value of it.
I answer the right reverend Prelate in this way: the provisions make very clear that this is a more serious business. In order to prosecute someone, even for a serious offence, one does not need a senior police officera commander or assistant chief constableto decide that investigations can be opened; one does not need the Director of Public Prosecutions personally to decide whether the case should go ahead; one certainly does not need a Court of Appeal to decide that it is a proper case before an indictment can be lifted. There is more than enough in the Bill to illustrate how importantly the Government take the need for safeguards; the safeguards are there.
Baroness Anelay of St Johns: I am grateful to all Members of the Committee, who have brought different perspectives to what I thought was a fairly modest and straightforward amendment. As the debate gathered speed, I gathered education, but also resolve. In the development of a relaxation of a rule by which we are all entering new territory, no one can be thought to have experience. However good a DPP is, this will all be new for everyone taking part. This is one safeguard that we need at the beginning of the process. I intend to test the opinion of the Committee.
Resolved in the affirmative, and amendment agreed to accordingly.
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