Criminal Justice Bill

Public Bill Committee, 21 January 2003.

Standing Committee B

Clause 64 - Determination by Court of Appeal

Hilary Benn (Labour, Leeds Central)

Having had the weekend to reflect on the point made by the hon. Member for Beaconsfield (Mr. Grieve), I think that it would be appropriate to debate the matters that he raised when we come to clause 72.

Question put and agreed to.

Clause 64 ordered to stand part of the Bill.

Clause 65 - New and compelling evidence

Ian Lucas (Labour, Wrexham)

I beg to move amendment No. 351, in

clause 65, page 40, line 5, leave out 'and compelling' and insert ', reliable and substantial'.

Eric Illsley (Labour, Barnsley Central)

With this we may consider amendment No. 352, in

clause 65, page 40, line 9, leave out subsection (3).

Ian Lucas (Labour, Wrexham)

Let me make it clear that I strongly support the proposal to give the Court of Appeal powers to reopen cases in which persuasive new evidence comes to light. I tabled the amendments because I have doubts about the wording that is used with regard to the process of determining which matters should come before the Court of Appeal. My concern is twofold. First, the threshold set out in subsections (1) to (3) is too high, and secondly, because of the wording, there is a danger that there will be a determination—or something close to a final determination—of any case that comes before the Court of Appeal before it has had the chance to go back before a jury to be considered in full.

A sifting process is already in place, through both the Director of Public Prosecutions and the Court of Appeal. The DPP will bring the matter before the Court of Appeal only when he has made a determination. The amendment would require new, reliable and persuasive evidence to be put before the court before the matter could be referred back for trial by jury. That seems to me to be the right approach.

I am concerned about the words

''highly probably that the person is guilty of the offence.''

If someone has been found by the Court of Appeal to be highly probably guilty, that creates difficulties for a jury that is aware of that finding in making its subsequent determination. There might be some resistance by the jury to the initial finding. I am

object not to the principle but to the wording. As I mentioned last week, the Court of Appeal can currently find a conviction unsafe and unsatisfactory and refer it back for a retrial. My objection is not to the principle but to the fact the clause as drafted is not helpful. My particular concern is that it is not clear that the clause provides for the defendant to be fully represented.

Clause 67(4) states that the defendant can be present at the hearing. I wish to hear more about what exactly that means. Does it mean that the defendant will be represented at the hearing and will have the right to make representations? I would be grateful to hear from the Minister on those concerns.

Dominic Grieve (Conservative, Beaconsfield)

I welcome the amendments, because the hon. Member for Wrexham (Ian Lucas) has gone to the heart of the issues that arise. If I do not entirely agree with him—although I shall be interested to hear what the Minister has to say about amendment No. 351—I have a great deal of sympathy with the points that he has made about amendment No. 352.

As we shall see later from the amendments that I and my hon. Friends have tabled, the wording of the clause—on the findings that the Court of Appeal must make—gives me exactly the same sense of unease as it gave the hon. Gentleman: namely, that a finding of high probability that the defendant is guilty of an offence appears to be a prejudgment of the decision that the jury must make at the retrial.

I also agree with the hon. Gentleman that, ultimately, the problem may be simply a matter of wording. I find it hard to believe—and I hope that the Minister will respond positively to our amendments later—that a form of words cannot be found that indicates the high test with which the Court of Appeal must be satisfied before it allows a retrial but that does not give the impression that the court has formed a view.

That is of more than academic interest, because although there will be reporting restrictions, it is likely that people who are aware that there has been an application for retrial will examine the statute to see what the test is that the Court of Appeal has to be satisfied with. We shall consider later whether we may be able to prevent the test from being reproduced, but if it is reproduced, the Court of Appeal will appear to be prejudging the issues that the jury must consider.

I would expect the Court of Appeal to make its decision on the basis of the strength of the prosecution case. The court will not have to consider what the defence may choose to present at trial for the jury to consider, except in so far as it may have received representations about the degree of unfairness that may apply to the defendant, in terms of defences that he may originally have wished to make, or matters that he may have wished to put before the court.

I find the wording unfortunate. We must be capable of doing something better with it. The clause appears to be a clear prejudgment of the issues that must be considered at retrial. I shall return to that in greater detail on my amendments, although I fully

acknowledge that the hon. Gentleman has been trying to tackle the same issue.

The hon. Gentleman raises an interesting point in amendment No. 351. What does ''compelling'' mean? ''Reliable and substantial'' may be a better test, especially as that appears to be the test to say that evidence is compelling in subsection (3), albeit that there it is taken with the words,

''when it is considered in the context of the outstanding issues, it is highly probable that the person is guilty of the offence.''

I would be unhappy about getting rid of subsection (3) entirely, as it provides an extra layer of protection for the defendant. Evidence should not only be reliable and substantial but should be taken in context. I would not want the context aspect to disappear. That said, I would prefer to retain the word ''compelling''—although there might be some better alternatives—and for subsection (3)(c) to be altered so as not to give the impression that the jury's decision has been pre-empted.

I am grateful to the hon. Gentleman, and pleased that the Committee has widely registered the fact that there are problems with the current wording.

James Clappison (Conservative, Hertsmere)

My hon. Friend is touching on the nub of the problem. On prejudging the jury's decision, does he think that the jury's view might be affected if it was widely known among potential jurors that the test under subsection (3)(c) had been applied to the case and had been passed?

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely. We shall have to look at how the reporting restrictions will operate. Unless I have misunderstood the thrust of the legislation, I think that they will be far more complicated and difficult to operate than I had previously thought. In particular, there is an issue to do with the extent to which those restrictions apply in Scotland, on which the Minister might be able to reassure us.

It is not beyond the wit of jurors to become aware of the test by which the Court of Appeal sends a case for retrial. The plain meaning of the clause as currently drafted appears virtually to be an indication that conviction is inevitable. When we come to consider the word ''scientific'' we should be wary of an assumption that scientific or other evidence will be the clincher or provide foregone conclusions—juries should certainly avoid those—in such cases. I would assume that the basis for retrial is ''reliable and substantial'' evidence, as the hon. Member for Wrexham said, taken in context. We shall come on to what might be an alternative wording—I do not want to repeat myself later, so I shall hold fire on the matter. However, there must be some alternative phraseology that does not use the words

''highly probable that the person is guilty of the offence.''

The words ''might be guilty'' might be better than ''is guilty'', although I wait to hear from the Minister. This is not merely an exercise in words and semantics—we must get the clause right.

David Heath (Liberal Democrat, Somerton and Frome)

The Committee owes a debt of gratitude to the hon.

Member for Wrexham for the amendments. As the hon. Member for Beaconsfield said, they strike at the heart of the principal objection to the provisions. I speak as a member of the league of non-lawyers on the Committee—I think that we are a minority—and even I can see that the provisions raise serious questions about the conduct of a subsequent trial.

The great paradox is that the higher the test for a retrial to take place, the more hurdles the prosecution must jump to bring a case back and the stronger the indication to the jury that the defendant is guilty. Under the present arrangements, any juror who is aware of the process will know that the prosecutor has not only determined that the defendant is guilty but convinced the Director of Public Prosecutions—in person—that the evidence overwhelmingly suggests guilt.

That will be par for the course for most criminal trials, but there will also be the test applied by the Court of Appeal. Under the clause, the court will be asked to consider whether the evidence suggests that it is

''highly probable that the person is guilty of the offence.''

If the court holds that to be true, its decision is likely—even with the best will in the world and the best possible directions from the trial judge—to influence jurors before they have had a chance to hear the evidence. That will happen even if there is no reporting on the case, although, as we know, outside influences will be brought to bear on juries in such high-profile cases.

I have some sympathy with the view almost expressed by the hon. Member for Wrexham, and a formulation analogous to that for unsafe or unsatisfactory convictions might be a better way forward. As the Bill stands, the Court of Appeal may determine that there is a high probability that a person is guilty.

My objection to what the hon. Gentleman said is the same as that of the hon. Member for Beaconsfield. By rejigging the clause and introducing the phrase ''reliable and substantial'', he would, of course, remove the problem of the high probability of someone being guilty. However, he would also remove the context of the outstanding issues. Any evidence that is adduced may be reliable and substantial but have nothing to do with the terms under which the person was acquitted in the first instance. The problem with the hon. Gentleman's formulation is that the evidence might be irrelevant to the process.

We must get the Bill into a workable form that does not fatally prejudice proceedings, although, as we have heard, very few cases will be handled using this process, because of the difficulties involved. The worst outcome will be if we raise people's expectations that the system is capable of delivering a fair trial, only for them to find that it is not. We must ensure that the wording of the clause works against that outcome.

I hope that the Minister will give the matter a great deal of thought, and we have time to consider alternatives. I do not ask him to reduce the legal

hurdles needed for a retrial but to find a way of formulating the provisions so that they do not innately prejudice the jury that is called to hear the trial. Under the present terms of the Bill, however, they inevitably do so.

Vera Baird (Labour, Redcar)

I share the concerns that have been expressed. As I have said, however, I totally support the principle behind the proposed change in the law. It is important, however, to get the details right. I appreciate that a difficult balancing exercise is required. We must not set the test too low, creating concerns that the police will not investigate a case properly the first time and that people will be prosecuted again and again. On the other hand, we must not set the test too high or too wide. As the hon. Member for North Down (Lady Hermon) powerfully highlighted several times last week, it is possible that the test may predispose a jury to convict.

The clause should establish a very high test regarding the calibre of the fresh evidence and its likely consequences in a trial. Surely, the job of the Court of Appeal is to determine whether there is enough evidence to justify quashing an acquittal and ordering a fresh jury to look at the matter, in which case it should focus totally on the quality of the evidence. Perhaps phraseology such as, ''the evidence must be new and compelling, and it must be essential, in the interests of justice, that a new trial should take place'' would be appropriate. Perhaps that would sufficiently express how powerful the new evidence would need to be—and deter the police from ever thinking that they could jump this hurdle as a result of negligence or neglect—without making any presumptions about guilt or innocence.

Sylvia Hermon (UUP, North Down)

Will the hon. and learned Lady say whether she believes that the words,

''highly probable that the person is guilty of the offence''

replace the presumption of innocence, which is guaranteed by article 7 of the European convention on human rights, with a presumption of guilt before the retrial?

Vera Baird (Labour, Redcar)

The judge should have a duty to restore the presumption of innocence, if there is a gap between what might appear to be so and the actual situation. He could do that by way of a direction to the jury that negates any potential prejudice resulting from the decision of the Court of Appeal. I have considered what sort of direction that might be, but it is difficult to think of an appropriate direction on the basis of the contents of the clause.

Before we move on to consider how the provision might predispose a jury in a certain direction, I want to say something about the impact of the extra wording. In the context of the Court of Appeal, I believe that the requirement is over-wide and unnecessary. It would take the Court of Appeal beyond its function, which is solely to decide whether an acquittal should be quashed and a case considered by a fresh jury. That decision should be taken on the basis of the calibre of the evidence.

It is extremely difficult to know how to protect a defendant against an assertion by the best-known and highest criminal court in the land that it is highly probable that he is guilty. It is almost certain that Lord Woolf, the Lord Chief Justice, will decide the first six or eight cases. He has interfered in all sorts of political issues in the past few days, but that is a separate issue. It is well known that he is the highest judge in the land. By the time that a judge reaches that sort of age and standing, he has about 40 years' experience in the court system and his judgments must be followed, and are followed, by every other court in the land. If such a judge thinks that it is highly probably that a person is guilty, that will be a huge factor and is likely to predispose a jury.

That additional requirement is unnecessary for the decision that the judge would have to take, so let us consider how to restore the presumption of innocence in the face of such prejudice. I simply cannot imagine what a judge could say. If the Court of Appeal had considered the calibre of the evidence and said that it was so new and so compelling that a retrial was essential, the judge could, and would, then say to the jury, ''Their Lordships have rightly deemed a retrial essential, but they have considered only one piece of new evidence and have had no opportunity to consider the defence of this individual. That duty now falls to you.'' In such a case, the jury should accept that the decision is theirs and that there is enough evidence in the interests of justice to proceed to a new trial.

How can one devise a direction along the lines of ''Although their Lordships have said that this man is highly probably guilty, we must start afresh and disregard that''? We must bear in mind the impetus behind the Court of Appeal's adjudication.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does the hon. and learned Lady conclude from that argument that she would be satisfied if there were tests to define the evidence but that there should be no statutory reference to what conclusion such evidence may lead to in the Court of Appeal? Does she conclude that the only matter that the Court of Appeal should decide is the nature of the evidence and that it should not reach a conclusion on guilt or innocence?

Vera Baird (Labour, Redcar)

Yes. That is its function. There is an alternative way of looking at the argument: all the Court of Appeal should do is know the case sufficiently well to put the fresh evidence in context, but it should not know about the defence or know in detail what evidence is likely to be called for the defence. However, if we require the Court of Appeal to say that it is ''highly probable'' that a defendant is guilty, it may shrink from doing so. It may think that that is simply outwith anything that it can express a valid opinion on. That would be a dreadful shame, as it would spoil the whole affect of this legislation. I invite the Government to do some further thinking on this.

James Clappison (Conservative, Hertsmere)

I support the preceding contributions, from my hon. Friend the Member for Beaconsfield, the hon. Member for Somerton and Frome (Mr. Heath) and the hon. and learned Member for Redcar (Vera Baird). It behoves the Minister to

listen to the broadly similar points that were made by a coalition of lawyers and non-lawyers, which is a happy union in the Committee. The hon. and learned Member for Redcar is right: it asks a great deal of the Court of Appeal to decide whether it is ''highly probable'' that a person is guilty on the basis of one piece of evidence.

I speak as one who broadly supports what the Government are trying to do but who doubts whether they have got this part of the mechanism absolutely right. There should be a stiff test to be passed before retrial, but such a test should not deprive the defendant of the opportunity of a fair trial. The hon. Member for North Down was right in her intervention: this does seem to disturb the presumption of innocence. It could also be highly prejudicial if it were known to a jury. The hon. and learned Member for Redcar is also correct to draw attention to the fact that such cases will inevitably be very high-profile, and there is a chance that they may be decided by Lord Woolf. There will be huge public interest in them, particularly in the first of such cases to be decided. What becomes known to the public when the case is being reported will be very important.

I shudder to think of a television reporter outside the royal courts of justice reporting that in such-and-such a very important case the Court of Appeal has just decided that, according to subsection (3)(c),

''it is highly probable that the person is guilty of the offence.''

The Minister must consider such a possibility, given the huge public interest that such cases will generate. He would do well to take on board the concern and look closely at the mechanics.

Dominic Grieve (Conservative, Beaconsfield)

I rise again because I am conscious that we shall soon come to a group of amendments—amendments Nos. 305, 306, 307, 265 and 311—that will not need to be moved if we have properly completed the present debate. The more I look at it, the more convinced I am that those should properly be included in the present group. The Committee will see that I and my hon. Friends seek in that group of amendments to amend to detail of the text. For instance, we would remove the word ''is'' and put in ''appears to be'' guilty. Also, instead of ''the person is'', we would have the clause state that the

''jury would find the defendant guilty''.

Those suggestions were proposed for the purposes of discussion, but it is clear that they are subsumed in the present debate.

The longer the debate, the more I have come to realise that it is not easy to tinker with the wording of the clause in the way that I suggest—nor, I am bound to say, as the hon. Member for Wrexham has tried to do. I share the view of the hon. and learned Member for Redcar that the Government need to go away and think the clause through afresh. Her test, that the clause should be reworked to remove the business of probabilities so that new and compelling evidence should result in a retrial, seems a much better way of expressing what the Court of Appeal would have to do. The downside of our proposals is that they still

preserve the probability issue being determined by the Court of Appeal, which is the very thing that we need to get away from.

I hope that we may have saved time, Mr. Illsley, and I am grateful for your indulgence in allowing me to speak again, but I do not want to start a further debate on an issue that, in my view, will have been exhausted if the Minister can give a positive response.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I hope that I can help, too, by not having to speak to amendments in a later group. As my hon. Friend the Member for Somerton and Frome said, our view is clearly along the same lines. However, I anticipate those amendments; we would certainly prefer the approach argued for in previous debates by the hon. Member for North Down and by us, which was put today by the hon. and learned Member for Redcar: that the Court of Appeal should not come to conclusions but should only judge the quality of the evidence. That would clearly be better, and it would parallel what the Court of Appeal does now when asked to consider possible wrongful convictions. It does not usually come to a view about such cases; it assesses the evidence and then remits it to be considered by another court, although it sometimes takes that decision as part of its deliberations.

If the Minister was willing, as I hope he will be, to take away that part of the clause, we could make significant progress. Irrespective of our views on what sort of evidence should trigger retrials, we might then be able to come up with something that was far less of a worry to the Committee and those outside.

Hilary Benn (Labour, Leeds Central)

This has been an important debate, and I thank my hon. Friend the Member for Wrexham for initiating it. The hon. Member for Beaconsfield was right to say that my hon. Friend got to the heart of the matter in relation to not only this group of amendments, but subsequent ones, and I hope that I can enable the Committee to make the speedy progress that we all desire.

We recognise that we need to get the balance right between where the test is pitched in relation to permitting a retrial and the concerns expressed in previous debates. For example, let us suppose that someone were to argue for treating the matter just like any other. In the normal course of events, the Crown Prosecution Service would decide, having taken another look, just to proceed, and all the people about whom the hon. Member for Southwark, North and Bermondsey (Simon Hughes) expressed concern would think that they might be touched on the shoulder at any moment. Committee members of all parties have recognised the need to set a high threshold for testing the new and compelling evidence, and it is important to focus on that now.

Let me say in passing, with reference to the point made in an intervention by the hon. Member for North Down, that there is no intention to jeopardise or undermine the fundamental principle of presumption of innocence, which is still applied when a retrial starts. We also certainly intend that the defendant would be represented at the Court of

Appeal, and able to make representations. I accept entirely that that should happen.

My hon. and learned Friend the Member for Redcar was right to remind us that in considering clause 65(3), and in particular paragraph (c), we are thinking about what the Court of Appeal should take into account in coming to a judgment on the nature of the evidence. It is not a matter of substituting its verdict for that of a jury if there is a retrial. The Court of Appeal would be examining the evidence, but not being asked to deliver a verdict. That entails a different test.

A difficulty exists, and we must be honest about it. The new evidence should be relevant to the acquittal and it should show, using a pretty high test, that the first acquittal was not right or was unsafe, however one wants to put it. That is an important difference. In essence, an extra stage is being proposed, in addition to what happens in all cases where the CPS considers the evidence.

Every day of the week, the CPS examines evidence and reaches the view that it is highly probable that the person concerned committed the offence, or even that he is bang to rights. It then applies the two tests: first, whether there is a 50 per cent. chance of conviction, which will clearly be heavily influenced by the nature of the evidence, and, secondly, the public interest test. The Court of Appeal would be undertaking an analogous function in respect of the particular and unusual circumstance provided for in part 10. Those are the matters that we are evaluating.

I am persuaded, however, that there is a need to re-examine the provision. A reason for that was touched on by one or two Members—it could be argued that there is an apparent conflict between clause 65(1), with its reference to evidence that

''the acquitted person is guilty'',

and clause 65(3)(c), which states that for evidence to be treated as compelling it should be

''highly probable that the person is guilty of the offence''.

For that reason alone, I intended, before the debate, to undertake further to consider and reflect on the matter. I also give the Committee an undertaking to reflect on the points that all Members have made.

I sense that there is no disagreement about what we want to achieve. I understand the argument that clause 65(1) should not be worded so as to appear to prejudice fair consideration of the case on retrial, although I thought that my hon. and learned Friend the Member for Redcar did a pretty good job, towards the end of her remarks, of setting out the guidance and direction that a judge would give a jury in a retrial in asking its members to put all other considerations out of their mind and to examine all the evidence.

It is important to bear in mind the fact that a decision to order a retrial will be based not only on the new and compelling evidence, but on all the evidence. The jurors would be asked to listen to it and reach a judgment. The two protections that we should hold on to are, first, that the trial judge will be responsible for proper direction of the jury and for ensuring that the trial is fair and, secondly, that we have to trust the jury

to reach a fair verdict on the basis of the evidence that it will be asked to consider at a retrial.

The ultimate protection for the individual and the ultimate answer to the question asked by the hon. Member for North Down on whether the trial can be fair is that we have to trust the jury. I undertake to reconsider the precise wording of the clause, because important points have been raised. No doubt we shall return to the matter.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. If the Government think again, they might find matters easier. Indeed, they could almost start again on the basis outlined by the hon. and learned Member for Redcar.

The Minister's comments show why the clause has been drafted as it has. He used the expression the ''acquittal is not safe'', but that cannot have anything to do with the matter, as an acquittal is never unsafe. To take that approach is to consider the clause's intentions from the wrong angle. Adopting the concept of the acquittal being unsafe creates the type of test that produced the clause as drafted. That is why I like the simplicity of the approach of the hon. and learned Lady, which gets round the issue by saying, ''Here is the evidence, and it is in the public interest that, notwithstanding all the normal protections under double jeopardy, there should be a retrial and the jury can make up its mind.''

In my experience of Committees considering legal drafting, those who draft tend to find a precedent, just as lawyers, when drafting pleadings, always look for guidance in the previous pleading that fits the case. I fancy that the same approach has been adopted here. There are processes by which we can overturn unsafe convictions, but how do we overturn unsafe acquittals? We are dealing with a different animal.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman should not read too much into the words that I have used. I was reflecting on the comment of the hon. Member for Somerton and Frome about unsafe convictions. I grant entirely that the circumstances are different, but I was not trying to indicate that that is necessarily the direction of our thinking so far as the wording is concerned. I was struck by the point that, in circumstances in which a conviction is deemed unsafe, it can be agreed, in the interests of justice, that it should be reconsidered—no more than that.

Dominic Grieve (Conservative, Beaconsfield)

I am not tying the Minister down to a form of words. However, in trying to understand how the clause emerged as it did, I imagine that there was a deep desire to ensure that the test was a high one. As an inevitable consequence, the jury's later decision making has been pre-empted. That is the mischief that needs to be addressed, even if it has occurred unintentionally.

As the Minister pointed out, the consideration of the Court of Appeal, even though it will have power to call witnesses and do all sorts of things, is bound to be partial. The trial process, particularly the defence case in response to any new evidence that emerges, will not have been tested and scrutinised by the Court of Appeal, which will take a decision based on the new, compelling, reliable and substantial evidence advanced

by the prosecution on the basis that it brings a completely different dimension to the case against the defendant. There will not be an opportunity for the defendant's response to that—except, perhaps, some preliminary comments—to be fully considered. That provides the Minister with his let out, and the drift as to how the clause might be reworded.

It is worth repeating that merely tinkering with a few words may be unproductive and may not achieve the intended result. Obviously, the less the wording has to be changed, the better, but the more I look at my amendments, the less I think that they meet the nub of the issue any more than the Government's original draft does.

David Heath (Liberal Democrat, Somerton and Frome)

I concur, although the Minister helpfully said that he would consider the issue. I therefore want to implant in his mind the critical factor, which the hon. and learned Member for Redcar expressed so well. It is not for the Court of Appeal to determine the defendant's guilt, but for the jury in the subsequent trial. It is difficult to sustain the idea that we should include phrasing implying that the Court of Appeal may determine guilt on a partial review of the evidence—that would inevitably be its lot in the process—or that it would not prejudice the jury's view by transmitting its decision to the subsequent trial.

I hope that the Minister principally addresses the point that it is in the interests of justice and in the public interest for the jury to consider the evidence in the round, and that includes any new evidence, which must be reliable and substantial, as we shall discuss. It is not for the Court of Appeal to determine explicitly, as the clause requires, the probability of guilt on the part of the defendant. If the Minister accepts that principle, he will start the process of considering the rewording of the clause on the right basis. I hope he confirms that that is his view.

Ian Lucas (Labour, Wrexham)

I am grateful to my hon. Friend the Minister for his assurances, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No.334, in

clause 65, page 40, line 5, after 'compelling', insert 'scientific'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 335, in

clause 65, page 40, line 7, at beginning insert 'Scientific'.

No. 336, in

clause 65, page 40, line 9, at beginning insert 'Scientific'.

No. 271, in

clause 65, page 40, line 9, after 'if', insert

'it is scientific in nature and'.

No. 337, in

clause 65, page 40, line 24, at end add—

'(8) In this Part ''scientific evidence'' means evidence derived from the analysis of DNA'.

No. 338, in

clause 66, page 40, line 33, after 'new', insert 'scientific'.

No. 339, in

clause 66, page 40, line 38, after 'new', insert 'scientific'.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Amendment No. 334 stands in my name and that of my hon. Friend the Member for Somerton and Frome, and is supported by the hon. Member for Beaconsfield and his hon. Friends. The other amendments are similarly supported, although amendment No. 271, which has a similar goal, was tabled by the hon. Member for Beaconsfield and his hon. Friends.

Our amendments argue that the new evidence that triggers the processes that we have discussed should be limited to scientific matters, and that has two obvious implications. First, we are addressing the fact that the police see advances in science, particularly as regards DNA, as the most significant development in the investigation of crime and one that may help to clear up a significant number of cases. The other side of the coin is that it may be wise, if we are thinking of removing the rule against double jeopardy and allowing retrials, to limit to scientific issues the evidence that may allow retrials to occur. However, that would preclude the other reasons why evidence might come up, such as—in particular and most worryingly—the police and those investigating matters not doing their job thoroughly the first time.

The greatest concern among the public, in particular the informed public who contemplate such matters, is that if we allow retrials after people have been found not guilty, there will be an incentive for the police to have a second go when they did not get there the first time. That may countenance or condone less than satisfactory investigation the first time.

Let us take the two cases that we have looked at before. There might not have been a conviction in the Stephen Lawrence case because the investigation was not done properly. That appears to be the implication of the report that followed the case. That might apply to the Damilola Taylor case, although that is less well evidenced by subsequent inquiry.

On the other hand, there are many cases in which the police have already started to produce scientific evidence that has been highly influential in bringing verdicts. I am a lawyer and my hon. Friend the Member for Somerton and Frome is a scientist, so I hope that he will shortly make a contribution on the science of the matter. I ask the Minister to put on record what the Government understand by scientific evidence if the amendments were to be accepted and the new evidence limited to scientific evidence. DNA is obviously the main type of evidence, although others could be included. What would the Minister exclude by way of new evidence, if the provisions were to be limited to scientific evidence?

Sylvia Hermon (UUP, North Down)

I am most grateful to the hon. Gentleman—I can scarcely contain myself. I ask him to address two points. First, under the clause, evidence is new if it was not available at the time of the acquittal. Since DNA has been routinely available for

a number of years, would the hon. Gentleman's amendment not confine the operation of the provisions to older cases? Secondly, I ask him to consider the fact that his amendment would exclude the calling of a live witness who would be able to give new and compelling evidence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall deal with both matters. First, there is an interesting debate about whether the DNA evidence was available in a case. I understand the hon. Lady's point, and I want to develop it. My understanding is that the discovery that allowed DNA to be used as evidence was made about 18 years ago. My further understanding is that it has developed into a significant element in investigation in that period. In addition to the original sources of DNA, such as skin or semen samples, the checking of other physical attributes, such as the nose, is being developed. The science is continually evolving.

It is perfectly proper to ask what the Government have in mind; whether new and compelling evidence—or whatever test is agreed to—is to be limited to scientific evidence only, and whether it would make a difference if that became new at the moment at which the investigation was done or was in theory available 18 years ago, although no one had done the work. There is now a database that holds some 1.5 million people's data. It holds the data of all those who have recent previous convictions. It can also hold data on people who have no recent previous convictions, or no convictions at all.

Last Session, the Government pushed through legislation, which we opposed, to allow data to be collected and held on people who are arrested and released. Evidence collected by the police as part of an investigation is no longer automatically destroyed when a person is released without charge or found not guilty. We opposed that legislation and continue to oppose it. It is entirely wrong that we should have a Big Brother state, which is not content to collect evidence on people who go through the criminal justice system, but collects evidence on people who are not found to have done anything wrong.

My first set of questions, therefore, relate to the question asked by the hon. Member for North Down. Would DNA come within the remit of new scientific evidence, and which other scientific evidence would come within that remit? In theory, DNA evidence could have been collected up to 18 years previously. Would such evidence still be considered new? Obviously, some inquiries will go back to acquittals that took place longer ago than that, if the people involved are still alive.

Sylvia Hermon (UUP, North Down)

Would not that issue be covered by clause 66? Under that clause, the court must decide whether it is fair and in the interests of justice to use evidence from 18, 20 or 25 years ago. Such evidence may not be available to a court in a retrial because of the length of time that has elapsed.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We shall have to debate how fair it is to use evidence from a long time ago, but to be fair, that argument is not as strong as some others. If it is reasonable for inquiries to be made, 10, 20 or 30 years later, into whether Hanratty was guilty of the A6

murder, it is equally reasonable to reopen the case of someone who was acquitted that long ago. Obviously, the older the evidence is, the more necessary it is to regard it with suspicion, for two reasons. First, in the case of personal evidence, memories fade and confusion is more likely. Secondly, there is a greater risk that old scientific evidence will not be as pure, clear and unequivocal as new evidence.

The hon. Lady's second question was whether the amendment would exclude other non-scientific evidence, such as someone coming forward and saying, ''I haven't said anything before but I did it'' or—much more likely—''I saw someone do it but I did not say anything because I am their spouse and I felt loyal, but I cannot go on concealing the secret.'' I am probing to ascertain what sort of evidence the Government consider might be excluded, were we to limit this precondition to scientific evidence. Although there might be a strong argument for including evidence from a key witness who came forward later, we would not want to include such evidence if the only reason that that person did not come forward before was because the police never pursued that line of inquiry. It would be entirely wrong for the police later to produce a witness to whom they had not thought of speaking before. It would be different, however, if a witness to whom the police had spoken had said in evidence, ''The accused was in Brighton when the murder happened in Gateshead'', but later changed his story, confessing that his previous alibi evidence had been untrue. I understand the difference between the two scenarios. We must be sure that we do not countenance the inclusion of any evidence that could have been collected before but was not collected because the investigation was inadequate.

The third big question—although only partially relevant at this stage—is, how influential will new scientific evidence be? I do not claim to be an expert, but I have read about the probabilities of DNA evidence. Some papers that I read, and partially understood, talk through the theories of probabilities and Bayesian theories. They deal with the courts' decisions on when one can introduce arguments about probabilities into the scientific evidence debate. To put it bluntly, I am eager for the Minister to place on the record the Government's information on such matters.

Many people believe that DNA is unique to an individual. It is not; identical twins share the same DNA. Moreover, there is about a one in 3 million link in a population in this country of about 60 million. Therefore in every 3 million people there may be someone who has similar DNA. There are of course many arguments about how the jury, the prosecution or the defence might interpret DNA theories. Will the Minister give us a definitive statement on the rules concerning what courts may be told—and the crucial test for us is what the Court of Appeal would be told—about the relative and probative value of new scientific evidence, particularly new DNA evidence? That is fundamentally important.

I have two other points to raise at this stage. My understanding is that the scientific evidence may be of very good quality, but that damp or the conditions in which it is kept may damage its quality and probative

affect. Environmental circumstances such as where DNA evidence is collected, where it is held, and how long after the event it is collected may make it less influential. Dangerously, as a result of reading the popular and other press, the presumption is now generally abroad that DNA evidence, which was not used in a court case before, if produced will be conclusive. My understanding is that that is not the case. The public presume that the major new scientific evidence in this context is DNA evidence, but there are other sorts of new scientific evidence to be considered.

Those who look after the Forensic Science Service—I quote Dr. Bob Bramley, the custodian of the database—say of DNA:

''It is now recognised by the police as one of their most powerful intelligence tools.''

A spokesman from the Forensic Science Service added that the chance of finding two full DNA profiles that appear the same but which are not from the same person is possible but very slim. To return to the quotation:

''But we are very aware of this; it is not something we have not considered.''

There is all the difference in the world between probative or conclusive evidence, and strong evidence that contains the slim possibility that it may not relate to the defendant. It is helpful therefore to have a debate on opening such a large set of gates. The hon. Member for North Down knows that I, like her, need to be persuaded. I understand the strength of the argument about scientific evidence, but Parliament should not simply sign up and say, ''Yes, this is all fine. This will be the answer to all unsolved crime.'' We must investigate what scientific evidence it is that we are discussing. Therefore, I should be grateful if the Minister would deal with the concerns that we should limit any ''new'' evidence to that which is clearly persuasive, and certain scientific evidence falls into that category.

I wish that the Minister would also deal with the question raised by the hon. Lady as to whether DNA evidence would count as ''new'', given that the science has existed for around two decades, as well as the question whether it would be better, at least initially, to limit any retrial on new evidence to that sort of evidence. Moreover, I want the Minister to ensure that when we come to a judgment about those matters we can be satisfied about the strength of scientific evidence, so that proper assessments can be made of how effective the evidence might be, should be or would be in persuading the Court of Appeal that it falls into the categories that the hon. Member for Wrexham mentioned.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful for the hon. Gentleman's opening remarks. Undoubtedly, one of the clause's key issues is whether we should seek to limit to certain categories the new evidence that can be adduced.

I wish to provide some answers to the questions that the hon. Gentleman raised. I shall see whether the Minister agrees with them, because one feature of the

provision is that there is a belief in the mind of the public that scientific advances have led to a situation in which it is possible years after the event to come up with evidence that, once established, completely satisfies everyone that the person has committed the offence. By that I mean scientific evidence and, in particular, DNA evidence.

I shall seek to illustrate to the Committee that that belief is far from being a reality. DNA evidence, although it may be instrumental in securing a conviction, does not come up to that standard. It may in future, but it does not at present. However, before I deal with that, because that comes under scientific evidence, the Committee will see that I have lent my name to the amendments for scientific evidence alone to be admitted. Indeed, amendment No. 337 limits scientific evidence to evidence derived from DNA analysis. I shall come to that at the end because, on reflection, that is to go a step too far, for reasons that I shall explain.

To leave scientific evidence to one side, should we be limiting and excluding other evidence, which would effectively be the oral evidence and recollection of new witnesses? There is no doubt that, as the hon. Member for Southwark, North and Bermondsey said, the longer the elapse since the first trial, the more difficult it is to evaluate oral recollection.

First, it becomes extremely difficult to test that evidence by reference to other people or surrounding circumstances. Were I to tell the Committee that I had jumped up and down on the desk in front of me five minutes ago, it would not be difficult for hon. Members to conclude that I was not telling the truth. However, were I to tell the Committee that I had done the same thing on a visit to the Houses of Parliament 25 years ago, it would be extremely difficult to establish whether that comment was true or false.

Secondly, the longer the time that elapses, the more the recollection of an individual who is genuinely trying to help the court becomes a risky business to accept. There is nothing more misleading than the truthful witness who gives false or mistaken evidence—their truthfulness and integrity shine through because of what they say and how they speak, but it does not mean that they are right. For instance, I remember witnessing a road accident at the age of 18. Parts of it are engraved on my memory, but it would be a risky business to rely on that recollection today for details of what happened rather than the giving of evidence only three months later. Inevitably, because of the way in which it has located itself in my mind and remains there, it is likely to be affected by the passage of time, and important elements may have slipped out. Indeed, it is even possible, as one realises when one starts recollecting things from one's childhood, that others may disagree with one's recollection of certain events; one may have imagined that something had happened, yet genuinely believe that that was part of the reality.

We do not know whether retrials will be taking place one year or even two or three years after the previous trial, but the current state of scientific evidence suggests that the majority of the trials with which we are concerned are likely to concern episodes

that took place some time ago. I therefore have serious reservations about admitting new categories of evidence that, by their nature, are not capable of being analysed and tested objectively, as scientific evidence can be. The Committee must consider whether we should confine the evidence to scientific categories. I strongly suspect that few retrials will not depend on scientific categories.

My anxiety is that, having started with scientific evidence, prosecutors may be tempted to carry out trawls to see whether, many years afterwards, they can beef up a case with little titbits of oral evidence that might not previously have been available or that someone might have put forward. That could turn out to be a dangerous process. Of course, that may be precisely the sort of area that the Court of Appeal should deal with—although it is interesting to note that the Court of Appeal can choose what should be included or excluded at the subsequent trial. That is another issue on which I should be grateful to hear from the Minister.

Once the Court of Appeal has decided on a retrial based, for instance, on DNA evidence, is that the only extra bit of evidence that can be admitted? I am not by any means persuaded. We need some clarification. Having decided to admit extra DNA evidence, can the Court of Appeal say, ''There is a desire to admit the evidence of Mr. X, but we will not allow it''? That is something that the Committee needs to consider.

I now turn to the issue of scientific evidence. As is apparent from a brief study of the issue, DNA is by no means a foolproof method of carrying out identifications years after the event. The first reason was advanced very persuasively by experts who had been working for the Government, and who had advised the Forensic Science Service. That simple point that appears in the service's booklet, which states:

''The increasing sensitivity of DNA systems mean that individuals must be constantly aware of contamination issues. Items may be contaminated by handling without gloves or adequate precautions and from saliva transfer due to talking, coughing etc. over an unprotected item. Care must also be taken to ensure items do not cross contaminate by coming into contact with one another.''

In his opening remarks, the hon. Member for Southwark, North and Bermondsey mentioned the Hanratty case, in which the Court of Appeal decided not to overturn the conviction. However, it was apparent that although the scientific evidence appeared to suggest that the DNA on the key items connected with the murder was Hanratty's, the forensic scientists had a problem—as they maintained throughout the case, and as was explained to me in detail by a forensic scientist who was involved. The problem was that although the handling of the exhibits in the early 1960s was compatible with the standards to be expected at that time, the risk of cross-contamination was a live issue, which could not be excluded.

The fact that modern scientific handling methods were not used originally, because those concerned were not even looking for DNA, raised a real question in the mind of the scientist who spoke to me. He did not think that the Court of Appeal's refusal to overturn

the conviction was wrong, because there was other compelling evidence, but from the point of view of a scientist considering the matter in the abstract, he said that he could not possibly have said that he was satisfied as a result of the tests that Hanratty must have committed the crime. The handling issues, which it is impossible to resolve after 30 or 40 years—partly because of the lack of oral evidence about what was done with the samples—mean that a question will always remain. There are limits.

Cases of the type that may well arise to be dealt with under the clause will in many cases, I believe, involve the handling of material long enough ago for modern handling systems not to have been in use. Also, we cannot get away from the fact that if there is a challenge to the apparent DNA evidence on the basis that there might have been contamination, the passage of time will make it extremely difficult to deal with the matter in a way that is fair to the defendant. I do not believe that DNA evidence will prove the great crime-solver. I suspect that if the Court of Appeal is doing its job properly a number of cases may go before it with claims that DNA provides persuasive evidence, but that the Court of Appeal may feel constrained to say that a safe trial will not be possible.

The hon. Member for Southwark, North and Bermondsey raised the point that DNA evidence is a tool relating to probabilities, but historically it has been astonishingly open to misuse—so much so that the Court of Appeal issued a defining judgment in the case of Doheny and Adams in 1996. That is the most cautionary reading, which I recommend to the Committee as it is extremely comprehensive, about the abuse of DNA evidence by the prosecutor in presenting his case to the jury. More important, I think, there is a general public abuse of DNA evidence, relating to the understanding of what it can or cannot show.

The case established clearly that it is necessary to be very careful not to mix up the probability of an occurrence in the population with the probability that the person in question committed the offence. That is precisely what the prosecutor had begun to muddle. What emerges, as the hon. Gentleman rightly said, is that in truth a person's DNA is not unique, as far as the analysis that is currently possible goes, although in future it may become so. Perhaps it will become possible to refine it further. Therefore, it is likely that in most cases other people in the country—not necessarily identical twins—will have identical DNA to that of the person who is suspected of committing the offence.

The Court of Appeal laid down very strict guidelines, which are worth reading out.

''The scientist should adduce the evidence of the DNA comparisons between the crime stain and the defendant's sample together with his calculations of the random occurrence ratio.''

That is the occurrence within the population. In this country 25 or 26 people might have that occurrence. In addition:

''The Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.''

I am picking out key quotes.

''The expert will . . . give the jury the random occurrence ratio—''

and nothing else.

''The expert should not be asked his opinion on the likelihood that it was the defendant who left the crime stain,''

nor should the prosecutor make suggestions to the jury that that can be concluded.

The issue is complex. The prosecutor argued that as only one person in a million has a DNA profile that matches that of the crime stain and the defendant has a DNA profile that matches the crime stain, ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime. That is a fallacy. The truth is that DNA can serve its purpose only by providing an indication that might help to exclude someone from the category of person who committed the offence. Otherwise, taken together with other evidence, it might be sufficient to satisfy a jury that a person is linked to the offence and has committed it. In many circumstances in which people have been occupying the same premises, particularly in cases such as rape, a defendant's DNA might be present quite innocently at the crime scene without contamination having taken place.

I am sorry to have taken so much time, but it is important for the Committee to understand that this is not a foolproof method by which, 20 years after the event, scientific knowledge suddenly enables one to turn round and say that an individual is guilty of an offence. It does no such thing.

Although I put my name to the amendment that requires scientific evidence to be limited to DNA, I did so merely for the purposes of probing. My view is that that is wrong. There are many other standards and categories of scientific evidence that might be of use to a court in reaching a reasoned decision, and those could develop further. Corneal evidence can be helpful in terms of identification, and I am told that ear prints might prove to be of interest. Voice recognition could develop to the point at which it is sufficient to give a clear indication of a person's identity.

We come to the old subject of fingerprints. They provide another great cautionary tale, which the Committee might bear in mind. When I was first at the Bar, one had only to find 16 matching features in a pair of fingerprints and it was considered to have been established with certainty that the fingerprint belonged to the individual. Now we are aware that that is not the case; it is much more complicated. The evidence can only give a degree of probability and point out how many matching features are present.

I am grateful to my hon. Friend the Member for Woking (Mr. Malins), who cannot, unfortunately, be here this morning. He attended the recent meeting of the Judicial Studies Board, which was shown an exercise in which some 40 scientists, all recognised as experts in their field, were given two fingerprint samples to compare. One expert saw 14 points of comparison and another 54, while the majority saw 20 to 25 such points. Public perception is that fingerprint

evidence is in some way foolproof. Although it has, historically, been viewed as the determining issue, it is nothing of the kind; it is merely a tool to aid understanding. I hope not to go over old ground, but the Minister will remember that earlier we debated the question of compelling defendants to hand over the names of the experts that they consulted, as a weapon, I think, with which they can be browbeaten when they go to court. I hope that my points can be a cautionary illustration of why nothing of the kind should occur, and that the Minister may even at this stage reconsider the matter.

Sylvia Hermon (UUP, North Down)

Will the hon. Gentleman address again the issue of clause 66? We cannot consider clause 65 in isolation. The new and compelling evidence that must be considered must be weighed against the needs of a fair trial. Clause 66(2)(b) mentions

''the length of time since the qualifying offence was allegedly committed''.

The hon. Gentleman referred to older cases, such as those from 20 years ago. However, that is ruled out by clause 66.

The hon. Gentleman also referred to DNA and fingerprint testing. Does he think that the court will again rule that there will not be a fair trial under clause 66(2)(c) if, as specified, that evidence was available at the time,

''but for a failure by an officer''

to take it? Fingerprints, DNA and time rule out a great swathe of cases. Which cases does he think those clauses will apply to?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady makes a good point. An argument that was put against the procedure that we are embarking on a process to change old systems is that the number of cases covered is likely to be extremely limited. I have always thought that, and the hon. Lady has heard my views. We are being responsive to public pressure—perhaps excessively so—to see that justice be done in cases in which it appears manifest that someone is guilty of an offence of which they have been acquitted.

The passages that the hon. Lady quoted from clause 66 are good safeguards, and I am pleased that they are there. I would assume that in many cases people will be quite surprised to discover that cases cannot go beyond the Court of Appeal—they might not even get to the Court of Appeal if the Director of Public Prosecutions does his job properly. People might simply conclude that there is no possibility of a fair trial. That is a very real issue. There is a belief among the public—which has been fuelled by politicians, I am afraid—that the provisions will provide a great new way of solving injustice and doing justice to the victims. However, I suspect that the provisions will be limited in scope. That said, however, there might be cases in which, notwithstanding all the matters that the hon. Lady described, the tests can be satisfied. Speaking personally, I shall not stand in the way of the Government as long as the tests are satisfied and the legislation is satisfactorily limited.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Gentleman referred to the fact that there has been some political fuelling of the

belief that the provisions will suddenly produce a load of convictions of people who have previously been acquitted. Does he share my concern that senior police officers also appear to have been too enthusiastic about the prospect of dealing with a lot of unsolved crimes? Some have strayed into incautious remarks, suggesting that the provisions will manage to bring justice in cases in which justice has not previously been satisfactory. Does the hon. Gentleman think that they ought to be more careful?

Dominic Grieve (Conservative, Beaconsfield)

Senior police officers are like any other member of the public: they have their emotions and feelings. I cannot believe that the average chief officer who makes such proclamations has been to the depot—wherever it is—where the Government scientists keep the samples and exhibits, or that such evidence has not been examined or is unlikely to be examined again. I suspect that the remarks that the hon. Gentleman referred to are expressions of hope. However, I agree that the trouble is that people's hopes can be raised well beyond what is possible.

Vera Baird (Labour, Redcar)

Is not this series of amendments, which would limit new evidence to scientific evidence, ill advised? I ask that particularly in the light of the example that the hon. Gentleman has just given of 40 different fingerprint experts with 40 different views. Would their views constitute scientific evidence? I rather doubt it. Their results may have been detected with a magnifying glass and a tin of powder, but that does not make their views scientific—they are purely a matter of opinion. Some advance in psychiatry might produce psychiatric evidence that was not available at the outset, but psychiatry is described very much as an art, not a science. The hon. Gentleman is therefore in danger of excluding a great deal.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Lady makes a good point. I would consider fingerprint evidence to be scientific evidence, although all scientific evidence is ultimately a matter of opinion. A series of analyses is carried out on material or an occurrence, and someone gives an opinion as to the conclusions that can be derived, so there is inevitably a human dimension. As I said, however, the merit of limiting evidence to scientific evidence is that it would exclude the possibility of simple oral recollections of facts and events being brought in. The proposed wording could perhaps be different, but we are trying to concentrate minds on the key issues.

The hon. and learned Lady makes a perfectly reasonable point, and I shall be interested to hear how Committee members view the safeguards, and how they see the process working in practice. I shall also be grateful to hear from the Minister.

I have taken up quite enough of the Committee's time, although I hope that my points will be of use. This is a difficult issue. I am convinced that there will be far fewer retrials than the public think. I am also convinced that scientific evidence is not without its difficulties, from which I conclude that I would not want to limit scientific evidence to DNA. All scientific evidence—or forensic evidence, depending on what one wants to call it—has shortcomings, but one could argue that evidence based on human recollection has even more.

Desmond Turner (Labour, Brighton, Kemptown)

For once, lawyers do not have all the answers. Some of our learned colleagues are in great danger of mixing up science and technique, which are quite different concepts. If we are not careful, we shall get into yet another debate about words, which will lead absolutely nowhere.

What matters is the quality of the evidence—whatever form it takes—and whether it satisfies all the other tests in clauses 65 and 66. If those tests are consistently and thoroughly applied, it will not matter whether we are talking about an object, forensic evidence or even oral evidence.

If we are going to describe the evidence required, I would prefer us to use the word ''forensic'' instead of the word ''scientific'', because it is much more specific. The science is in assessing the quality of the evidence; it relates to the method applied, not to the technical details. It is the quality of evidence that matters. I therefore strongly urge the Minister to resist the amendments, which would create far more difficulties than they resolved.

David Heath (Liberal Democrat, Somerton and Frome)

My hon. Friend the Member for Southwark, North and Bermondsey kindly described me as a scientist, but I would not describe myself as anything of the sort. My first degree was in a scientific subject—physiology—but that perhaps only qualifies me to lay claim to an understanding of some of the principles and vocabulary involved.

We are seeking to probe three things with the amendments. First, what sort of evidence, outside the field of scientific investigation, would the Minister consider suitable to be brought forward? Clearly, it would have to be relevant to the context of the original acquittal. The hon. Member for North Down has already drawn the Committee's attention to clause 66, which is relevant to this question. There is a time-expired quality to much of the evidence that is not the result of improved techniques of one sort or another; that would, I think, limit the amount of other evidence that might be adduced and might pass the test in clause 66. It would be helpful to hear from the Minister what evidence he would see as relevant.

When the review of double jeopardy was instigated, the original argument for re-examining a long-established principle was that we now had the whizzo new technique of DNA testing and it was wrong not to use it in court proceedings where it could make a difference to the quality of the evidence. However, the Bill will extend the revision much wider than the use of DNA evidence, so we need to know what the Minister has in mind.

One of our amendments would limit the definition of scientific evidence to DNA testing; I want to dwell for a moment on such testing, which is an extraordinarily powerful method of providing evidence. I think that everyone accepts that it is a valuable tool, at least in investigative terms, and that it has some value as evidence, in securing convictions. However, difficulty arises in conveying to a jury, and even to the odd judge, the value of that evidence and the fact that it is not incontrovertible.

There is not one sole explanation to be drawn from DNA matching. These matters bring the argument into the realm of probabilities and Bayes' theorem, which my hon. Friend the Member for Southwark, North and Bermondsey referred to. It relates to the assessment of the basic probability of a match, but also has a role in relating that to the context and circumstances to which probability is being applied. There are difficulties, however, and the legal system has introduced its own to the process.

In referring to the case law, the hon. Member for Beaconsfield might have quoted the conclusion of Lord Bingham of Cornhill in 1998 in R. v. Adams, when he was asked about the admissibility of evidence on the statistical application of Bayes' theorem and the mathematical formulae—they are very complicated, and beyond me as a mathematician. He said that the introduction of mathematical formulae was

''a recipe for confusion, misunderstanding and misjudgment, possibly among counsel, probably among judges and certainly among jurors''.

Let us set aside for a moment the assessment of the relative numeracy of those different classes of individual. I suspect that many jurors would prove more numerate than those trained in the legal profession, who do not normally have a scientific or mathematical background, although that is just a cultural phenomenon. The conclusion reached by Lord Bingham means that many relevant cases are based on the assertion of probability, rather than on an understanding of the context in which the probability was deduced, enabling the jury to reach its own conclusions.

Under current techniques, there is the possibility of more than one person being identified under the same DNA analysis. That may be so for the world's population, but it is a basic fallacy that we should deal with the world population. Considering the probability of a match among the world population is nonsense, because DNA types are more likely to be similar in a closely related population. Taken to the extreme, in a population that is interrelated because of lack of movement over a long time, it is much more likely—there is a much higher probability—that similar DNA patterns will emerge.

For example, in my area of the country, the Somerset levels—I can say this, because my family originates from there—people are remarkably interbred. That has medical manifestations. I used to practise in Burnham-on-Sea, and I could tell which of my patients came from the levels because they had ophthalmic abnormalities. Those congenital abnormalities were the result of the gene pool being considerably smaller in that area. Each community was originally on an island and people did not move from theirs, or if they did, they moved only to the next island.

I offer the following illustration. A little while ago, the remains of a cave dweller in Wookey Hole were analysed for DNA purposes and, as an experiment, an analysis was carried out on some local people to see whether there were any similarities. Lo and behold,

Mr. Targett, a history teacher at the Kings of Wessex school in Cheddar, was found to have such a close DNA match to the cave dweller, who lived many thousands of years ago, that it was thought highly probable that his family had, over about 4,000 years, achieved a total migration of about 4 miles. I do not ascribe that to lack of ambition and I relate the story only because it illustrates the fact that in a small community there is a much higher risk of mismatching due to the much higher probability of similar DNA traces.

DNA evidence is normally used to corroborate identity or location, and to argue against alibi evidence. Inherent in that is the possibility not only of an innocent explanation—perhaps it is the result of contamination; perhaps the genetic material belonging to the individual comes to be there quite properly—but of the DNA belonging to a different individual who happens to have a close genetic match to the defendant. It is important to recognise that.

I move on to the other scientific evidence that might be adduced. As the hon. Member for Beaconsfield said, it is a burgeoning field. Biometrics will play a much bigger role, not only in the investigative and judicial processes, but in matters such as security, and a lot of work has been done on it here and in America. On Friday, I visited the university of Kent at Canterbury, which now has a forensic science department. That is a good thing, because it is important that we keep up to date with developing technologies.

The Police Information Technology Organisation has commissioned a lot of that work, and although there are many definitions of biometrics, the organisation's definition describes it in this way:

''The automated identification or verification of human identity through measurable physiological and behavioural traits.''

Consider the second part of that—behavioural traits, which bear on the point made by the hon. and learned Member for Redcar. I have serious problems with the state of psychology if it accepts them as incontrovertible evidence of anything. Psychology is a young, developing science, yet the door is slightly ajar for developing psychometric analysis techniques to be adduced as compelling evidence.

The experience of psychological researchers is that for every genuine advance there is a cul-de-sac. The cul-de-sac route might lead to appalling results for a defendant if it were adduced as compelling evidence. Even hard science, which considers physiological traits, includes iris corneal recognition patterns, ear prints, handwriting analysis and voice recognition techniques. The problem with some of those is that they can be simulated to avoid detection, and for every bit of technological gadgetry that is used to recognise voices there is the equal possibility of producing a gadget that will disguise them.

The basic problem is how to assess the evidential value of what appears to be a foolproof scientific technique. Most people who study the processes will say that science is never foolproof, that it is always a matter of probabilities and that no one can be certain about anything. All that can be said is that a theory

has been tested and so far has been proved correct, so the probability is that it will be correct the next time also.

Is photographic enhancement—the use of computers and image recognition vastly to improve the recognisability of an image on a photograph or on film or video footage—an acceptable scientific advance? That brings me back to the matter raised by the hon. Member for North Down. Is the fact that a film can now be better analysed than when it was available to police at the time of the original trial new evidence? I suspect that it is. If so, at what point do we determine that that new technique can be interpreted as new evidence? That is a critical factor.

We might also consider techniques other than those used in identity recognition—better computer analysis of financial data, for example. One problem with serious fraud cases is that there may be a vast amount of information to be analysed. Perhaps it may be analysed at an early stage, but only if the entire resources of the country were put to work. However, at a later stage, there might be a single computer that could do the same job in days. Is evidence new if it is arrived at by a technique that is not, in essence, different from that used originally, but which has simply been speeded up by the application of new technologies?

Paul Stinchcombe (Labour, Wellingborough)

The hon. Gentleman is making some interesting points, but the definition of new evidence is set out in clause 65(2):

''Evidence is new if it was not available or known to an officer or prosecutor at or before the time of the acquittal.''

David Heath (Liberal Democrat, Somerton and Frome)

That is precisely the point. The example that I cited involved analysing large amounts of material. The evidence was available, but it could not reasonably have been obtained because the resource implications would have been too substantial. Modern techniques would make it possible to adduce that evidence by running all the receipts through a powerful computer capable of recognising patterns that an individual could recognise if his brain were big enough. Certain questions of definition need to be considered. I certainly do not believe that we should be too prescriptive, but perhaps the Minister will expand his world view to all the possibilities and give thought to how we could provide better definitions.

I end by making a suggestion. Because technology in this area is developing so fast and because it will not be clear to people engaged in the law—in whatever capacity, including jurors—how to assess the validity of evidence, the subject should be kept under review. However, I do not know whether the Law Commission could set up a technology sub-committee to review new techniques and give guidance on their application in forensic work. I take issue with the hon. Member for Brighton, Kemptown (Dr. Turner), because ''forensic'' simply means relating to a court, so a definition including the word ''forensic'' would have no meaning at all. That word is often used as shorthand for science, but in the phrase

''forensic science'', the word ''science'' means science and ''forensic'' refers to court procedure.

There is a case for such a review, which could give clear guidance to judges on the evidential and probative value of certain techniques and regularly update them. Without that, I fear we shall see yet another example of the legal system finding it difficult to keep pace with the rate of change in science and technology, which, I believe, will gallop ahead in the next few years.

Vera Baird (Labour, Redcar)

I urge the Minister to resist the amendment that would limit the evidence to the scientific. Our debate seems to have moved from that question to wondering whether science can ever produce sufficiently compelling evidence, even if we limit the evidence to the scientific, although that is somewhat difficult to follow.

The hon. Member for Somerton and Frome suggested that new evidence should pass tests set by the Law Commission before being admissible, but new scientific evidence usually has to fulfil certain criteria before being accepted by the courts, so that it does not become a major problem. We are discussing many issues that the Court of Appeal will have a duty to consider in deciding whether evidence is compelling. All the arguments made on the amendment's weaknesses can, and no doubt will, be advocated by representatives of legally aided defendants.

Scientific advance has been important in building up the momentum behind this change. Developments in the use of DNA evidence have made us all appreciate how an absolute bar on retrial can be extremely unjust to victims. I had intended to take the hon. Member for Southwark, North and Bermondsey to task for talking about the Big Brother state and for unfairly criticising the police and Crown Prosecution Service over the abortive Stephen Lawrence prosecution. That was a private prosecution, brought against the advice of the police and the CPS. It was brought by my head of chambers; it was also brought against my advice—just to show how much notice anyone takes of me. It is not right to blame the state for that.

The Committee will recollect that last week I referred to a campaign waged by the mother of a murder victim. However, if scientific evidence were the only way to trigger a fresh trial, her case would fall outside that. I spoke to Ann Ming, the mother of Julie Hogg, who was murdered by the man who was acquitted, on the telephone yesterday. She said—I do not pretend to understand the terms in which this occurred—that that individual gave evidence that he had killed her daughter. If that is not a compelling case for a retrial, I do not know what is. It has nothing to do with science.

Hilary Benn (Labour, Leeds Central)

The hon. Member for Somerton and Frome invited me to expand my world view. Let me tell hon. Members that there is not a nanosecond that I spend in Committee during which my world view is not expanded. That has certainly been the case in this debate, which I can only describe as educational. I have learned a great deal about the genetic make-up of the hon. Gentleman's constituents in Somerset, which

I had the great pleasure of visiting as a member of the Environment, Transport and Regional Affairs Committee.

I have certainly learned a great deal about DNA from the debate, but my hon. and learned Friend the Member for Redcar hit the nail on the head when she said that these are issues that the court system and trials have to grapple with all the time. The point is that many issues raised in the debate will be matters for a retrial should the Court of Appeal order one. In that sense, they do not raise additional issues concerning double jeopardy.

The test for the Court of Appeal—my hon. Friend the Member for Brighton, Kemptown was absolutely right to talk about the quality of evidence—is that it must be new. I accept the example that the hon. Member for Somerton and Frome gave of evidence that was there, but which could not be detected as the technology did not exist at the time.

DNA evidence is a good example of that. Bloodstains and other genetic samples may be available, but we would be unable to tell to whom the blood or genetic sample belonged until the appropriate technology was developed. The Court of Appeal will have to judge whether evidence is new and compelling, and that is defined in clause 65(3)(a) as ''reliable'' and in clause 65(3)(b) as ''substantial''. In layperson's terms, evidence must show a high probability that the person did it.

The hon. Member for Southwark, North and Bermondsey asked about the rules governing the use of DNA evidence. He got the answer from the hon. Member for Beaconsfield, who read out information on a case in the Court of Appeal.

Dominic Grieve (Conservative, Beaconsfield)

Yes, Doheny and Adams.

Hilary Benn (Labour, Leeds Central)

Indeed. That guidance is offered to courts when they are considering such evidence.

The hon. Member for Southwark, North and Bermondsey asked what the Government understand by ''scientific''. The honest answer is that I do not know. That is precisely why the Government have not offered the word ''scientific'' in the clause; it is also why the amendment is defective. I do not think that it is possible, and the debate has highlighted it, to define ''scientific'' as a category separate from other evidence. New, compelling evidence—scientific or other—that shows that someone has ''got away with it'' should be considered.

The hon. Gentleman, and the hon. Member for North Down in her intervention, answered the question as to what would be excluded. One thinks of certain circumstances—finding a murder weapon after many years, for example. It is also possible for a witness to come forward after many years to say, ''I was married to him at the time. He came back that night covered in blood and said to me, 'I've done her in'. I have kept my counsel for 20 years, but I have decided that I can no longer live with myself and have come forward.'' If such evidence were available, it would be wrong not to consider, first, whether it meets

the new and compelling test and, secondly, if the Court of Appeal is so satisfied, whether it should be included to be considered alongside all the other evidence in the retrial. That is why I do not accept the amendment.

The point about protection against sloppy investigating, which the hon. Member for Southwark, North and Bermondsey made, is covered by the due diligence test at clause 66(2)(c).

Finally, the hon. Member for Beaconsfield asked whether the Court of Appeal will be able to decide that new evidence A can go in, but not new evidence B. That is not a decision for the Court of Appeal. It must decide whether new and compelling evidence exists. All the evidence that the prosecution wishes to present at the subsequent retrial will be included at that retrial, and the court and the jury will consider it in the normal way.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is right in his analysis that, after the amendments were tabled, I became increasingly conscious of the fact that they present difficulties. Nevertheless, they are a legitimate area for discussion. They may highlight the fact that this is an all-or-nothing situation, and that one is either prepared to accept the principle of retrial that the Government seek or that one should stand up against that principle. I accept that the difficulties of compartmentalisation, with which the amendments deal, would be tricky to resolve.

The Minister's final comment, which confirmed what I already thought, gives rise to some anxieties. The public perception—indeed, perhaps the Committee's perception—of the principle of retrial is that the Court of Appeal has found something that justifies the case beginning again. That may be the justification, but thereafter the prosecution, within the ordinary rules, may seek to present other evidence. It would be the trial judge's decision as to whether that evidence should be excluded or admitted. On the basis of oral evidence and recollection, it would be extremely difficult for the trial judge to exclude it. Surely it is the case—I am widening the area under discussion slightly, but the Minister raised the point—that in ordinary circumstances a long delay in reviving oral evidence would be subject to an abuse of process application, which would prevent a trial from taking place. Such an application would be made to the trial judge.

However, it is not suggested that such an application can be made in these circumstances. Once the Court of Appeal has decided that the evidence presented is so compelling that a retrial should take place, I assume that that discretion, which would be the ordinary protection that might exist, would no longer be available. It would be difficult for a judge to exclude oral evidence. He would have to leave the matter to his directions and to comments from the defence on its reliability. That is an interesting area that the Minister may wish to consider. As so often in the Committee, one discussion triggers another.

I shall not press the amendment to a vote, as I wish to think about the issue further. I accept that the compartmentalisation of scientific evidence from other

evidence presents as many problems as it seeks to solve.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am grateful for the debate, which leaves on the record the fact that scientific evidence itself will not be conclusive. If it could be defined, it is evidence that must be taken into account with all the other evidence. If we have at least managed to help to educate those who have taken the view that DNA evidence is the answer to a huge number of unsolved crimes, our debate has been helpful. It is a useful reminder that we shall have to work to define those offences that could be retried. We had a debate on that the other day. Furthermore, we must define the criteria for that, and that work began in this morning's debate.

That is a useful conclusion. We have yet to deal with other matters that deal with double jeopardy. In the light of that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 264, in

clause 65, page 40, line 7, leave out from 'new' to end of line 8 and insert

'if its availability was not, and could not possibly have been known to an officer or prosecutor at or before the time of the acquittal.'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 331, in

clause 65, page 40, line 7, leave out 'or known'.

No. 340, in

clause 80, page 49, leave out line 27.

Dominic Grieve (Conservative, Beaconsfield)

Amendment No. 263 raises a small point that merits consideration, although it is partly answered by clause 66. Clause 65 states:

''The requirements of this section are met if there is new and compelling evidence that the acquitted person is guilty of the qualifying offence . . . Evidence is new if it was not available or known to an officer or prosecutor at or before the time of the acquittal.''

The amendment would change the wording to

''could not possibly have been known to an officer or prosecutor at or before the time of the acquittal.''

That would reinforce the original due diligence test that applied to the officer and the prosecutor. It would not allow incompetence to be remedied by subsequent proceedings if evidence could readily have been brought before the court.

I am mindful of the fact that the question to be determined under clause 66(2)(c) is

''whether it is likely that the new evidence would have been available sooner (either in the earlier proceedings against the acquitted person or subsequently) but for a failure by an officer or by a prosecutor to act with due diligence''.

However, that is only a factor to be taken into account, whereas amendment No. 264 would effectively place a bar on reopening proceedings if it could be shown that the officer could have known about the evidence. That is the basis for the amendment.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to make two points. First, I support the hon. Gentleman's amendment. For the reasons that have been set out, we would do well to tighten the definition, and that is the purpose of amendment No. 331. The clause is drafted in such a way that it would include evidence that was available but unknown to the officer or the prosecutor. It opens the door to incompetence and a lack of due diligence—I can see no other interpretation.

Secondly, the test must be whether the evidence was there, not whether someone found it or failed to go down the relevant route of inquiry. However we resolve the issue of double jeopardy, I would have considerable concerns if trials could be restarted just because the prosecutor, the Director of Public Prosecutions, the CPS or the police happened not to know of the evidence, even though it was available. The issue must be the availability of the evidence, not the knowledge of the individual officer or prosecutor.

Hilary Benn (Labour, Leeds Central)

In essence, the debate is about the phrase ''could not possibly'' versus the phrase ''was not actually available''. As the hon. Member for Beaconsfield said, amendment No. 264 would restrict new evidence to that which was not available and could not possibly have been known to the police or prosecutors at or before the time of acquittal. That would be too restrictive, because evidence may subsequently come to light that could have been unearthed before the original trial, although, for whatever reason, it was not. For example, as we discussed, a witness may come forward who had not done so previously. Under the amendment, one could argue that such evidence should be excluded from consideration if it could ''possibly'' have been known to the police. I do not agree, however, and such evidence should be available to the court. As the hon. Gentleman said, the combination of clause 65 and the additional safeguards in clause 66—they are important, for the reasons given by the hon. Member for Southwark, North and Bermondsey—means that the court would have to take account of due diligence by the police and the prosecution in the investigation.

Similarly, I am not persuaded by amendment No. 331. The police might well be aware of a piece of evidence without being able to obtain it. A witness might, seemingly, have disappeared, or the police might have been unable to produce him. If the witness were to come forward subsequently, offering compelling new evidence, the DPP should be able to offer that as new evidence in the application for a retrial. In that instance the same protection would apply, provided for by clause 66(3)(c).

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the argument, but there would be all the difference in the world between the fact that an officer knew that there might be evidence but was unable to track it down or persuade someone to talk, and the fact that evidence existed but the officer or prosecutor never inquired about it. I should be grateful if the Minister could study the wording. I understand that clause 66 contains due diligence protection, but it still seems to me that we need to ensure that we shall not be making use of evidence that was thought to be out there, but simply was not in the hands of the prosecuting authorities.

That would open wide the range and number of cases that could be dealt with under the Bill.

Sylvia Hermon (UUP, North Down)

The hon. Gentleman makes a vital point, because only the Court of Appeal will be able to make a determination under clause 66 and apply the due diligence test. Rulings by the DPP would be under clause 65 alone. A due diligence test should be included in that clause too.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Lady has made a point for me that I hope the Minister will attend to.

May I add something that has a direct link to that? We need a threshold that works in relation to the principle as well as rules that guide the Court of Appeal. We should be clear about that. Those are not to be confused. I understand that that is why the original drafting separated them. It is not a question of difference in principle, but the hon. Lady has made the point that real clarity is needed about what rules would allow new evidence to count and what thresholds, or other considerations of justice, would allow the court to decide that the case could pass beyond it and be reconsidered. There are two proper considerations and the public and Parliament would be well served if we kept those separate.

The Minister may want to respond now or to reflect and respond when we reach the end of our deliberations on the clause.

Dominic Grieve (Conservative, Beaconsfield)

I fully accept the Minister's comment that the amendment might impose an excessive restriction. However, an issue that I do not find easy arises in this context. Perhaps the hon. Member for Southwark, North and Bermondsey has a better approach to the matter. Clearly a trigger is necessary, and that is provided for in clause 65.

Without that, it would not be possible even to start the process. There is a slightly curious aspect of this matter. I rather tend to the view of the hon. Member for Southwark, North and Bermondsey that the provision stating that

''evidence is new if it was not available'',

is straightforward, and clause 66 enables the reasons for the lack of availability to be examined. However, the insertion of the words ''or known'' in clause 65(2) seems to open an enormous gateway. Although the provision is qualified in clause 66, it appears, to an extent at least, to override it—to allow for an officer to say, ''I did not know, so I am entitled to make the application; the court can decide whether my reasons for not knowing are good enough to allow the retrial.'' I think that there may be an argument for removing the words ''or known'' as amendment No. 331 would do. Doubtless the Minister can go and reflect on the matter, as I hope he will. If he has not reflected on it by Report, we may tackle it again.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 308, in

clause 65, page 40, line 17, leave out subsection (5).

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to take amendment No. 379, in

clause 65, page 40, line 18, after 'have', insert 'not'.

Dominic Grieve (Conservative, Beaconsfield)

When I first read subsection (5) I did not find it easy to understand.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 65 - New and compelling evidence

James Cran (Conservative, Beverley and Holderness)

I remind the Committee that with this we are discussing amendment No. 379, in

clause 65, page 40, line 18, after 'have', insert 'not'.

Dominic Grieve (Conservative, Beaconsfield)

Having a meeting with constituents in the Lobby and getting to Committee on time nearly caused me problems, but I return to the matter of omitting subsection (5). The Minister will recall that I explained that I am in doubt as to its meaning, so it would be helpful if he explained what it is. My concern is that it would be possible, if I have understood correctly, for evidence to be admitted at a second trial that would not have been admissible at the first. For example, as a result of subsection (5), would evidence of bad character, whose admissibility we shall facilitate in a later part of the Bill, be admissible at a retrial even though it was not admissible at the first?

I remind the Minister of my previously expressed concern about the legitimate opportunities open to the defence to make choices based on the existing rules of evidence—for example, circumstances in which a defendant may have exercised the right to silence. That right has since been abrogated in its absolute sense, because it is possible to draw inferences from silence that it might not have been possible to draw when the offence was alleged to have been committed. The Committee should be aware that we might end up addressing problems of unfairness because the rules under which a retrial will take place differ from those for the original trial and investigation.

That is a discrete point, and I do not want to spend any more time on it as I should like to hear from the Minister why subsection (5) exists if not for that purpose, what its purpose is and whether we need it.

Hilary Benn (Labour, Leeds Central)

One could conceive of circumstances arising from the time when DNA evidence was in its early stages and regarded as inadmissible because it was not a sufficiently tried and tested method of science for determining identity. There would not be many such circumstances, but subsection (5) would apply to that one.

Sylvia Hermon (UUP, North Down)

Will the Minister address the point that a person is entitled to a trial within a reasonable time? He said that when DNA was discovered almost 18 years ago, it may have been a little unreliable. Is he suggesting that that sort of evidence could now be used in retrials? Would such trials take place within a reasonable time under the European convention?

Hilary Benn (Labour, Leeds Central)

That evidence might be used, subject to the tests that we have discussed in relation to clauses 65 and 66. Science has moved on since DNA samples were first taken. Then, quite a blob of material was needed—I put it in a non-scientific way—to establish the required information, and that can now be done from a much smaller blob or piece of material. That does not stand in the way of the general thrust of the clause, although I recognise the hon. Lady's concern and opposition to the provisions, and nor do I think that it stands in the way of a fair trial. Clause 66(2) refers to the possibility of a fair trial and clause 66(2)(b) to the length of time involved. The Court of Appeal will have to weigh those things in the balance when it decides whether a retrial can be considered.

Admissibility is not an issue, because the court will have to decide whether any new evidence is compelling and indicative of guilt. It will not be concerned with whether the new evidence would have been admissible if it had been available at the original trial. That would have been a matter for the trial judge at the time, dealt with in the context of the trial as a whole. Here, however, the court will have to be concerned with the value of new evidence in the context of a potential retrial.

Dominic Grieve (Conservative, Beaconsfield)

I understand the Minister's point. Indeed, as I look at the scope of the clause and the fact that it relates specifically to the Court of Appeal's consideration, I can see the force of his argument. However, there would still be a problem if someone could say about a retrial, ''As well as the DNA evidence, we are in a position to put before the court the previous character of the defendant.'' Until now, that could not happen. Are we likely to see that happening in applications to the Court of Appeal? If so, the Committee should be aware of it.

Hilary Benn (Labour, Leeds Central)

Indeed, that could be a consideration, which would depend on the facts of the case and the nature of the evidence. The hon. Gentleman anticipates later clauses on bad character. However, in so far as it has clarified the matter, the amendment has been helpful.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I wondered whether the Minister would introduce any argument or research to support his proposition. I skimmed through various papers to see whether anyone had addressed it specifically. The Home Affairs Committee did not appear to do so, and nor did the White Paper. The Law Commission report No. 267, ''Double Jeopardy and Prosecution Appeals'', which predated that consideration, addresses the question indirectly. Recommendation 3 at paragraph 4.69 states:

''We recommend that

(1) the new exception should be available only where the court is satisfied that the new evidence

(a) appears to be reliable; and

(b) when viewed in context, appears at that stage to be compelling;

(2) the context in which the court views the new evidence for this purpose should comprise the issues that arose at trial, whether or not a matter of dispute between the prosecution and the defence''.

By implication, that means that the Law Commission did not envisage inclusion of matters that did not arise at trial, and issues that were excluded by virtue of the evidence would clearly not have arisen at the trial.

I share that concern, so I want to ask a neutral question about whether any work has been done to analyse what the provision will mean in practice. I have not seen any, and if no analysis has been made, the situation is more dangerous than it would be if the Government could confirm that the university of London or the institute of criminology at the university of Cambridge had considered the issue. I am not aware that the Government have ever put forward before the argument that we have heard today, and I have never seen any assessment of its implications or any expert advice on it.

We should resist taking such a dangerous and controversial course without knowing its implications. Does the Minister have any such information? If not, will he make inquiries to find out whether any research has been done and put any such information in the public domain, as the point seems to raise issues that have not previously been considered?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman may have hoped that the Minister would respond, but he has not sought to do so.

It is logically arguable that when the Court of Appeal considers whether evidence is reliable and substantial, it should do so on the basis of current tests of admissibility. As I listened to the Minister, I appreciated that the subsection was included to cover evidence, such as DNA evidence, that might not have been admissible 25 years ago because people did not know about it, but which should be admissible now that they do.

I had tabled another amendment to add the word ''not'' after the word ''would'' in order to clarify what is otherwise a slightly opaque phrase. The Minister laughed during a previous sitting when I talked about ''calling a spade a spade.'' For the purposes of subsection (5), it is actually irrelevant whether any evidence would not have been admissible—rather than would have been admissible—in earlier proceedings to which the appeal relates. That is obvious when one reads the whole clause.

My concern is that the provision could be applied not only to forensic scientific evidence but to a wider range of evidence under the new rules of admissibility. That would not be new evidence. It would be old evidence that could not be admitted in the past but could be now under new rules, such as the rules relating to bad character. The bad character of a defendant would have been known at the time of the original trial, just as it would be known when decisions about a retrial were being made. Whereas, in the past, it would have been regarded as an irrelevancy except if he were convicted, it might now be regarded as highly relevant and capable, with other factors, of being probative because inferences could be drawn from it.

That issue interests me in two ways. First, I am interested in whether the Court of Appeal could be

invited to take that evidence into account in deciding whether a retrial should take place. Secondly, I am interested in whether the evidence could be admitted at the retrial under the ordinary rules of court that operate at the time, which would be the rules of court of 2003, not the rules of court that applied when the offence was committed—in, for example, the 1970s. The Committee is entitled to clarification so that we may understand the impact of the subsection. I leave to one side for the moment whether it is right or wrong. I just want to know where we stand.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman is right. Any retrial would clearly have to take place under the current rules of evidence and procedure. There could not be a retrial in aspic under the rules that applied at the time of the original trial. In asking the Court of Appeal to consider its functions under the clause, it cannot be right to ask it to second-guess what the ruling might have been on the earlier occasion.

Dominic Grieve (Conservative, Beaconsfield)

That must be right. Of course, when it comes to the question of an inference to be drawn from silence at an interview, if the original interview under caution took place in 1975, I assume, applying the ordinary rules, that—although the law may since have changed so that an inference can be drawn—no inference could be drawn because the key issue would be what was said at the time that the caution was administered, and what that caution was. That highlights for me the practical difficulties that might arise, particularly in the case of retrials relating to investigations and first trials that took place a considerable time ago.

The Minister did not quite answer my second question, which went back to the specific Court of Appeal proceedings. For instance, a prosecution might seek to adduce reliable and substantial evidence by which it could be considered highly probable that a person was guilty of an offence. That evidence might comprise not only the fact that DNA can now be provided but the fact that it will now be possible to cite, in the course of the trial, the defendant's previous bad character and the fact that he had committed similar offences in the past, none of which would have been possible at the time of the first trial. Would it be legitimate to say to the Court of Appeal that it should take all that into account in deciding whether a retrial should take place? I think that the Court of Appeal will be in a position to do that. If I am wrong, it would be helpful to know that now.

Hilary Benn (Labour, Leeds Central)

I am happy to confirm that the circumstances that the hon. Gentleman describes could apply.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. That was the purpose of the amendment. I do not intend, at this stage, to take the matter any further because, while I fully understand the logic of having the clause to protect the new DNA evidence—otherwise the system would founder and be useless—this other aspect raises interesting questions. I have not seen anything to suggest that the professional bodies, never mind the public, have fully taken it into account. We may wish to revisit the matter on Report, or the Minister might

consider it further and provide clarification in writing—or otherwise—as to how he would expect the system to work. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 6.

Clause 66 - Interests of justice

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 266, in

clause 66, page 40, line 29, leave out paragraph (a) and insert—

'(a) whether a fair trial pursuant to the order would occur;'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 332, in

clause 66, page 40, line 29, leave out 'it is likely that'.

Dominic Grieve (Conservative, Beaconsfield)

The clause deals with the interests of justice test. Subsection (2) says:

''That question is to be determined having regard in particular to—

(a) whether it is likely that a fair trial pursuant to the order would be possible''.

The amendment would do two things. First, it would beef up the test and make it quite clear that no retrial should take place unless the court was satisfied that a fair trial would occur. Secondly, it provides the Committee an opportunity to consider subsection (2) and the test it contains. In that context amendment No. 309, which relates to subsection (2)(c), says:

''whether it is likely that the new evidence would have been available sooner''.

My preference is for whether the new evidence could have been available sooner. The distinction may seem narrow, but ''could'' implies the art of the possible, whereas ''would'' applies, it seems, a slightly different test. In the context in question, the stronger burden is placed on the prosecution by the word ''could''.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to speak to amendment No. 332. It is also an attempt to make clear what we are talking about in this important clause, which will define the test to be used by the Court of Appeal. It is proposed that there be four considerations.

Amendment No. 332 is about the first of those. I am sympathetic to amendment No. 266. Amendment No. 332 would delete ''it is likely that'' from subsection (2)(a), so that the simple test should be whether a fair trial would be possible. Including ''it is likely that'' seems to give subsection (2)(a) a different meaning. If the meaning were not thereby different, including ''it is likely that'' would be tautologous, as it would be repetitious. No significantly different test is added.

Life is likely to be made more difficult for the Court of Appeal, as another question will be added that it has to consider answering. If the first condition is meant to be the ballpark condition of fairness and there are subsequent conditions to be added that are sufficiently important, it would be better to amend subsection (2)(a), as we suggest. It is none the less important to add something along the lines of amendment No. 314.

All Opposition members of the Committee have regularly raised the issue of media reporting. Whatever else we do not make explicit, we must be explicit on that. I would be grateful if the Minister would consider alternative formulations of words for subsection (2)(a); that is why the amendment is on the amendment paper.

Hilary Benn (Labour, Leeds Central)

We now come to the safeguards provided by clause 66 to ensure that an order of the Court of Appeal for a retrial is in the interests of justice. That is clearly set out in subsection (1). Clause 66 also includes a requirement that courts should consider whether a fair trial pursuant to an order for retrial would be possible. That would require the court to consider adverse publicity and its effect on a potential jury.

Amendment No. 266 would widen consideration to whether a fair trial would actually occur, and that is unnecessary and wrong. Part 10 seeks to strike a balance of fairness on whether a prosecution case should proceed to a reopened trial, and we are confident that this would be the case subject to the safeguards and the test set out in the Bill. However, the fairness of the trial itself is the responsibility of the court and the trial judge. If a trial can be fair, and that is the test that the Court of Appeal is being asked to consider in subsection (2), it is for the trial court to ensure that it is fair. That is not merely a semantic point.

Dominic Grieve (Conservative, Beaconsfield)

There is a difficulty here. We must live in the real world. Trial judges have great powers; for example, they have the power to stop a trial completely if they think that it is unfair. In reality, they will be under pressure if the Court of Appeal has already pronounced, first, that it is in the public interest that there should be a retrial and has pronounced, secondly, on whether a retrial will be fair. However, there are some matters that the Court of Appeal will not be able to consider and which will remain the province of the Crown court judge.

Hilary Benn (Labour, Leeds Central)

I agree. Although the Court of Appeal will have considered the requirements placed on it by clause 66, that does not take away from the fact that the trial judge will have ultimate responsibility for

deciding whether a fair trial can take place. Nothing takes away from the trial judge his or her power to decide that a fair trial is not possible; nothing takes away from their power, to which the hon. Gentleman referred, to stop a trial.

Ultimately, we must trust trial judges to undertake their duties and responsibilities. For that reason, it is not helpful to put the Court of Appeal in the position that the trial judge may find himself or herself in at that point. It is sensible, having regard for all the arguments, that the test that we should ask the Court of Appeal to apply is whether it is likely that a fair trial, pursuant to the order, would be possible.

Dominic Grieve (Conservative, Beaconsfield)

If I have achieved nothing else, at least I have ensured an entry in Hansard that can be waved around by defence counsel at future retrials to persuade the Crown court judge that the case should not proceed or that he should intervene. I am grateful to the Minister for that and for having it on the record.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I hope that before the hon. Gentleman presses or seeks to withdraw his amendment, the Minister will tell us his understanding of what exactly ''it is likely'' means.

Dominic Grieve (Conservative, Beaconsfield)

I shall willingly give way to the Minister if he wishes me to do so. With your leave, Mr. Cran, if he wishes to speak further or reply, I shall sit down and ask for leave to say a couple of words after. However, I see no sign that the Minister wishes to avail himself of that opportunity.

Hilary Benn (Labour, Leeds Central)

For the sake of clarity, I hope that I did address that point in the remarks that I have just made.

Dominic Grieve (Conservative, Beaconsfield)

The Minister certainly touched on the point, although he may not have satisfied the hon. Member for Southwark, North and Bermondsey (Simon Hughes).

David Heath (Liberal Democrat, Somerton and Frome)

The Minister has not satisfied me either. He adjusted his ground while he was speaking. He started off by saying that it would be a matter for the Court of Appeal to decide whether a fair trial was possible, only to end up saying that it would be a matter for it to decide whether it ''was likely'' that a fair trail was possible. He has skirted around the compound element of a probability linked to a possibility, which is the point that my hon. Friend made when he spoke to amendment No. 332.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point, and that is the issue that we were trying to beef up. I prefer my wording, so I shall push the amendment to a vote. The Bill would be improved by its inclusion, and it would not be damaged in any way, even from the Minister's intention, by changing it.

Question put, That the amendment be made:–

The Committee divided: Ayes 6, Noes 12.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 309, in

clause 66, page 40, line 33, leave out 'would' and insert 'could'.

I apologise, Mr. Cran, for referring to amendment No. 309 on the previous group of amendments. I erroneously believed that it had been grouped with them. To recap, I wish to replace ''would'' with ''could'', because I believe ''could'' to be better.

Hilary Benn (Labour, Leeds Central)

I do not think that to change the wording from ''would'' to ''could'' would help, because subsection(2)(c) asks the court to consider how likely it is that there has been a failure of due diligence and whether, if there was one, it would have made the evidence available sooner. My problem with ''could'' is that it takes us more in the direction of speculation, and I am not sure that that helps the Court of Appeal to undertake its functions. The court must look at the likely impact of any failure of due diligence, and that is what the Bill provides for. For those reasons, I prefer the formulation ''would''.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to make the same plea. The difference is narrow, but I marginally prefer the amendment to the original. I know that we went through a great deal of pre-publication consultation, but it would be helpful if the Minister could tell us whether anyone made submissions or commented on these matters. In the interests of open government, I hope that if any information has come the Government's way that we have not been given, he will ensure that we receive it, or that it is placed in the Library. I appreciate that hon. Members sometimes turn their minds to the issues only when they see the amendments and ask themselves the questions prompted by them. I have not thought through all the consequences, but we prefer the amended to the original version.

Dominic Grieve (Conservative, Beaconsfield)

I hate to disappoint the hon. Gentleman, but I have a horrible feeling that this may not have been the sort of textual examination of clauses that was anticipated. My textual examination often takes place late at night and I substitute my own personal preferences for those of the Minister and his team. Having flagged up the matter, I am happy to leave it to their Lordships' House to determine whether the text should be altered. I am concerned to make the test as strong as possible, which is a real point rather than an exercise in semantics. Having said that, the difference between the two provisions is not sufficient to warrant dividing the Committee, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 314, in

clause 66, page 40, line 39, at end insert—

'(e) the potential impact of any publicity concerning the original proceedings'.

This is a rather more fundamental amendment. Should we spell out explicitly the concerns of Parliament—already expressed on all sides—about the potential impact of publicity on the ability to have a fair retrial? One would expect the clause to deal with that as part of the general submissions that the Court of Appeal has to examine. It is a crucial issue because a major problem with re-litigation of a criminal case is that much publicity will already have been generated. It is particularly problematic when the retrial is taking place not 20 or 25 years later, but only six or eight months after the event.

New evidence might well come to light in a serious case when an acquittal was followed by a huge amount of press comment about the original proceedings. The prosecution might have said that the evidence was so reliable and substantial as to make it highly probable that the person was guilty—or whatever it reads after the Minister has redrafted clause 65—and the public will have been very much alive to the case and to the publicity surrounding it. I am not asking for a prohibition on a retrial, but it should be built into the Bill that the new evidence is serious enough to merit independent consideration by the Court of Appeal.

Stephen Hesford (Labour, Wirral West)

Is not the problem with the amendment that it narrows the potential discretion of the Court of Appeal? What would happen if the adverse publicity related not to the original proceedings but to the new evidence? It would not be caught by the provision and it could prevent the Court of Appeal from taking the new evidence into account.

Dominic Grieve (Conservative, Beaconsfield)

I take the hon. Gentleman's point, but I am not persuaded. Subsection (2)(a) already provides for a wide range of considerations to be taken into account, as it prescribes having regard to

''whether it is likely that a fair trial pursuant to the order would be possible''.

Publicity surrounding something other than the previous trial would be caught by that provision.

I acknowledged at the outset that the amendment is, to some extent, an additional element to subsection (2)(a). It has legitimately been argued that it is covered by that provision, but I contend that the issue is so important that Parliament should have the right to identify it separately, which is frequently done in legislation. When we considered the Proceeds of Crime Bill, we highlighted concerns on a number of occasions and included them in a list that otherwise would not have dealt with them. I see no problem or downside. The court would simply have to give separate consideration and state it openly when the time came to make its decision. From that point of view, the measure would be an extra protection.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is an extremely serious matter. We as a Committee in Parliament, and all those interested in justice, should be troubled by the current state of affairs. The hon. Member for Beaconsfield

(Mr. Grieve) was right to say that the issue had recurred periodically in our deliberations on double jeopardy. There are several matters that the Government have not yet addressed, although I appreciate that we shall come later to clauses that deal with restrictions on reporting and to a particular clause that creates offences in connection with reporting and that establishes provision for fining journalists, editors, newspapers and so on.

The comments that I have heard came from the Attorney-General, rather than the Solicitor-General, but the Law Officers have made it clear that they keep these matters under close scrutiny. I may be wrong, but I think that the current Attorney-General has taken action on two occasions—certainly one occasion was well publicised—to warn the press, to the extent of legal proceedings, when he believed that they were behaving improperly in anticipating potential trials or verdicts, including findings of guilt.

In that context, it would be helpful if one or other Minister could confirm for the record, either now or later, on how many occasions in this Parliament and the previous Parliament—because there was also a Labour Administration then—the Attorney-General has taken legal action against any publisher in relation to any proceedings and the reporting of them. That relates not to retrials, but to first trials, or a trial in a first series of trials. On how many other occasions have the Attorney-General or Solicitor-General given general or specific warnings to the press?

One reason why I am concerned is that, in a society with a free press, it is very difficult to undo the damage that is done, even if there can be legal proceedings after the event. The reality is that, once a paper has printed a front page with pictures of people who it says are guilty, or once a trial has been reported and is hugely in the public domain, it is too late to eliminate that from people's minds.

Again, I remember from the Lawrence case that one national newspaper printed on the front page pictures of what it called the guilty men. I do not believe that it is possible after the event to punish a very large organisation—in that case, a national newspaper that is owned by a much larger company with significant assets—so effectively that it undoes the potential injustice of what has been done. Even if a significant fine was imposed or the editor was taken to court, found guilty of contempt and sent to prison, that would not undo what had been done, because it would be after the event. In this respect, the law is at risk of not being able to compensate for the adverse effects of such publicity.

Sylvia Hermon (UUP, North Down)

Let me add to the hon. Gentleman's point a reference to an interview that Sir William Macpherson gave to The Spectator, which was reported in The Guardian on Thursday 1 August 2002. Sir William was the former High Court judge who conducted the official inquiry into the murder of Stephen Lawrence. I was particularly struck by the report of that interview. Although Sir William supported the change to the double jeopardy rule, he is reported as having said that if new and compelling evidence came to light in the Lawrence case, the Court of Appeal would have to consider whether it was

possible for the suspects to get a fair trial a second time around after the Daily Mail had printed their pictures and branded them murderers.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Lady rightly adds a very clear reminder from the person who was closest to the issue subsequent to the inquiry and who put that question in the public domain.

There is a danger here of two-tier justice. Famous trials will get publicity in a way that makes it much less likely that there will be a fair retrial, whereas the less famous trials may not receive so much publicity and a fair retrial might be more possible. That is wrong. If Mr. Grobbelaar, Mr. Bowyer or Mr. Woodgate, or anybody else—Mr. Beckham, for the sake of argument—were to appear in court, that case, like other footballers' cases, would be all over the papers. Famous people are entitled to the same rights—but no lesser or greater rights—as somebody of whom no more than a handful of people have ever heard. I worry that it will not be possible to achieve that equity of treatment. Some cases attract wall-to-wall coverage in the media and others do not. I should be grateful if the Minister would address that concern.

The Law Commission recommended two types of case to be subject to double jeopardy exemption: murder and genocide. There is now a list of 29 or 30 qualifying offences, two of which, robbery and wounding, are, by any definition, lesser offences. The Minister told us the other day that out of some 3,000 cases of wounding last year, there were 2,000-odd convictions. That leaves more than 1,000 acquittals—more than 1,000 cases per year in just one of the types of case that would be able to come back to court. Those cases, which are run of the mill in every Crown court, would be unlikely to be prevented from being retried because they would not have been widely reported: there is less press interest in them—unless they involve somebody famous—than there is in serious cases.

I am also concerned about the location of trials. I assume that it is always within the power of the administration of the court system to determine where a retrial is to be, so a case that, for the sake of argument, has been famous in the north-east, could be retried in the south-west in order to ensure that there is a better chance that the jurors were not aware of what had happened before. That again involves a different type of treatment in certain cases, whereas the criminal justice system is supposed to provide parity of treatment for everybody.

Originally, people were tried by their peers and all the people on juries knew the defendant. Now, the jurors are not meant to know the defendant, so there has been a slight change. If a case that had originally been tried in Newcastle Crown court were to be tried in Bristol or Exeter Crown court, the jurors would automatically wonder why they were dealing with it. Thus, in practice, relocation would be only a partial remedy and would not prevent jurors from asking

themselves why they were trying the case, and possibly concluding that it was a retrial.

How do we prevent a jury dealing with a serious case from working out that the case has been around the circuit before? Whatever we do to the final wording of clauses 65 and 66, if Parliament agrees that the Court of Appeal can determine on application whether in some circumstances there should be an exemption from double jeopardy and the case can be reopened, does the Minister accept that we could not protect the second jury from knowing that fact? The jury may happen to know in some cases, but it is arbitrary: some will know, some will not. That will give rise to prejudice, however well the jury is directed at the beginning of the second trial. The judge can say until he is blue in the face that the jury must presume that the defendant is innocent until proven guilty, but a jury that knows from all the publicity surrounding the case that it is being retried because of new evidence will bear that in mind, even when making finely tuned judgments and balancing the evidence.

Vera Baird (Labour, Redcar)

I am following the hon. Gentleman's arguments with great interest. If clause 65 is redrafted, will such a defendant in a retrial be in a worse position than a defendant who has already been convicted but for whom the Court of Appeal has ordered a retrial, assuming that publicity surrounded the case when it was tried for the first time?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I do not know. I will think about that. It would be interesting to know the statistics for the number of verdicts that the Court of Appeal quashes and the number of retrials that it orders. I suppose that the numbers are very small. I have not read any academic research, although I imagine that papers have been written on the subject. It is the sort of issue that law reviews would have examined. The difference may lie in the likely mindset of jurors who know that a conviction was quashed, which may give rise to the presumption that something was wrong in the previous trial. The quashing of an acquittal may give rise to the presumption of guilt.

Vera Baird (Labour, Redcar)

I suspect that the public sometimes think that convictions are quashed on technicalities and that judges intervene in trials where jurors, like them, passed a verdict of not guilty. There is therefore an opposing argument.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is true. Sometimes when trials are discontinued and the judge orders a verdict of not guilty, the jurors go away bemused because they were sure that the defendant was guilty and because it was clear that only a technical, legal argument prevented the defendant from being found so.

Have the Government consulted other Departments or the Law Officers? I include consideration that the Department for Culture, Media and Sport might have given to the issue, as it clearly has an interest. Has there been any deliberation with colleagues in Scotland that might seek to address the media frenzy that now surrounds cases that are seen by the courts as being causes célèbres.

There were famous trials a hundred years ago. Indeed, Edgar Lustgarten made a living retelling trials that were extremely famous in their day. The

difference between then and now is that there was no wall-to-wall coverage. There was no television, and earlier on there was no radio. There were fewer papers and fewer readers. Although there were famous trials in the general sense, there was nothing like the current dissemination of information. I hope that the Government have thought about whether further steps can or need to be taken to ensure that if we go down this road there is even the beginning of a chance of a fair trial for many of the people who come to be retried. This is probably the most serious consideration in getting a fair trial other than the issues relating to previous convictions, which we will come to later. I hope that we can find our way to the best solution, whatever position we start from.

Harriet Harman (Labour, Camberwell and Peckham)

My hon. Friend the Minister will respond to the hon. Gentleman's amendments, but perhaps I could tell him now that the legal secretariat to the Law Officers is collating information about contempt cases that the Attorney-General has issued and warnings that he has given. Perhaps I can write to the hon. Gentleman and send copies to members of the Committee. I do not know how far back we will go. Although we can go back beyond 1997, because the Law Officers' Department is the one Department where the shutters do not come down with a change of Government, it may be difficult to retrieve the information. We will go back as far as we can, and I will let him have the information as soon as possible.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is extremely helpful. I am grateful. Perhaps the Solicitor-General might be able later to add to the Minister's comments and tell us whether work has been done or is planned to consider whether the current remedy is sufficient. Are there any discussions either across Departments or between England and Wales and Scotland about that? It is no good having a remedy that is only for England and Wales if publication happens in Scotland or Northern Ireland.

This is one of those issues that are affected by global communication. That was highlighted by Sunday's little episode and the question whether the papers in Britain could publish stories about German politicians because of the limited controls that can be exercised from one country over the press in another. There are none the less real issues here. I hope that the Committee will accept that this is a matter of serious concern. I also hope that the Minister can help us by answering some of the questions and offer some suggestions on how we can collectively reduce the media abuse. Increasingly often that abuse prevents fair trials first time round and it might increasingly often mar the second-time-round trials envisaged here. Indeed, it might make them entirely impossible unless we get this right.

Hilary Benn (Labour, Leeds Central)

This has been a useful discussion. We have touched on some of the issues that we will come to later. It might be helpful if I point out to hon. Members that responses to the criminal justice White Paper relating to access to information are to be found both on the Home Office website and in the Library. I am sure that the website will now receive many more hits.

On amendment No. 314, in large measure, the hon. Member for Beaconsfield answered his own question, because as he recognised, subsection (2)(a) already provides for a wide range of circumstances, including those that are identified in the amendment, to be taken into account by the Court of Appeal in deciding whether a fair trial is likely to be possible. In that sense, the amendment is unnecessary, but if it is of assistance, I am happy to confirm on record that the considerations in subsections (1) and (2)(a)—the interests of justice and the possibility of a fair trial—would include the impact of any publicity on the likelihood of a fair trial. That is what is intended, whether that publicity relates to the original proceedings, which the amendment is restricted to, or any other matter.

The hon. Member for Southwark, North and Bermondsey raised several points. We will come on to clauses 69 and 70, which are standard provisions, as their wording replicates existing legislation on reporting restrictions. I understood his point about two-tier justice, but my right hon. and learned Friend the Solicitor-General answered that in noting rightly that the problem is no different from that which may occur when a retrial is ordered.

The hon. Gentleman asked about jurors in a retrial who recollect that the case has been subject to trial before. It may not happen in all circumstances, and it is not a relevant consideration that would be automatically drawn to their attention, but even if they happen to know, they will be directed to reach a verdict only on the evidence that is put before them.

The hon. Gentleman crystallised the broader point in his final question about consideration by Ministers, and he drew attention to an important issue from which we should not run away. The issue is not unique to the provisions on double jeopardy.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I was not advancing that argument.

Hilary Benn (Labour, Leeds Central)

Indeed, not. The point that I was going to make is that we cannot resolve the problem in relation to the double jeopardy provisions. The current protections—we will come to the detail later—and the consideration that both the Court of Appeal and trial judge have to give to the prospect of a fair trial after any prejudicial coverage remains the same as for any other trial. The Bill does not include any proposals to deal with the broader issue, but the hon. Gentleman put his finger on an important point in this age of 24-hour communication and news coverage. As we have seen with recent cases, to which as a society we will need to return, those developments change the context in which court proceedings take place and create a new challenge to which we have to respond.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Do the Government have anything in mind to deal with the fact that whether a jury may know that they are involved in a retrial could depend on different jurors' recollections? Given that the judge may never know that someone in the jury room has said that the case has been to trial before, have the Government contemplated whether it would be better to take the bull by the horns and allow the judge to confront the issue at the beginning of the trial? He

could say that some jurors may know that the matter has been to court before, but that it should not affect their starting presumptions. I ask the question because I assume that it must have come up in deliberations between Ministers and advisers. Has thought been give to that, and what were the conclusions, either provisional or final?

Hilary Benn (Labour, Leeds Central)

I undertake to reflect on that point. There are arguments either way, but since we shall be writing to hon. Members with the information that my right hon. and learned Friend the Solicitor-General indicated that she would find, I will also respond to the hon. Gentleman's point.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his response, but I intend to press the matter to a vote, if only to draw attention to our concern about clause 66, which I believe to be of fundamental importance. It might also provide some encouragement to the Government to consider the matter carefully and to provide us with further reassurance on Report.

Question put, That the amendment be made:–

The Committee divided: Ayes 8, Noes 13.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have two questions and one observation. My first question relates to the provision on time, which we have not debated. Does the Minister take the view that the longer the period since the original trial, the more unlikely a fair trial will be? If not, what is the implication of the time provision?

My second question concerns the due expedition provision. Is it in the Government's mind that failure to exercise due expedition could be a complete barrier to a trial, or merely a consideration to be taken into account? Will the balance of justice ever be served by someone being tried when the sole reason for the matter not coming to court earlier was an avoidable delay caused by the authorities? Obviously, that relates to the ''protection'' clause.

My hon. Friend the Member for Somerton and Frome (Mr. Heath) and I voted for the last amendment, but there are further protections that we would like to see in the Bill, including one similar to that in that amendment. It seems to us, however, that it is better to retain a protection clause to build on

than to take that clause out, even if we do not believe that it goes far enough. Therefore, if the matter is pressed to a vote, we shall not vote against.

Hilary Benn (Labour, Leeds Central)

Clearly, the Government think that length of time is a consideration that should be taken into account in applying those tests, or it would not be in the Bill at subsection (2)(b). There may be a consideration in relation to the quality of the recollection of witnesses. That point was referred to in an earlier debate by the hon. Member for Beaconsfield. However, length of time itself may not be a bar, and the classic example of that is DNA evidence.

Sylvia Hermon (UUP, North Down)

One of the best things that a Labour Government ever did was to make the European convention on human rights part of domestic law. Article 6, which is on the right to a fair trial, states that

''everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal''.

I am not making that up—it is there in black and white. Will the Minister please think about including the phrase ''reasonable time'' in the clause, instead of saying that we can look at evidence from 18 or 20 years ago, which is not a reasonable time?

Hilary Benn (Labour, Leeds Central)

I hear the hon. Lady's point. All the legislation that the House considers is subject to the tests of the European convention, and we live with that. I agree that making the convention part of domestic law was one of the best things that we have done, and I am sure that she and I agree on the reasons why.

Dominic Grieve (Conservative, Beaconsfield)

The imprimatur of human rights compliance is no more than a rubber stamp on the front of legislation. However, it might help the Minister to know that the thrust of article 6 relates to the period between charge and trial, not the period before someone is brought to justice, although the clear implication is that the longer the period before someone is prosecuted, the more difficult holding a fair trial will become.

Hilary Benn (Labour, Leeds Central)

That is extremely helpful. The other examples that come to mind are war crimes and cases of genocide. Would it be right for the length of time since such an offence was alleged to have been committed to act as a bar? In so far as I understand what was in the minds of those who drafted article 6, I cannot believe that that was their intention. The hon. Gentleman is right. However, he is wrong to say that ECHR compliance is a rubber stamp. It genuinely reflects the view that the Government take during the consideration of all legislation. Judgments can be tested, and people can take their cases to the courts and pray in aid the convention. That is right and proper, which is why the Government incorporated the convention into UK law.

The reference to due expedition is highlighted as a consideration that the Court of Appeal should take into account when considering whether the interests of justice test is met. In the end, it is for the court to judge whether the due expedition clause should weigh heavily in determining whether the interests of justice would prevent it from making an order. That will depend on the facts of the case.

Question put and agreed to.

Clause 66 ordered to stand part of the Bill.

Clause 67 - Procedure and evidence

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 341, in

clause 67, page 41, line 11, after 'present,' insert

'and public funding must be available to allow for the defendant to be represented'.

The amendment makes a straightforward point. When the important application to reopen a case is made to the Court of Appeal—that would be new territory at the beginning, and would arise only in rare circumstances after that—the presumption would be that the person who had been acquitted was entitled be present, to be represented and to be publicly funded, if necessary. A later amendment will clarify that entitlement.

I hope that the Minister advises the Committee to accept the amendment.

Hilary Benn (Labour, Leeds Central)

I hope that the hon. Gentleman will be reassured when I tell him that public funding will be available for these hearings, for the application by the prosecution to quash the acquittal and for any retrial ordered by the Court of Appeal. I can go into detail about how it would be provided if he wishes me to do so.

Funding is already available for retrial under section 12(2) of the Access to Justice Act 1999, and a model of the regulation for the application hearing already exists in the form of regulation 3(3) of the Criminal Defence Service (General)(No. 2) Regulations 2001, which deals with quashing an acquittal under the Criminal Procedure and Investigation Act 1996. They are considered incidental to the proceedings. The amendment is undesirable, as section 12 of the 1999 Act refers not to specific types of case, but only to broad categories, and changing the scope of CDS for those purposes would entail a specific reference to the Bill that we prefer to avoid. We would prefer to amend the regulations under section 12(2)(g).

The amendment is unnecessary, as the Government have already recognised the need to make funding available for the applications and the subsequent substantive hearings.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That sounds persuasive. I am reassured by what the Minister says and I shall take him at his word, but I will still get someone to check it later. If a flaw is discovered, we shall no doubt have the opportunity to return to the matter. There is no dispute on the principle, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 67 ordered to stand part of the Bill.

Clause 68 - Appeals

Vera Baird (Labour, Redcar)

I apologise for not giving notice that I intended to raise the following issue, which has just occurred to me. An appeal to the House of Lords, as set out in section 33 of the Criminal Appeal Act 1968 is allowed only with the leave of the Court of Appeal or the House of Lords. It is not clear whether it is intended that that should apply in this case or whether the right to an appeal should be automatic. An appeal to the House of Lords with leave—the only way that it can occur—is available only if the Court of Appeal certifies that a point of law of public importance is at stake. Is it intended that that should be a criterion in these appeals, too, or will there be an appeal as of right?

As a rule, the House of Lords deals only with issues of law, so it will be a novel concept if it is obliged to deal with this issue, which, although it involves a lot of law, might involve hearing witnesses. I am not aware of any case in the House of Lords in which that has been done.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Lady makes an interesting point. I had assumed that an appeal was to be only on a point of law, the same as any other appeal to the House of Lords. In view of the nature of such applications to the Court of Appeal, there would be few occasions on which one went to the House of Lords, as most require a reconsideration of the facts. However, there may be occasions when the interpretation placed by the Court of Appeal on the facts that might allow a retrial could lead to those who represented the acquitted person to argue that the rules set down in clauses 65 and 66 were not being followed, and that they wanted a legal ruling on the point. That is how I assumed the matter would proceed.

Hilary Benn (Labour, Leeds Central)

I am happy to confirm that clause 68 would allow appeals on a point of law to be made to the House of Lords on decisions made by the Court of Appeal in respect of applications for acquittals to be quashed. The clause would also allow for a defendant to be present at the appeal hearing.

My hon. and learned Friend the Member for Redcar (Vera Baird) asked about the mechanism. If she agrees, I shall write to her on that point.

Question put and agreed to.

Clause 68 ordered to stand part of the Bill.

Clause 69 - Restrictions on reporting

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 381, in

clause 69, page 42, line 3, after 'publication', insert

'appearing anywhere in the United Kingdom.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 380, in

clause 70, page 42, line 40, after 'publication', insert

'appearing anywhere in the United Kingdom.'.

Dominic Grieve (Conservative, Beaconsfield)

We come to the question of restrictions on reporting. Some play has been made by the Government of the fact that a number of those who responded to representations said that it is essential that reporting restrictions be imposed on Court of Appeal proceedings, so that they do not become widely publicised and give rise to the public concluding that the court has arrived at a conclusion that could prejudice a jury's subsequent consideration of the case were a retrial to be ordered.

I confess that I assumed that ordinary reporting restrictions would apply, but I was struck by the Minister's saying that the procedure for retrial would not apply north of the border. The Scottish Executive have indicated to the Government that they have no desire to see the Scottish legal system altered to cater for the possibility of retrials. Therefore, the issue arises of the operation of reporting restrictions on Scottish newspapers—and not only on their publication but on their distribution in the rest of the United Kingdom.

I would be grateful for clarification, because I infer from the restrictions on reporting in clause 69—and from the offences in connection with reporting in clause 70—that it would be possible for a Scottish journalist to attend Court of Appeal proceedings and report them verbatim in a Scottish newspaper, and that nothing could be done about it. Is that a correct inference?

David Cameron (Conservative, Witney)

That brings up an intriguing possibility. The editor of The Scotsman is Mr. Andrew Neil, who broadcasts on the BBC. Under the Bill, he would not be able to speak about what was reported in his newspaper.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend makes an interesting point.

Perhaps I am wrong, but I would be interested to know where the mechanism is in clauses 69 and 70 that would allow restrictions throughout the United Kingdom.

Hilary Benn (Labour, Leeds Central)

The Government are at one with the hon. Gentleman in seeking to ensure that the reporting restrictions cover the whole of the United Kingdom. Clause 272(2) is the provision under which the object that he desires is achieved.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for drawing that to my attention. I have not had the opportunity to read clause 272(2), but I have just glanced at it and note that it extends to Scotland and Northern Ireland. I therefore infer that the Scottish Executive are agreeable to the law being enforced north of the border and that for us to legislate on that in the Bill.

Hilary Benn (Labour, Leeds Central)

I am happy to confirm that.

Dominic Grieve (Conservative, Beaconsfield)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 354, in

clause 69, page 42, line 6, after 'application', insert

'including the fact that the application has been made'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No.353, in

clause 69, page 42, line 8, at end add

'and

(c) the previous trial.'.

Dominic Grieve (Conservative, Beaconsfield)

Here again, we are concerned with clarifying exactly what will be restricted. Subsection (2) says that the matters to be restricted are ''the application'' and

''anything done in connection with the application under this Part or Part 2 of the Criminal Appeal Act 1968 (c. 19) or under rules of court.''

The questions arise whether that covers the mere fact that the application has been made, and whether the decision to make the application in the first place should essentially be secret until such time as it has been decided one way or another. The issue is important, and I would hope that the matter was so covered. I seek the Minister's assurance on that.

There is also the issue of the previous trial. If the newspapers are making reference to the previous trial as a nudge, nudge, wink, wink to the public when the application is being made, that could go a long way to defeating the restrictions on reporting that we seek. In my view there should be a rather draconian, blanket ban on reporting the fact that such an application is taking place until such time as it is finished.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There is obviously regular concurrence between the police and press over requests for silence to be kept and for reporting not to happen. I share the hon. Gentleman's view that that is not sufficient protection in such cases. One should be able effectively to prevent any reporting in advance, and there should be sanctions that follow.

I absolutely support the hon. Gentleman's second point. It happens increasingly that when the tabloids are worried about publishing the name of somebody in relation to whom an allegation has been made they invariably juxtapose an article about that person, so that all but the most stupid realise, and suddenly think that the person in the photograph on the right is the subject of the story on the left. One has seen that regularly over recent months—it is simply blatant now. That would be exactly the danger. One would find that there would be an article on the same page that would describe the previous trial, or there would be a one-year or two-years-on memorial article that just so happened to appear then. We should not tolerate that, and should take all steps to stop it.

Hilary Benn (Labour, Leeds Central)

I hope that I can offer the hon. Member for Beaconsfield the reassurance that he is looking for on amendment No. 354. The clause already makes it quite clear that reporting restrictions apply to both the application and anything done in connection with it, which would include the making of the application itself. If he at subsections (1) and (2) together, he will find that they say that

''no publication shall, except as provided by this section, include a report of . . . the application, and anything done in connection with the application''.

I think that that is clear.

I should like to reflect on amendment No. 353 and the point that the hon. Member for Southwark, North and Bermondsey made, partly because of the

arguments that he advanced, but partly because, in connection with the time line that will work in relation to the provisions for double jeopardy, a person may have been rearrested prior to the point in question. That will be reported. At that stage, the newspapers might choose to refer back to the evidence that was adduced in the original trial. Our objective should be to ensure that reporting restrictions kick in at the same stage as in relation to an ordinary case. I have found our discussion extremely helpful, although the Government are already considering the matter. On the understanding that I undertake to return to the issue, I hope that hon. Members will not press the amendments to a vote.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am grateful to the Minister for being so helpful. I share his objectives, so I am comfortable with the idea that the Government will think about that. Perhaps he will reflect on one more thing. There is a worrying trend, in that, increasingly, the police release information. For example, a raid is about to be carried out and someone is arrested. The information clearly comes from the police, because there is no other source from which it could have come. Although the intention of the police is that the information should be in the public domain, their actions are sometimes unhelpful and prejudicial. They sometimes do it with good intention, to be transparent, but there is a danger that even the well-intentioned second motive may now prejudice fair trials.

I should be grateful if the Minister would discuss with his colleagues whether clearer rules could be established governing the release of information by the police—be it formally or informally, because the same issues apply. It would be very helpful if he would consider that in the context of the beginning of the process, when reporting becomes relevant, but I hope that he will also consider the wider issue of reporting, not only in relation to double jeopardy, but in the context of the criminal justice system as a whole. As I think the Minister accepts, this is a very live issue, which gives regular cause for concern.

Dominic Grieve (Conservative, Beaconsfield)

I am reassured by the Minister's comments and grateful that the Government's approach appears to be compatible with my views about what should be done. I look forward to hearing further from him on that point, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 315, in

clause 69, page 42, line 10, after 'made', insert

'with the defendant's consent or in the interests of justice.'.

There are exceptions to the reporting restrictions in relation to a report of an appeal to the House of Lords or a report of an application to the House of Lords for leave to appeal, and an exception may be granted by the Court of Appeal in any other case. I understand the reason for including those exceptions, but we must have regard to the unusual nature of the proceedings. A person who has previously been acquitted of an offence is being put through a process that greatly interferes with his civil liberties for a second time, so he

is entitled to maximum protection, something that the amendment was designed to ensure.

I hope that the House of Lords and Court of Appeal would have the interests of justice in mind anyway, so I accept that the words in the amendment may be a little otiose, but there is no harm in including them. It seems legitimate for the Committee to consider the question of the defendant's right to veto publication of information about the trial during the proceedings. I accept that it is most unlikely that circumstances will arise in which the House of Lords or Court of Appeal wants to permit a live application to be publicised but the defendant objects. With great respect to their Lordships in the House of Lords and in the Court of Appeal, if there was such an objection while proceedings were continuing, I would take the view that, given the nature of the proceedings, the defendant's right should be superior to anyone else's, even if it seemed to be intransigent. That is why I tabled the amendment.

Hilary Benn (Labour, Leeds Central)

The Government consider the amendment unnecessary, and I hope that I shall be able to reassure the hon. Gentleman about the reasons for that. Clause 69(4) already caters for the purpose of the amendment, because it provides that, if an acquitted person objects, reporting restrictions can be lifted only if the court, having heard the representations—and I have taken note of what the hon. Gentleman said about the acquitted person's interests in that regard—is satisfied that it would be in the interests of justice to do so.

It was slightly unclear to me whether the amendment was intended to go further, and give the acquitted person a veto over the lifting of reporting restrictions when it would be in the interests of justice to lift them, or entitle him to have them lifted when that would not be in the interests of justice. If so, I could not agree. The interests of justice should be the test, and the Bill provides for those.

Dominic Grieve (Conservative, Beaconsfield)

The amendment was intended not to override the interests of justice but to give the defendant a veto over publicity while the application proceedings are current, on the basis that the procedure is on the face of it a major infringement of his civil rights. It is at least arguable that he should have the right to determine the question of publicity while the proceedings are still live.

Hilary Benn (Labour, Leeds Central)

I hear the hon. Gentleman's point, but I remain of the view that in the end the right test would be the interests of justice, having regard to the representations that the defendant could make, which would be provided for by subsection (4).

Dominic Grieve (Conservative, Beaconsfield)

I dare say that if anyone in the other place thinks that there is an issue to be dealt with, they will pursue it further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 69 ordered to stand part of the Bill.

Clause 70 - Offences in connection with reporting

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No.355, in

clause 70, page 42, line 42, leave out 'or publisher' and insert ', publisher or distributor'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 356, in

clause 70, page 43, line 6, after 'it', insert 'or distributing it'.

Dominic Grieve (Conservative, Beaconsfield)

I have lost my place. It is my fault for trying to go too fast in considering amendments. That is always a problem for the Opposition. It is a grave penalty that is visited on Opposition Members.

Simon Hughes rose—

Dominic Grieve (Conservative, Beaconsfield)

Now perhaps another grave penalty will be visited on us all.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am only trying to be helpful. When the hon. Gentleman elaborates on the arguments about publishers and distributors, will he tell the Committee whether he has had an opportunity to discuss the issue with representatives of the newspaper industry, and received professional advice about whether they would find it helpful to have it clarified?

Dominic Grieve (Conservative, Beaconsfield)

I have to admit that I have not discussed the amendments with the industry—certainly not at what I should call an official level.

The issue to which the amendments relate is of long standing—whether restrictions should be applied to those who distribute as well as those who publish newspapers. It could be argued that distributors are not normally likely to peruse the contents of newspapers in great detail, as they pass through their hands at 2 am, to see whether one or another reporting restriction order has been breached. On the other hand, the amendment is intended to highlight the importance of the issue.

I am perhaps focusing on a slightly different aspect of the matter from the one about which the hon. Member for Southwark, North and Bermondsey has expressed concern, but it seems to me that we are living, at the start of the 21st century, in an age in which reporting restrictions are increasingly being flouted with impunity. For a variety of reasons, newspapers seem to have got it into their heads that they can get away with it. They have become either sloppy or deliberately contemptuous of the court's power to control their publications. What I would have regarded 15 or 20 years ago as the blanket silence that descended when court proceedings began—when a matter was considered to be sub judice—has been substantially eroded, both in what is said and the manner in which it is said.

Of course, one can say certain things in certain circumstances. All kinds of devices seem to be employed to try and get around reporting restrictions. There are exceptions, but on the whole, it strikes me that the Attorney-General—whoever he or she may be at the time—has shown marked reluctance to bring proceedings in order to remind newspapers of their duties. If one were to extend those duties to distributors, the cat would truly be among the pigeons. Newspapers would find it very difficult to continue getting around reporting restrictions,

although to make distribution an offence might be harsh on distributors.

We may have an opportunity with what is a particularly important provision. Even more so than in the case of the ordinary criminal trial, unless we can get observance of the reporting restrictions, the whole procedure is doomed, so it is singularly important that Parliament look afresh at how reporting restrictions operate. If it is felt that the restrictions need to be toughened up, we now have an opportunity to consider how that might be done.

David Heath (Liberal Democrat, Somerton and Frome)

I agree that the present situation is not satisfactory. Would the hon. Gentleman like to comment on how the clause and his amendment would apply to internet publishing? That is often an area that is deliberately designed to circumvent any restrictions that there may be on published reporting procedures. Would his amendment include internet providers as distributors?

Dominic Grieve (Conservative, Beaconsfield)

Yes, it is quite clear that the internet's arrival is one of the mechanisms by which a coach and horses have been driven through the principles of reporting restrictions. That said, it is possible to prosecute those who contravene reporting restrictions on the internet, although that is partly dependent on where they do it from and whether they lie within the jurisdiction. However, there is no reason in principle why a prosecution should not be brought against those who do so if it is possible to trace them. What may also have to be considered in time is to what extent a fetter can be introduced on the broadcasting of that information through the internet, if it is found to be on the internet. That raises all kinds of other problems, which would take me more time to discuss than I would wish to spend at this stage in Committee.

There is another important issue, which the Minister will see soon when I come on to another group of amendments. I say this slightly tongue-in-cheek, but perhaps I may be forgiven, Mr. Cran, if I suggest that we might shorten matters by touching on them here.

I suggest a rather more draconian sentence for those who perpetrate a breach of reporting restrictions. Level 5 on the standard scale for a large national newspaper is fairly laughable—it is a pinprick. The matter is very important because the justice system in this country has been undermined by the way in which reporting restrictions are being deliberately distorted in several fields. If we are to send out a message, I am afraid that the clang of the prison door behind the odd newspaper editor is probably the only way in which we shall achieve a satisfactory result. I await with interest what the Minister has to say.

Hilary Benn (Labour, Leeds Central)

I am not sure that I shall follow the hon. Gentleman down the road that he went with his remarks, for reasons of self-protection if nothing else. Since we are peering over the fence at the next amendment—

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

No one is watching.

Hilary Benn (Labour, Leeds Central)

That is true. I was going to say that we are discussing matters in Parliament, and that more or

less guarantees that nobody is watching—more is the pity.

The hon. Member for Beaconsfield raised an important point. I tried to say in answer to the hon. Member for Southwark, North and Bermondsey that there are several issues concerning the amendment and that he added one or two others. We must reflect on those issues. However, this is not the place to discuss the provisions in the Bill dealing with double jeopardy. The hon. Gentleman answered his own slightly tongue-in-cheek question on distributors, arguing that it would not be appropriate to extend the restriction and the penalty to distributors, as they were much less likely to be aware of the contents of a publication.

The clause, in replicating the provisions on reporting restrictions elsewhere in legislation, makes it clear that the burden falls on the proprietor, the editor or the publisher of a newspaper or periodical. They would be guilty of the offence. The same culpability cannot be said to extend to distributors.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I agree that it falls within the remit of what the Minister was talking about earlier. In considering these matters, Ministers must reflect on the law of defamation, and unless I am misguided, a person who distributes a libellous document is just as liable for the libel as the person who publishes or produces it. I am keen to have consistency.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for agreeing that the issue is important. A sentence of 10 years' imprisonment was suggested in new clause 2 in the second set of amendments, which I would like to deal with now. I drafted it slightly tongue-in-cheek; it crossed my mind as I drafted it that I might include it in the schedule of retriable offences. However, I thought that perhaps a little extreme.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On a point of order, Mr. Cran. I am slightly confused by the hon. Member for Beaconsfield trespassing into the next group of amendments. I would be grateful to him if he would keep the two matters separate.

Dominic Grieve (Conservative, Beaconsfield)

I shall say nothing further on the matter at the moment. I am grateful to the Minister for his comments and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 357, in

clause 70, page 43, line 22, at end insert

''and a term of imprisonment of 10 years''.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss new clause 2—

Offences in connection with reporting—

''( ) Any person knowingly disclosing information concerning matters in section 69(1) and (2) shall be guilty of an indictable only offence punishable on indictment by 10 years imprisonment.''.

Dominic Grieve (Conservative, Beaconsfield)

I have already said that the new clause would provide for a sentence of 10 years' imprisonment rather than level 5 on the standard scale, as set out in clause 70(9). It is not quite clear to me whether the offence is indictable, and if so what the

sentence would be on indictment. Perhaps the Minister will clarify.

I am concerned that there should be a sufficient deterrent. I accept that 10 years is excessive, and I do not wish to send newspaper editors to prison for 10 years—well, not normally. The penalty ought to be sufficiently strong to act as a deterrent. There have been several notable instances when trials have become impossible because of appalling behaviour by the press.

David Cameron (Conservative, Witney)

I recognise that my hon. Friend is unlikely to be part of the charm offensive against national newspaper editors. Will he remind us what the present maximum sentence is for contempt of court by newspapers?

Dominic Grieve (Conservative, Beaconsfield)

I was awaiting enlightenment from the Minister.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

My hon. Friend the Member for Somerton and Frome commented that there is a danger that by expressing more widely those views on behalf of his party, the hon. Member for Beaconsfield might undermine all the work done by his party's charm offensive with newspaper editors. I can only say that the strategy has not been entirely successful, and a new one might be worth exploring.

David Cameron (Conservative, Witney)

Prison or else! [Laughter.]

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

If debates on the Floor of the House reflect that draconian, preparatory warnings of intervention are the only way to make people comply, that procedure may be worth testing.

More seriously, I share the view that contravention has become a regular abuse. I interpret the clause to mean that a breach can be only a summary offence, which it should not be. I have said on record for some time that one exception to the principle that I propound—that the presumption that someone should go to prison should apply only to offences of violence—is the offence of interfering with the course of justice, and contravening reporting restrictions would be interfering with the course of justice.

My understanding is that the amendment and the new clause do not go down the road of a mandatory sentence. There is some ambiguity about the new clause, but I hope that an aberration by the hon. Gentleman, even late at night when doing his homework, does not mean that he feels that the offence, however large or small, should attract a mandatory sentence.

Dominic Grieve (Conservative, Beaconsfield)

I think that the hon. Gentleman knows that I do not believe in mandatory sentences. Indeed, I expressed myself somewhat amused at the Prime Minister's belief that firearms offences would be visited with mandatory sentences when they plainly would not.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I thought that, but I am glad to hear it, because it was not entirely clear from the amendment and the new clause.

I join the plea for Ministers to examine making the offence an indictable offence or summary offence with a term of imprisonment. We are talking about short rather than long terms of imprisonment, and it would

be beneficial to have that as a remedy, particularly if it could be suspended. An editor or proprietor who was at risk of going to prison if he committed an offence again within a certain period would be much more likely to comply. I am serious about that, as we must make it clear that interfering with the course of justice is unacceptable. It does not matter how high or mighty one is, and the press must be reined in on the issue before the situation gets completely out of control. I have not seen evidence about how often such matters are argued before courts, but counsel for defendants are increasingly citing press abuses in arguing that fair trials are impossible. Our objective of more justice will not be achieved, as there will be fewer trials that result in correct convictions.

Hilary Benn (Labour, Leeds Central)

I will resist the amendment for reasons that we touched on in an earlier debate. Level 5 is currently £5,000, but I understand that a higher maximum fine could be imposed as an exceptional summary maximum penalty. I was asked about the operation of the clause, which replicates existing provisions for contempt of court. A summary conviction will bring a fine of £2,500 or one year's imprisonment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister, because I was not sure about the penalties. The Government may wish to consider, perhaps not in the context of the Bill but during a global rethink, whether the penalties are sufficient. I suggest that the financial penalties, rather than the penalties of imprisonment, could be re-examined to provide a penalty that bites on a newspaper. I accept that to lock up an editor of previous good character for 12 months would be seen as draconian, but I am not so sure about the finances.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is a lawyer and I am not, so I may be off the mark, but when a trial has been abandoned because of the activities of a publisher or proprietor, is there any scope for recovery of costs?

Dominic Grieve (Conservative, Beaconsfield)

I should not have thought that there was any scope for recovery of costs against a third party. I may be wrong, but I have certainly never heard of it. Substantial costs have certainly been incurred in notable instances. If ever the observance of reporting restrictions was essential for the processes of justice to be done, it is here.

I am grateful that when we met the Minister of State, Lord Falconer, he took what we said into account, and what had not been part of the package previously then became so. I heartily approve of that, but it has to work. The temptation to subvert it in the undoubted media interest that would be generated may be considerable, and I do not want the whole system to break down because of it. I have no particular desire to lock people up, but the penalties must be sufficient to provide deterrence.

Now that the Minister has reassured me on the custody penalties, it is mainly the financial penalties that should be re-examined. Obviously, any judge would be reluctant to send someone to prison and would prefer to impose a financial penalty, but the penalty must be substantial enough to make a large

organisation—a newspaper—feel the pinch. For this, as for health and safety at work matters, small penalties—the petty cash—are inappropriate. Larger penalties are needed to send out a clear message and to affect the bank balance sufficiently to lead to a footnote in the shareholders' report.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Health and safety is the obvious parallel. I hope that the hon. Gentleman will at least partly endorse the suggestion of my hon. Friend the Member for Somerton and Frome—that one way of making people pay for crimes is to link the costs lost by the state to the costs incurred by the person causing that loss. It would be wrong for the state to incur the costs when someone else has flagrantly broken the rules. Ministers should reflect further on that increasingly frequent problem.

That is a very good idea and the Minister and the Home Office could usefully consider the wider implications of it.

David Cameron (Conservative, Witney)

Just to place the issue in context, I worked in the television industry for many years and my hon. Friend may be interested to know that the Independent Television Commission can fine television companies that break the programme code up to 3 per cent. of their turnover. I recall commercial television companies being fined £1 million in one case and £600,000 in another. That was not for contempt of court, but it gives an idea of the sort of penalties that can be imposed and it relates to his point about notes in shareholders' annual reports. A £5,000 fine would cause no trouble.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend makes a good point. I know of some instances when the television industry breached contempt of court orders, but experience shows that it is far more common in the newspaper industry. Sometimes a breach can be a mistake, an unfortunate disaster, and the authors have to admit that they made a complete mess of it. However, I have sometimes detected slightly subversive reporting in the written media, which is worrying because it suggests a lack of respect for rules that are in place to protect defendants and the trial process.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Question proposed, That the clause stand part of the Bill.

Sylvia Hermon (UUP, North Down)

I shall not detain the Committee long, but I want the Minister to clarify a point relating to Northern Ireland. In a helpful explanation to the hon. Member for Beaconsfield of the extent of reporting restrictions, he referred to clause 272(2), which mentions Northern Ireland. Clause 70(10) states that proceedings for an offence under clause 70 may not be instituted in England or Wales

''otherwise than by or with the consent of the Attorney-General'',

or, in Northern Ireland

''otherwise than by or with the consent of the Attorney-General for Northern Ireland.''

If my memory serves me right—I am not a criminal lawyer—the Attorney-General for England and Wales is also the Attorney-General for Northern Ireland.

The Justice (Northern Ireland) Act 2002 indicated that when and if criminal justice is devolved to the Northern Ireland Assembly, whether or not the Assembly is suspended, responsibility for it will remain in Westminster. Only on the devolution of criminal justice and policing would we have an Attorney-General for Northern Ireland and an Advocate-General. Perhaps the Minister knows something that I do not; perhaps the Government are more confident about the devolution of criminal justice to Northern Ireland. Will he check the reference to the Attorney-General for Northern Ireland?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

First, I pass on my thanks to Ministers for taking on board the general issue of reporting restrictions, which has given us a peg on which to hang further matters. Secondly, as the Minister said that he would look at the matter again, it would be sensible to deal also with the general rules on reporting restrictions, because we are still talking about double jeopardy and retrials. There may be an argument for greater sanctions or penalties, but we need to decide whether the same rules should apply, as a matter of principle, to both first and second time round, or whether tougher rules should apply for the second time round because of the greater prejudice of a second trial. I hope that consideration will be given to both issues, and that the same penalty should not apply in different circumstances.

David Heath (Liberal Democrat, Somerton and Frome)

Has my hon. Friend considered whether there might be a read-across from the Communications Bill, which deals with many of the matters that regulate the press and media. There is the potential to co-ordinate the two Bills to provide a better whole.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is an entirely sensible suggestion, but I doubt whether it is possible, as both Bills are being considered in Committee, to join up Government so much that the point made by the hon. Member for Witney (Mr. Cameron) could be linked in to the deliberations of both Committees. However, it is a good idea and I commend it to the Minister. Our business managers may tell us that the opportunity may not come again in the near future. Members of the Committee considering the Communications Bill will be sending out little messages saying that they hope not to have another such Bill in the near future—just as some of us have said that we do not want a criminal justice Bill every year.

Hilary Benn (Labour, Leeds Central)

In answer to the point raised by the hon. Member for North Down (Lady Hermon), I am advised that the formula to be found in subsection (10) is widely used, but she is absolutely correct that, at present, the Attorney-General for England and Wales is the same person as the Attorney-General for Northern Ireland.

In relation to the point on reporting restrictions raised by the hon. Member for Southwark, North and Bermondsey, I have gladly undertaken to reflect on how to achieve analogous protection to that which currently applies in relation to trials, and I have heard, and in part responded to, the arguments made about

general provisions relating to reporting restrictions. Many issues are involved, and the Bill is not he right place to deal with them. However, I have certainly heard the comments that hon. Members have made.

Question put and agreed to.

Clause 70 ordered to stand part of the Bill.

Clause 71 - Retrial

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 358, in

clause 71, page 43, line 35, leave out '2 months' and insert 'one month'.

We now come to consider the procedure for retrial. Because the order comes right at the end of the investigative process, the Government clearly believe that it should be possible to move speedily from the order to a retrial taking place. It is most desirable that that should happen. This is a probing amendment.

The Minister may argue that the Government want a longer period but, as I have suggested, the amendment is designed to probe why the period of two months was chosen. I am pleased that the period is as short as that, but if it could be shortened I would be even happier, because I think that the process should move with great expedition. I should be grateful to hear the rationale behind the two-month period.

Hilary Benn (Labour, Leeds Central)

The clause allows for a period of two months between the Court of Appeal making an order for a retrial and the arraignment of the defendant on the new indictment. During that time, the prosecution will have to put together its full case against the defendant, but the clause provides safeguards, which means that the court must give leave for that period to be extended.

The amendment would reduce the period to one month, but the Government do not consider that two months is an excessive period to allow the prosecution at that stage, particularly given those safeguards, to do what needs to be done. In essence, two months is an appropriate period and one month would be too short.

Dominic Grieve (Conservative, Beaconsfield)

I am persuaded. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 382, in

clause 71, page 43, line 42, after 'he', insert

'or in the event of his death or incapacity, his personal representatives.'.

The amendment raises a point that I raised with the Minister at a previous sitting. I said that I was slightly unhappy about the processes whereby a defendant lost the status of an acquitted person and wondered how he could regain it if the proceedings against him were then dropped for some reason. The Minister provided some reassurance that it was possible to apply for the original acquittal to be restored. I prefer to use the word ''suspended'', but he preferred to use the usual word ''quashed'', and we had a debate about that, which I do not want to revisit.

It seemed to me that, if the defendant dropped down dead between the date of the quashing of his acquittal and his rearraignment before the jury for his

retrial, there was no mechanism for his personal representatives to have his acquittal restored posthumously. I believe that such a person is entitled to the restoration of that acquittal, or his family are, so I tabled the amendment to try to provide a mechanism whereby that could happen. It may commend itself to the Minister.

Hilary Benn (Labour, Leeds Central)

I remember the point that the hon. Gentleman raised. His amendment asks a question about what would happen if the person died—

Dominic Grieve (Conservative, Beaconsfield)

Or was incapacitated—

Hilary Benn (Labour, Leeds Central)

Or became incapacitated after his acquittal had been quashed, but before he had been rearraigned. Clearly, these circumstances are distinguishable from those currently provided for in the clause, as the person is no longer in jeopardy of a conviction, and there is no longer any issue of that nature to force. However, I understand the general point of principle that is being raised. The quashing of an acquittal is simply intended to allow a case to be reopened if there are compelling reasons for that. Our starting point has been that a person who dies or is incapacitated at any time after his acquittal is quashed, but before a fresh verdict is returned, should be in exactly the same position as anyone else on whom such misfortunes fall part way into an investigation or trial. No special provision is needed.

That said, I should like to reflect further on the general principle to take into account the hon. Gentleman's point. On that basis, I hope that he will withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

The Minister should think again about this point. I can see the argument. Until a person is convicted, he is not guilty of an offence. Someone who is charged with an offence in the ordinary course of events may die or be incapacitated so that the prosecution decides not to proceed. If he dies, it cannot proceed and if he is incapacitated it may choose not to. In those circumstances, he remains not guilty before the world. It is strange that we are quashing an existing acquittal, which is a statement that somebody has been tried and acquitted. The Government clearly consider that, in the event of an acquittal being quashed against a live defendant and the Crown, for some reason, coming across further information or deciding not to proceed with a retrial, that defendant is entitled not only to maintain that acquitted status but to have it restored.

In the case of an incapacitated person, as opposed to someone who is dead, the ability of personal representatives to apply on his behalf, rather than his applying himself, has some protection value for him for the future. For a dead person, it is symbolic; but such things matter. The Hanratty case was reopened in front of the Court of Appeal when it was not an issue of direct relevance to anyone other than the family and the public. There should be a mechanism, and I hope that the Government will provide one. It would be a simple amendment and it would give some reassurance as to the way in which the system will operate. Subject to that—I am grateful to the Minister for

reconsidering it—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 71 ordered to stand part of the Bill.

Clause 72 - Authorisation of investigations

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No.383, in

clause 72, page 44, line 33, at end insert

'and

(c) has sought leave from a judge of the Crown Court on an ex parte application.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 384, in

clause 72, page 45, line 14, at end insert—

'(c) he has obtained leave from a judge of the Crown Court.'.

Dominic Grieve (Conservative, Beaconsfield)

I ask the Committee to consider a much wider issue in relation to this amendment. An inevitable consequence of the procedure on which we are embarking is that an acquitted person can be subject to a reinvestigation. Many parts of the retrial for serious offences give me a sense of queasiness. The prospect of the re-arrest and reinvestigation, property search and all the other paraphernalia of an oppressive process—what would otherwise be a deeply unlawful act by the police—against a person who has the existing protection of an acquittal gives me the greatest sense of queasiness.

It is interesting that although the Government have chosen to provide, at the end of the process, the important safeguard of the Court of Appeal procedure to decide whether a retrial should take place, the decision to allow for reinvestigation, which, one can see from reading the text of clause 72, is not a matter to be taken lightly, is an administrative one. It is left to the discretion of the Director of Public Prosecutions alone.

I have great faith in the DPP, but he is the representative of the state and the public in bringing prosecutions. That is an important issue. Just as it has been the case—although that might not apply after this Bill is enacted—that the issuing of proceedings or the laying of information requires at least scrutiny by the judiciary, or a judicial figure, before it can be embarked upon, we should not allow such a procedure to be re-embarked upon without some form of judicial scrutiny being provided.

I do not want to raise the status of this procedure to that of a detailed investigation, because I do not think that that will be required. However, my strong view is that the Director of Public Prosecutions should seek the authorisation of a Crown court judge before deciding that an acquittal is not a bar to a trial and giving his written consent to an investigation. He could go, or send a representative, to the Crown court on an ex parte application to explain the case to the judge and outline the grounds on which the reinvestigation should take place. He could then secure the court's sanction for what would otherwise be a massive intrusion into the life of an individual who was entitled to the protection afforded by his acquittal.

I take a strong view on the issue and unless I get satisfaction from the Minister, I shall press the amendment to a vote—it is that important. The judiciary is there to protect the individual's interests against the state, should it ever use its power oppressively. I am sure that 99.99 per cent. of cases will involve a 45-minute hearing followed by the granting of consent. However, judicial consent should initiate the process.

Vera Baird (Labour, Redcar)

Does the hon. Gentleman not think that the DPP's decision could be judicially reviewed? One could introduce a judicial sanction in that way.

Dominic Grieve (Conservative, Beaconsfield)

Well, one could, but it is difficult to determine whether the process on which one is embarking is readily susceptible to judicial review. After all, once the DPP makes his decision, the police will presumably start scurrying around—sorry, that might be seen as a pejorative term and I did not mean it that way. The police will, however, be doing their investigations. That might prevent judicial review. It might also provide for a little judicial oversight.

Of course, it is a difficult decision. The DPP will be seized with a massive dossier and will be advised about the issue. None the less, the protection of having a Crown court authorise an investigation commends itself to me. I take the hon. and learned Lady's point that judicial review proceedings might be an option, but that raises difficult issues. For example, will everything be frozen during such proceedings? If so, one argument against them is that they might seriously impede the course of investigations, which will be carried out in the interests of justice. That could raise complicated issues. I was rather happier with the idea of subjecting the issue to judicial scrutiny, because one could then say that the investigation was taking place on the order of a Crown court judge.

We cannot escape the fact that the clause proposes a massive alteration to the basic principles that govern the grounds on which someone can be arrested and investigated. If other hon. Members think that the judicial review procedure is the better route, and the Minister says that it would be available, I will consider it. However, the amendment seemed to deal with the problem by removing the idea that it was for the DPP—the state—to initiate what could be seen as an oppressive procedure.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The amendment is important and reflects the constitutional balance to which the hon. Gentleman properly referred. It also has a practical implication. To put it neutrally, the decision to reopen a matter—or to trawl for evidence, to put it pejoratively—is in the hands of the independent judiciary, not the state or those who look after our law and order. It is important that we hold to those constitutional principles. When we debated the Terrorism Bill and the Anti-terrorism, Crime and Security Bill, I regularly argued that crucial decisions on intervention should be authorised by the judiciary. It seems to me to be a safeguard that would be in everyone's interests. I hope that the Government will see that it is in their interest too.

David Heath (Liberal Democrat, Somerton and Frome)

I do not have a great deal to add to what my hon. Friend the Member for Southwark, North and Bermondsey said, other than that I instinctively had sympathy with the amendment. Then, having thought it through, I wondered whether it would simply amount to an extension of process without any real new safeguard, given that both an assistant chief constable—or, in the case of the metropolis, a commander—and the Director of Public Prosecutions would be involved. As the hon. and learned Member for Redcar said, the actions of the DPP are subject to judicial review. However, that is a clumsy way of acquiring the imprimatur of the judiciary.

It is important that the prosecuting authorities, either the police or the DPP, should not be the sole arbiter of whether to proceed with what will inevitably be an intrusive process. Therefore, although in practical terms I expect that the amendments would have little effect, in principle and in constitutional terms some judicial scrutiny of the process is important. Therefore, I should be interested to know why the Minister appears to feel that the amendments are unnecessary.

Hilary Benn (Labour, Leeds Central)

We have rightly spent some time debating the various safeguards that the Bill contains, but I am not persuaded by the arguments advanced in support of the amendments.

The process set out in clause 72 is triggered by subsection (5), which covers the making of an application by an officer. He needs to be able to demonstrate that new evidence relevant to the application is available or known to him, or that he has reasonable grounds for believing that such new evidence is likely to become available or known to him, as a result of the investigation. The Director of Public Prosecutions is the appropriate person to take the decision at that point about whether to allow the police to reopen an investigation into an acquitted person. The DPP is qualified and experienced enough to take a decision at that stage in the process, bearing in mind all the subsequent safeguards that we have already debated.

Furthermore, clause 72(6) makes it clear that the DPP is not able to give consent unless he is satisfied, first, that the investigation is likely to produce

''sufficient new evidence to warrant the conduct of the investigation''

and, crucially, that

''it is the public interest for the investigation to proceed.''

Thus, the DPP is required by the clause to give very specific consideration to the public interest in deciding whether to allow the relevant powers to be exercised.

The Government consider that having the DPP take the decision provides a safeguard against the acquitted person being harassed by the police. I think that the hon. Member for Southwark, North and Bermondsey was the first person to comment in Committee on this issue, on which the hon. Member for Beaconsfield also touched; it is the reason why subsection (3) protects against any of the actions in question being taken either with or without the acquitted person's consent. That is intended to prevent the police from leaning on

the acquitted person to co-operate. Nothing mentioned in subsection (3) can be done without the consent of the DPP. At this stage of a re-investigation, it is proper for the decision to be taken by the prosecuting authorities rather than the courts. Involving a Crown court judge in the process would make it more cumbersome.

Finally, I am happy to confirm what my hon. and learned Friend the Member for Redcar, who is not in her place at present, mentioned in her intervention. The DPP's decision on the obligations under clause 72 would be judicially reviewable. In answer to the hon. Member for Beaconsfield, the investigation would be stayed while that judicial review was carried out.

Dominic Grieve (Conservative, Beaconsfield)

The Minister's response gives rise to two interesting issues. If the investigation is judicially reviewable and stayed for the duration of the judicial review proceeding, that could be a serious handicap to the police in carrying out the re-investigation. It could enable the potential defendant to conceal evidence, for example. However, I understand the issue, and the provision may be a sufficient safeguard.

We did not have the chance in Committee to consider the charging provisions earlier in the Bill, because we ran out of time. I regretted that, because some of the changes brought about in the charging provisions removed judicial scrutiny and turned charging into a mere administrative activity, albeit one that must be carried out according to certain rules. I assume—it has only just occurred to me—that that activity is also judicially reviewable.

I would prefer a mechanism of judicial control, because I dislike the way in which we are departing from that principle. Under this provision, a state administrator—that is what the DPP is, however fair, good and robust his qualities—who is distinct and different from the judiciary, is able to authorise a procedure that would be a gross interference with a person's freedoms and rights. I wonder whether the inclusion of such a mechanism of judicial control might prevent quite a number of judicial review proceedings. I am therefore not persuaded by the Minister, and to set down a benchmark on the issue I intend to press the amendment to a vote.

Question put, That the amendment be made:–

The Committee divided: Ayes 8, Noes 14.

David Heath (Liberal Democrat, Somerton and Frome)

I wonder whether the Minister can help me. All the provisions in the clause apply to an officer, which is defined in clause 80(1) as an officer ''of a police force''. Often, an investigating force other than a police force investigates many of the offences that come under the provisions. Such offences might be investigated by Her Majesty's Customs and Excise or by the security services. I am not clear how the clause will apply to officers of investigating forces other than police forces. The provision would be rather empty if it allowed for intrusive investigation on the part of officers other than police officers, whereas the only people prevented from doing so were police officers. What is the position with respect to other investigating forces subject to Home Office or Treasury control?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Member for Beaconsfield, no doubt in the interests of expedition, did not move amendments Nos. 317 or 318. However, they touch on two issues of principle. One is whether the Minister will look at the list in subsection (3). It strikes me that arresting or questioning not only the suspect but those associated with them triggers the same issues. That might be rather narrowly drawn and the point would apply to the rest of the list.

There is also a perfectly proper point that the provision is all about ensuring that the beginning of an investigation has an appropriate trigger. It would be ridiculous to create an artificial distinction between the most central parts of the investigation and the wider investigations. I hope that the principle—the objective—is for there to be an investigation authorised appropriately, whether with or without judicial authority. It will be with if we get our way, and we shall, I hope, persuade Ministers of that.

Irrespective of that point, however, I should be grateful if Ministers would consider whether the provisions are drawn widely enough, otherwise there might be indirect ways of starting an investigation that are not covered by the trigger mechanism that is intended.

Dominic Grieve (Conservative, Beaconsfield)

I did not move amendments Nos. 317, 318 or 359, because on reflection I felt that the clause dealt with the matter adequately. Although the hon. Gentleman is right to say that the issues are legitimate matters for consideration, those amendments were not workable, because they touched on the operation of the relationship between the police and other individuals. He is right that the issue is legitimate. There are different ways of harassing somebody—indirectly through his family, for example. However, that would be unreasonable and unlawful in any event, even if such an investigation were not about to be embarked on.

There is an issue, but on balance my decision was not so much to do with shortening the Committee's proceedings but because of the fact that, having tabled the amendments and thought about them quite late at night, I felt in the cool light of day that they were

probably not necessary. I hope that the Minister can provide some reassurance of that.

Hilary Benn (Labour, Leeds Central)

If, in the course of his late night or early morning considerations, the hon. Gentleman has managed to reassure himself on his amendments, who am I to disagree with him? The argument that he advanced as to why the Bill provides sufficient protection is exactly where the Government are coming from on the matter.

In response to the hon. Member for Southwark, North and Bermondsey, the purpose of subsection (3) is to identify a small category—I accept that it is small—of investigatory activities that are sufficiently intrusive on the privacy of an acquitted individual to require the personal and written consent of the Director of Public Prosecutions before they are undertaken. There are already many safeguards relating to the exercise of those powers. However, the clause takes that extra step in the limited circumstances listed to provide a further layer of personal protection to the acquitted person. The Government think that that is the right list.

In relation to the point that the hon. Member for Somerton and Frome raised on Customs and Excise, we are aware of the issue, and I am grateful to him for highlighting it. We shall need to consider whether it is necessary to include Her Majesty's Customs and Excise investigators who might be responsible for investigating drugs offences in particular.

Question put and agreed to.

Clause 72 ordered to stand part of the Bill.

Sitting suspended.

On resuming—

Clause 73 - Urgent investigative steps

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 319, in

clause 73, page 45, line 22, leave out 'superintendent or above' and insert 'chief constable'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 323, in

clause 74, page 46, line 15, leave out 'superintendent or above' and insert 'chief constable'.

The rest of the debate is in Hansard.