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Criminal Justice Bill


Criminal Justice Bill
Part 10 — Retrial for serious offences

    42

 

Application for retrial

 64    Application to Court of Appeal

     (1)    A prosecutor may apply to the Court of Appeal for an order—

           (a)           quashing a person’s acquittal in England and Wales, and

           (b)           ordering him to be retried for the qualifying offence.

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     (2)    A prosecutor may apply to the Court of Appeal, in the case of a person

acquitted elsewhere than in England and Wales or Scotland, for—

           (a)           a determination whether the acquittal is a bar to the person being tried

in England and Wales for the qualifying offence, and

           (b)           if it is, an order that the acquittal is not to be a bar.

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     (3)    A prosecutor may make an application under subsection (1) or (2) only with the

written consent of the Director of Public Prosecutions.

     (4)    The Director of Public Prosecutions may give his consent only if satisfied

that—

           (a)           there is evidence as respects which the requirements of section 66

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appear to be met, and

           (b)           it is in the public interest for the application to proceed.

     (5)    Not more than one application may be made under subsection (1) or (2) in

relation to an acquittal.

 65    Determination by Court of Appeal

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     (1)    On an application under section 64(1), the Court of Appeal—

           (a)           if satisfied that the requirements of sections 66 and 67 are met, must

make the order applied for;

           (b)           otherwise, must dismiss the application.

     (2)    Subsections (3) and (4) apply to an application under section 64(2).

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     (3)    Where the Court of Appeal determines that the acquittal is a bar to the person

being tried for the qualifying offence, the court—

           (a)           if satisfied that the requirements of sections 66 and 67 are met, must

make the order applied for;

           (b)           otherwise, must make a declaration to the effect that the acquittal is a

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bar to the person being tried for the offence.

     (4)    Where the Court of Appeal determines that the acquittal is not a bar to the

person being tried for the qualifying offence, it must make a declaration to that

effect.

 66    New and compelling evidence

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     (1)    The requirements of this section are met if there is new and compelling

evidence that the acquitted person is guilty of the qualifying offence.

     (2)    Evidence is new if it was not available or known to an officer or prosecutor at

or before the time of the acquittal.

     (3)    Evidence is compelling if—

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           (a)           it is reliable,

 

 

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Part 10 — Retrial for serious offences

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           (b)           it is substantial, and

           (c)           when it is considered in the context of the outstanding issues, it is

highly probable that the person is guilty of the offence.

     (4)    The outstanding issues are the issues in dispute in the proceedings in which the

person was acquitted and, if those are appeal proceedings, any other issues

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remaining in dispute from earlier proceedings to which the appeal relates.

     (5)    For the purposes of this section, it is irrelevant whether any evidence would

have been admissible in earlier proceedings against the acquitted person.

     (6)    In subsection (2) the reference to an officer or prosecutor includes a reference

to a person charged with corresponding duties under the law in force

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elsewhere than in England and Wales.

     (7)    Where the earlier prosecution was conducted by a person other than a

prosecutor, subsection (2) applies in relation to that person as well as in

relation to a prosecutor.

 67    Interests of justice

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     (1)    The requirements of this section are met if in all the circumstances it is in the

interests of justice for the court to make the order under section 65.

     (2)    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;

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           (b)           for the purposes of that question and otherwise, the length of time since

the qualifying offence was allegedly committed;

           (c)           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

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with due diligence;

           (d)           whether any officer or prosecutor has failed to act with due expedition

since the new evidence became available or known to him or, if later,

since the commencement of this Part.

     (3)    In subsection (2) references to an officer or prosecutor include references to a

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person charged with corresponding duties under the law in force elsewhere

than in England and Wales.

     (4)    Where the earlier prosecution was conducted by a person other than a

prosecutor, subsection (2)(c) applies in relation to that person as well as in

relation to a prosecutor.

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 68    Procedure and evidence

     (1)    A prosecutor who wishes to make an application under section 64(1) or (2)

must give notice of the application to the Court of Appeal.

     (2)    Within two days beginning with the day on which any such notice is given,

notice of the application must be served by the prosecutor on the person to

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whom the application relates.

     (3)    The Court of Appeal must consider the application at a hearing.

 

 

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Part 10 — Retrial for serious offences

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     (4)    The person to whom the application relates is entitled to be present at the

hearing, although he may be in custody.

     (5)    For the purposes of the application, the Court of Appeal may, if it thinks it

necessary or expedient in the interests of justice—

           (a)           order the production of any document, exhibit or other thing, the

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production of which appears to the court to be necessary for the

determination of the application, and

           (b)           order any witness who would be a compellable witness in proceedings

pursuant to an order or declaration made on the application to attend

for examination and be examined before the court.

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     (6)    The Court of Appeal may at one hearing consider more than one application

(whether or not relating to the same person), but only if the offences concerned

could be tried on the same indictment.

 69    Appeals

     (1)    The Criminal Appeal Act 1968 (c. 19) is amended as follows.

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     (2)    In section 33 (right of appeal to House of Lords), after subsection (1A) there is

inserted—

           “(1B)              An appeal lies to the House of Lords, at the instance of the acquitted

person or the prosecutor, from any decision of the Court of Appeal on

an application under section 64(1) or (2) of the Criminal Justice Act 2003

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(retrial for serious offences).”

     (3)    At the end of that section there is inserted—

           “(4)              In relation to an appeal under subsection (1B), references in this Part to

a defendant are references to the acquitted person.”

     (4)    In section 34(2) (extension of time for leave to appeal), after “defendant” there

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is inserted “or, in the case of an appeal under section 33(1B), by the prosecutor”.

     (5)    In section 38 (presence of defendant at hearing), for “has been convicted of an

offence and” substitute “has been convicted of an offence, or in whose case an

order under section 65 of the Criminal Justice Act 2003 or a declaration under

section 65(4) of that Act has been made, and who”.

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 70    Restrictions on reporting

     (1)    Where notice of an application has been given under section 68(1), no

publication shall, except as provided by this section, include a report of any of

the matters within subsection (2).

     (2)    Those matters are—

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           (a)           the application, and

           (b)           anything done in connection with the application under this Part or

Part 2 of the Criminal Appeal Act 1968 or under rules of court.

     (3)    An order that subsection (1) is not to apply to a report, or is not to apply to a

specified extent to a report, may be made—

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           (a)           by the House of Lords, in the case of a report of an appeal to that House,

or of an application to that House for leave to appeal;

           (b)           by the Court of Appeal, in any other case.

 

 

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Part 10 — Retrial for serious offences

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     (4)    If the acquitted person objects to the making of an order under subsection (3)—

           (a)           the House of Lords or Court of Appeal are to make the order if (and

only if) satisfied, after hearing that person’s representations, that it is in

the interests of justice to do so, and

           (b)           the order (if made) is not to apply to the extent that a report deals with

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any such objection or representations.

     (5)    Subsection (1) does not apply to the inclusion in a publication of a report of, or

of anything done in connection with, an application—

           (a)           at a time when there is no longer any step that could be taken which

would lead to the acquitted person being tried pursuant to an order

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made on the application, or

           (b)           if he is tried pursuant to such an order, after the conclusion of the trial.

     (6)    Nothing in this section affects any prohibition or restriction by virtue of any

other enactment on the inclusion of any matter in a publication.

     (7)    In this section—

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                    “programme service” has the same meaning as in the Broadcasting Act

1990 (c. 42),

                    “publication” includes any speech, writing, relevant programme or other

communication in whatever form, which is addressed to the public at

large or any section of the public (and for this purpose every relevant

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programme is to be taken to be so addressed), but does not include an

indictment or other document prepared for use in particular legal

proceedings,

                    “relevant programme” means a programme included in a programme

service.

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 71    Offences in connection with reporting

     (1)    This section applies if a publication includes a report in contravention of

section 70.

     (2)    Where the publication is a newspaper or periodical, any proprietor, editor or

publisher of the newspaper or periodical is guilty of an offence.

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     (3)    Where the publication is a relevant programme—

           (a)           any body corporate or Scottish partnership engaged in providing the

programme service in which the programme is included, and

           (b)           any person having functions in relation to the programme

corresponding to those of an editor of a newspaper,

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            is guilty of an offence.

     (4)    In the case of any other publication, any person publishing it is guilty of an

offence.

     (5)    If an offence under this section committed by a body corporate is proved—

           (a)           to have been committed with the consent or connivance of, or

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           (b)           to be attributable to any neglect on the part of,

            an officer, the officer as well as the body corporate is guilty of the offence and

liable to be proceeded against and punished accordingly.

     (6)    In subsection (5), “officer” means a director, manager, secretary or other similar

officer of the body, or a person purporting to act in any such capacity.

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Part 10 — Retrial for serious offences

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     (7)    If the affairs of a body corporate are managed by its members, “director” in

subsection (6) means a member of that body.

     (8)    Where an offence under this section is committed by a Scottish partnership and

is proved to have been committed with the consent or connivance of a partner,

he as well as the partnership shall be guilty of the offence and shall be liable to

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be proceeded against and punished accordingly.

     (9)    A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 5 on the standard scale.

     (10)   Proceedings for an offence under this section may not be instituted—

           (a)           in England and Wales otherwise than by or with the consent of the

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Attorney General, or

           (b)           in Northern Ireland otherwise than by or with the consent of the

Attorney General for Northern Ireland.

Retrial

 72    Retrial

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     (1)    Where a person—

           (a)           is tried pursuant to an order under section 65(1), or

           (b)           is tried on indictment pursuant to an order under section 65(3),

            the trial must be on an indictment preferred by direction of the Court of

Appeal.

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     (2)    After the end of 2 months after the date of the order, the person may not be

arraigned on an indictment preferred in pursuance of such a direction unless

the Court of Appeal gives leave.

     (3)    The Court of Appeal must not give leave unless satisfied that—

           (a)           the prosecutor has acted with due expedition, and

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           (b)           there is a good and sufficient cause for trial despite the lapse of time

since the order under section 65.

     (4)    Where the person may not be arraigned without leave, he may apply to the

Court of Appeal to set aside the order and—

           (a)           for any direction required for restoring an earlier judgment and verdict

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of acquittal of the qualifying offence, or

           (b)           in the case of a person acquitted elsewhere than in England and Wales

or Scotland, for a declaration to the effect that the acquittal is a bar to

his being tried for the qualifying offence.

     (5)    An indictment under subsection (1) may relate to more than one offence, or

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more than one person, and may relate to an offence which, or a person who, is

not the subject of an order or declaration under section 65.

     (6)    Evidence given at a trial pursuant to an order under section 65(1) or (3) must

be given orally if it was given orally at the original trial, unless—

           (a)           section 101 applies, or

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           (b)           the witness is unavailable to give evidence, otherwise than as

mentioned in subsection (2) of that section, and section 99(1)(d) applies.

 

 

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Part 10 — Retrial for serious offences

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     (7)    At a trial pursuant to an order under section 65(1), paragraph 5 of Schedule 3

to the Crime and Disorder Act 1998 (c. 37) (use of depositions) does not apply

to a deposition read as evidence at the original trial.

Investigations

 73    Authorisation of investigations

5

     (1)    This section applies to the investigation of the commission of a qualifying

offence by a person—

           (a)           acquitted in England and Wales of the qualifying offence, or

           (b)           acquitted elsewhere than in England and Wales or Scotland of an

offence the commission of which as alleged would have amounted to

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or included the commission in the United Kingdom of the qualifying

offence.

     (2)    Subject to section 74, an officer may not do anything within subsection (3) for

the purposes of such an investigation unless the Director of Public

Prosecutions—

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           (a)           has certified that in his opinion the acquittal would not be a bar to the

trial of the acquitted person in England and Wales for the qualifying

offence, or

           (b)           has given his written consent to the investigation (whether before or

after the start of the investigation).

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     (3)    The officer may not, either with or without the consent of the acquitted

person—

           (a)           arrest or question him,

           (b)           search him or premises owned or occupied by him,

           (c)           search a vehicle owned by him or anything in or on such a vehicle,

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           (d)           seize anything in his possession, or

           (e)           take his fingerprints or take a sample from him.

     (4)    The Director of Public Prosecutions may only give his consent on a written

application, and such an application may be made only by—

           (a)           an officer of the metropolitan police force or the City of London police

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force of the rank of commander or above, or

           (b)           an officer of any other police force of the rank of assistant chief

constable or above.

     (5)    An officer may make an application under subsection (4) only if—

           (a)           new evidence which would be relevant to an application under section

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64(1) or (2) in respect of the qualifying offence is available or known to

the officer, or

           (b)           the officer has reasonable grounds for believing that such new evidence

is likely to become available or known to him as a result of the

investigation.

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     (6)    The Director of Public Prosecutions may not give his consent unless satisfied

that—

           (a)           there is, or there is likely as a result of the investigation to be, sufficient

new evidence to warrant the conduct of the investigation, and

           (b)           it is in the public interest for the investigation to proceed.

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Part 10 — Retrial for serious offences

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     (7)    In giving his consent, the Director of Public Prosecutions may recommend that

the investigation be conducted otherwise than by officers of a specified police

force.

 74    Urgent investigative steps

     (1)    Section 73 does not prevent an officer from taking any action for the purposes

5

of an investigation at a time when each of the following conditions is met.

     (2)    The first condition is that the investigation is authorised by an officer of the

rank of superintendent or above.

     (3)    Such an authorisation may be given before or after the start of the

investigation.

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     (4)    The second condition is that—

           (a)           new evidence which would be relevant to an application under section

64(1) or (2) in respect of the qualifying offence to which the

investigation relates is available or known to the officer authorising the

investigation, or

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           (b)           that officer has reasonable grounds for believing that such new

evidence is likely as a result of the investigation to become available or

known to him.

     (5)    The third condition is that the action is necessary as a matter of urgency—

           (a)           to prevent the investigation being substantially and irrevocably

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prejudiced, or

           (b)           to prevent death or serious personal injury.

     (6)    The fourth condition is that—

           (a)           there has been no undue delay in applying for consent under section

73(2),

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           (b)           that consent has not been refused, and

           (c)           taking into account the urgency of the situation, it is not reasonably

practicable to obtain that consent before taking the action.

     (7)    An authorisation under subsection (2) must—

           (a)           if reasonably practicable, be given in writing;

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           (b)           otherwise, be recorded in writing by the officer giving it as soon as is

reasonably practicable.

Arrest, custody and bail

 75    Arrest and charge

     (1)    If a justice of the peace is satisfied by written information that new evidence

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which would be relevant to an application under section 64(1) or (2) in respect

of the commission by any person of a qualifying offence is available or known

to an officer, the justice may issue a warrant to arrest that person for that

offence.

     (2)    Subsections (3) and (4) apply where a person is arrested under a warrant issued

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under subsection (1).

 

 

 
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