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Mr. Grieve: 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: I am happy to confirm that the circumstances that the hon. Gentleman describes could apply.
Mr. Grieve: 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
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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Amendment, by leave, withdrawn.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.
Division No. 17]
AYES
Allen, Mr. Graham
Baird, Vera
Benn, Hilary
Clark, Paul
Harman, Ms Harriet
Heppell, Mr. John
Hesford, Stephen
Humble, Mrs. Joan
Kidney, Mr. David
Lucas, Ian
Taylor, Ms Dari
Turner, Dr. Desmond
NOES
Cameron, Mr. David
Grieve, Mr. Dominic
Heath, Mr. David
Hermon, Lady
Hughes, Simon
Simmonds, Mr. Mark
Question accordingly agreed to.
Clause 65 ordered to stand part of the Bill.
Clause 66
Interests of justice
Mr. Grieve: 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;'.
The Chairman: With this it will be convenient to discuss amendment No. 332, in
clause 66, page 40, line 29, leave out 'it is likely that'.
Mr. Grieve: 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: 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.
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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: 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.
Mr. Grieve: 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: 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
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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.
Mr. Grieve: 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: 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.
Mr. Grieve: 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: For the sake of clarity, I hope that I did address that point in the remarks that I have just made.
Mr. Grieve: The Minister certainly touched on the point, although he may not have satisfied the hon. Member for Southwark, North and Bermondsey (Simon Hughes).
3 pm
Mr. David Heath (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.
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