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Simon Hughes: 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
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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: 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.
Lady Hermon: 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: 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.
Mr. Grieve: 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: 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.
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Question put and agreed to.
Clause 66 ordered to stand part of the Bill.
Clause 67
Procedure and evidence
Simon Hughes: 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.
3.45 pm
Hilary Benn: 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: 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.
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Clause 68
Appeals
Question proposed, That the clause stand part of the Bill.
Vera Baird (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.
Mr. Grieve: 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: 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
Mr. Grieve: I beg to move amendment No. 381, in
clause 69, page 42, line 3, after 'publication', insert
'appearing anywhere in the United Kingdom.'.
The Chairman: 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.'.
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Mr. Grieve: 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?
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