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Lord Williams of Mostyn: I am ashamed to say that I have an open mind about this matter. But why should it be an offence to aid, abet, counsel, procure or incite another person to commit perjury and thereby achieve a tainted acquittal but not an offence to commit the perjury yourself and thereby achieve a tainted acquittal?

Baroness Blatch: The argument that I was trying to put was that that would provide an excuse for holding investigations and then a possible consideration of a retrial.

This is a matter of balance as regards the greater good and the rights of justice and the double jeopardy aspect of widening the scope of these provisions. If there is a breach as set out in the government amendment, it is right that that should form grounds for a retrial. The amendment moved by the noble and learned Lord, Lord Ackner, widens the scope of that and we believe that it widens it too much. That keeps alive the possibility of a retrial and thereby gives rise to further investigation. That may then happen too frequently and even give rise to vexatious attempts to have a person retried when there is no good case for it.

Lord Williams of Mostyn: That does not deal with my question. If I have a brother, which I do, and I encourage him to perjure himself and obtain my tainted acquittal, the scheme comes into effect. But if I confine my efforts to perjuring myself, the scheme does not come into effect. I do not detect any rational basis for that distinction.

Baroness Blatch: We have said that if there is intimidation of witnesses and jurors and subsequently it is found that a person is guilty of having caused that, then there is a case for at least considering a retrial, especially if the conviction is seen to be material to the acquittal of a person who might otherwise have been found guilty.

The noble Lord is right in the point that he makes. But we are saying that that would give rise to the possibility of many, many more retrials. We believe that the amendment in the name of the noble and learned Lord, Lord Ackner, extends the double jeopardy for someone who goes free. We believe that the provision should be kept narrower. In speaking to the amendment, I said that we should be extremely cautious about widening the scope of this provision. This is a very radical and new move. I believe that it is wise for us to take this a step at a time.

Viscount Colville of Culross: In Clause 38(1)(b), I assume that the person convicted of an administration of justice offence will include the defendant. Therefore, a double jeopardy is already built into the Bill in that respect. It is the degree to which we extend that which is the subject of this debate. Is that correct?

Baroness Blatch: That is the point that I am making. The government amendment introduces double jeopardy

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in any event. We are simply saying that it is incautious to extend that at this stage. This is a radical move. For that reason, we believe that the scope is sufficiently narrow. The justification for not proceeding in simple cases of perjury is that it could be difficult--and this is another practical point--to draw the line between perjury and a well-argued but untruthful defence.

7.45 p.m.

Lord Ackner: Before the noble Baroness sits down, will she confirm that in Clause 38(1)(b) "a person" includes the acquitted person in Clause 38(1)(a)?

Baroness Blatch: I believe that the answer is yes and I am being confirmed in that view. "A person" in Clause 38(1)(b) could be the acquitted person.

Lord Ackner: I ask that question because it emphasises the illogicality of the point that I was making in opening and which the noble Viscount also made when he addressed the Committee. If we include in Clause 38(1)(b) a person who has been acquitted, then by parity of reasoning, the person who has committed the perjury should equally be included.

If that is the answer, I am surprised--and one must not overdo the surprise because half a loaf is better than nothing--that Amendment No. 140 brings in perjury. I had expected to be told, "You are widening it too far if you are involving perjury". Once perjury is brought in, it seems to me to be astonishing that one leaves out, as a tainted acquittal, the acquittal that has been obtained by the acquitted person's perjury but that it is brought in where that person has sought to aid, abet, counsel or procure somebody else to achieve the tainted acquittal. I should have thought that it is worse for a person's own perjury to bring about the acquittal.

This seems to me to be a matter which needs further thought. I should like to read the discussion on this amendment in Hansard. In so doing, of course I accept the wisdom of the noble Baroness's Amendment No. 140. On that basis, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 137:

Page 25, line 16, leave out ("there is a real possibility that").

The noble Lord said: These are rather more straightforward matters. With this amendment perhaps we may also consider Amendment No. 139.

Paragraph (a) which we are discussing begins:

    "there is a real possibility".
What does "real" add to "possibility"? Can you have an unreal possibility? What would that mean? Would it mean anything at all? If the two amendments in my name were incorporated, subsection (2) would read:

    "Where it appears to the court ... that, but for the interference and intimidation, the accused person might not have been acquitted, the court shall so certify".
That puts the matter in exactly the same terms but in fewer words.

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The Minister will remember that on Second Reading the noble Lord, Lord Renton, said that,

    "although the drafting seems to achieve its intended legal effects, it is a little spun out and laborious. I am quite sure that it could have been drafted more succinctly".--[Official Report, 27/11/95; col. 479.]
I feel very sure that the noble Lord, Lord Renton, would approve of my two amendments. I beg to move.

Lord Ackner: I should have thought that it was accepted that there is a distinction between a real possibility and a bare possibility. Surely that is the distinction which is being made in the drafting.

Lord Monson: Although my noble and learned friend may well be right, I am sorry to say that in my view we are indebted, once again, to the noble Lord, Lord Airedale, for his customary zeal for the purity and rhythm of the English language. Whenever his promptings are acted upon--as they quite often are--they result in Acts of Parliament which are somewhat more pleasurable to read as well as being--most importantly--more readily comprehensible to the layman. Therefore, one hopes that the amendments may prove acceptable to the Government.

Baroness Blatch: The aim of the provisions of the Bill is to tackle the mischief of acquittals brought about by interference with or intimidation of jurors or witnesses. The Government believe that the threat posed by such actions justifies being able to seek a retrial of someone who has been acquitted as a result of such interference or intimidation. However, it is clearly important that there should be a sound basis for seeking a retrial in such circumstances.

The clause at present specifies that where a conviction for an offence involving interference or intimidation has taken place, the court may certify that,

    "there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted".
If such a certificate is granted, an application may be made to the High Court for the tainted acquittal to be quashed. The High Court needs to be satisfied that it appears "likely" that, but for the interference or intimidation, the person would not have been acquitted.

The amendment of the noble Lord, Lord Airedale, introduces a lower test for triggering applications to the High Court. If the court needs only to satisfy itself that an acquittal "might" not have arisen, there is likely to be a larger number of cases coming before the High Court. That will increase the burden on the criminal justice system which the application of a more rigorous test at the outset would help to avoid.

The present drafting of the clause seeks to ensure that the test which the lower court applies strikes the right balance between identifying as quickly as possible those cases where there is a real possibility of a retrial, and not interfering with those cases which are unlikely to justify invoking the new procedure. We remain of the view that the test for the lower court should remain that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted. In the light of those arguments, I hope that the noble Lord will feel able to withdraw his amendment.

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I should like to make one final point. There must be robust grounds for applying or subjecting a person to a retrial. Therefore, simply looking for reasons that might give rise to that process is just too low a test.

Viscount Colville of Culross: I suppose that, nowadays, I ought to declare an interest in the matter because there is every possibility that I would, in fact, be the lower court. I normally agree with the noble Lord, Lord Airedale, on his drafting of amendments and he has made a good point on this occasion. However, in such comparatively uncharted territory--which is what it is--I should like, as a lower court, all the signposts that I can get in order to come to the right conclusion and certify accordingly. If the words remain as they are at present, I believe that they give me more signposts than those of the noble Lord, Lord Airedale. I therefore urge that the Bill be left as it is.

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