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Lord McIntosh of Haringey: My Lords, the Minister will understand that we sometimes feel that we

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are aiming at a moving target. After all, the Bill as originally introduced did not include any of the new provisions about transfer for trial. We only saw them at the Committee stage and we have to respond to them in the time between Committee and Report stages. It is longer than usual and we do the best we can in the circumstances. The Law Society and others were unable to obtain a meeting with the Home Secretary until last Tuesday and we have had to do the best we could after that. We now hear that further amendments will be introduced, presumably at Third Reading or in another place.

Baroness Blatch: My Lords, with the leave of the House, I cannot be precise about that. I shall keep the noble Lord informed and, if the amendments are not ready for Third Reading, they will have to be addressed in another place.

Lord McIntosh of Haringey: My Lords, I am grateful and recognise that any amendments would be introduced as a result of consultation with the practitioners in the field. However, the Minister will understand that I am not happy with the situation. I do not feel that we have had the opportunity that we need. However, in order to allow the consultation to continue, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 [Transfer for Trial]:

Baroness Blatch moved Amendment No. 92:

Page 21, line 21, leave out ("to this Act").

The noble Baroness said: My Lords, Amendment No. 92 is a technical amendment which removes some unnecessary words from Clause 37. I beg to move.

On Question, amendment agreed to.

[Amendment No. 93 not moved.]

Clause 38 [Provisions connected with transfer for trial]:

[Amendment No. 94 not moved.]

Clause 40 [Either way offences: accused's intention as to plea]:

[Amendment No. 95 not moved.]

7.45 p.m.

Clause 44 [Acquittals tainted by intimidation etc.]:

Lord Ackner moved Amendment No. 96:

Page 26, line 37, after ("commit") insert (", or committing,").

The noble and learned Lord said: My Lords, this amendment relates to Clause 44, regarding acquittals tainted by intimidation etc. The clause is new so far as forensic philosophy is concerned, because it sets aside an acquittal where the person has achieved that acquittal as a result of being convicted of an administration of justice offence.

The clause initially centred around the intimidation of witnesses, jurors and others. I suggested at Committee stage that, if one were to concern oneself with tainted acquittals, then perjury ought to feature. The Government kindly took up that suggestion and at

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Committee stage provided an amendment which introduced in subsection (6) an offence involving the administration of justice, and under (c) there is,

    "an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under section 1 of the Perjury Act 1911".

The lacuna--and it is a remarkable one--in what the Government propose is this. Under Clause 44 (1)(a), a person who is the acquitted person can be the same as the person in (b) who has been convicted of an administration of justice offence. One and the same person can be the subject of the acquittal tainted by his intimidation etc. of witnesses. One would have expected the same consistency to have followed once one introduced perjury as a category of tainted acquittal. The acquittal could be obtained by the perjury of the acquitted person himself or by his having aided, abetted, counselled etc.

For some reason which I find incomprehensible, the arch villain, the person who actually commits perjury, can hang on to his acquittal, it is not tainted. He will lose his acquittal if he has not himself committed perjury but has aided, abetted, counselled, procured, suborned or incited another person to commit such an offence. The provision contains the clear lacuna which we have sought to fill by adding the words "or committing" after "commit" so as to bring within the category of tainted acquittals those that have been achieved by the acquitted person's own perjury. That makes sense. As it stands at the moment, if he himself commits the perjury, he is allowed to retain what to all the world is as tainted as, if not more tainted than, an acquittal provided for in subsection 6(c). I beg to move.

Lord Williams of Mostyn: My Lords, I am chided by my noble friend Lord McIntosh, who accused me on the last occasion of confessing that I had an open mind. I have to plead guilty. Having listened to the noble and learned Lord, I find that it is plain that there is a gap here. Vicarious liability as a concept is well known in civil law and to a limited extent in criminal law, but I have never understood the concept of vicarious liability to displace personal individual liability in criminal law. The whole of the scheme depends on double jeopardy to an extent, but as I observed on the last occasion, if I had a brother--and I do--and I get him or suborn him for a consideration (since we are both Welsh!)to carry out the offence described, he is guilty and I am not. There must be something wrong there somewhere.

The Lord Advocate (Lord Mackay of Drumadoon): My Lords, I oppose the amendment. Having had the privilege of prosecuting many cases, some of which, I regret to say, resulted in acquittals, I can readily understand the sympathy which lies behind the amendment. Any prosecutor whose efforts have resulted in an acquittal brought about by evidence he believes to have been perjured evidence would wish to have the opportunity of a second bite at the cherry.

However, having thought about the matter carefully since it was first raised in Committee, the Government have reached the firm view that the amendment takes the new matter too far. As the noble and learned Lord,

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Lord Ackner, said, this is a new matter so far as forensic philosophy is concerned, to set aside an acquittal. Clearly the view is that the limited basis on which the Bill proceeds at the moment is as far as it would be appropriate to go. It is suggested that there is a lacuna and that as presently framed the Bill is wrong.

There is a clear distinction to be drawn between overt acts which positively interfere with the course of justice in one way or another, whether in relation to witnesses, jurors, subornation of perjury, etc., and the act of committing perjury itself. In many cases where acquittals result, perjured evidence is given. Sometimes it is given by witnesses giving evidence on behalf of the prosecution, who may be minded to assist the defendant as far as possible; in other instances the perjured evidence is given by the defendant; and in yet other cases by some witness called on behalf of the defendant. If perjury has been committed, it is always open to prosecute the perjurer for the perjured evidence he gave.

The amendment would take matters further. It would make a further inroad into the finality of criminal proceedings, which is an important principle. I accept that it has been departed from by the clause as presently framed. However, the amendment would make a far greater inroad than the Government feel is appropriate at the present time. For those reasons, while to some extent my heart sympathises with the amendment moved by the noble and learned Lord, Lord Ackner, my head is very firmly against it and I invite the House to resist it.

Lord Williams of Mostyn: My Lords, before the noble and learned Lord sits down, is he able to assist us on this question? Is there any other circumstance known to the criminal law, on either side of the Border that separates and joins us, where it is an offence to aid, abet, counsel, procure, suborn or incite, but not an offence to commit the substantive offence?

Lord Mackay of Drumadoon: My Lords, in those terms, off the top of my head, I am not quite sure that the noble Lord is correct. However, we are not concentrating on the offence that the individual has committed, but on the possible effect, an acquittal already determined by a jury. As I said earlier, Clause 44(6) concentrates upon the overt acts of individuals: whether they are perverting the course of justice, committing an offence under the 1994 Act or are guilty of an offence of aiding, abetting, counselling or procuring. Those offences can be committed only when some third party interferes with the evidence or deliberations of somebody already involved in a criminal trial. That is a clear distinction that can be drawn in deciding where one draws the line in introducing serious inroads into the finality of criminal proceedings, which is a very important part of our criminal justice system.

Were this proposal to be introduced, it would undoubtedly protract proceedings in many cases. While there may be a limited number of cases where it is possible to establish that a part of subsection (6) can be

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made out, there are many, many more where perjury could be established. That is why I urge the House to resist the amendment.

Lord Ackner: My Lords, before the noble and learned Lord sits down, will he explain why that differentiation has not been drawn in subsection (6)(b), but only in (6)(c)? It has been accepted that (6)(b) involves, or can involve, the very person who has been acquitted; but under (6)(c)that is not to be the case. There must be some reason for the differentiation between (b) and (c).

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