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Lord Mackay of Drumadoon: My Lords, I hesitate to disagree with my noble and learned friend but, in my construction of subsection (6)(c) as presently framed, it could be the defendant who was guilty of the offence of aiding, abetting, counselling, procuring, suborning or inciting another person. I do not see the distinction between (6)(b) and (6)(c) as currently drafted.

Lord Williams of Mostyn: My Lords, before the noble and learned Lord the Lord Advocate sits down, may I repeat the question of the noble and learned Lord, Lord Ackner, in respect of (6)(a)? The defendant could have done that.

Lord Mackay of Drumadoon: My Lords, he could indeed have done that. But in doing that he would have been guilty of an overt act outwith, or beyond, the giving of his evidence in the trial on the charge upon which he had originally been acquitted. Again, there is a distinction to be drawn where there is the giving of perjured evidence by an individual--which anyone with experience of criminal trials recognises occurs from time to time, and which is suspected by, let us say, unhappy prosecutors of occurring very frequently. That is a valid distinction and one that falls to be drawn from the situation set out in subsections (6)(a), (6)(b) and (6)(c) as to whether the defendant or some associate of the defendant requires some actings beyond the giving of the perjured evidence itself.

Clearly, assuming that the Bill becomes law in the terms in which it is presently framed, experience of the use of this section will be obtained. In the fullness of time there may be some scope for taking the matter further. The Government, having considered the matter very carefully--

Lord McIntosh of Haringey: My Lords, I beg the noble and learned Lord's pardon. I was remarking on the "if pressed" bit.

Lord Mackay of Drumadoon: My Lords, that reminds me. Because of my regretted absence earlier in giving a statement to a committee of the other place--in Inverness of all places!--I was not able to be present earlier, for which I apologise, and I have not yet read the part of the brief that says, "if pressed".

The Earl of Courtown: My Lords, perhaps I may remind noble Lords that this is Report stage. Apart from the mover, everybody else has just one crack of the whip.

Lord Ackner: My Lords, the observations of the noble and learned Lord the Lord Advocate remind me

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of a forensic story I heard. A very large Canadian QC was dining with an equally large Canadian, who was no longer a QC but who had just become a judge. The bill for the meal arrived, and the QC who was still a QC moved forward and took hold of the bill. The recently appointed judge put his great hand on top of the QC's hand and said: "Tainted, but it tain't enough". That seems to sum up exactly the submission that we have heard in this case. It is clearly tainted by the ex hypothesi forgery of the acquitted person. I can think of no better stimulus for dividing the House than to be told that I have the noble and learned Lord's heart on my side. To have broken through that granite reinforcement fills me with so much enthusiasm that I shall invite the decision of the House.

7.58 p.m.

On Question, Whether the said amendment (No. 96) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 63.

Division No. 5


Ackner, L. [Teller.]
Acton, L.
Addington, L.
Archer of Sandwell, L.
Birk, B.
Blackstone, B.
Borrie, L.
Clinton-Davis, L.
Craigavon, V.
David, B.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Falkender, B.
Farrington of Ribbleton, B.
Fisher of Rednal, B.
Gladwin of Clee, L.
Graham of Edmonton, L.
Hamwee, B.
Hollis of Heigham, B.
Jeger, B.
Jenkins of Putney, L.
Judd, L.
Kilbracken, L.
Longford, E.
McCarthy, L.
McIntosh of Haringey, L.
Mason of Barnsley, L.
Morris of Castle Morris, L. [Teller.]
Nicol, B.
Richard, L.
Rodgers of Quarry Bank, L.
Strabolgi, L.
Taylor of Gryfe, L.
Templeman, L.
Tordoff, L.
Turner of Camden, B.
White, B.
Williams of Mostyn, L.
Winston, L.


Addison, V.
Aldington, L.
Ampthill, L.
Archer of Weston-Super-Mare, L.
Beloff, L.
Blaker, L.
Blatch, B.
Blyth, L.
Brentford, V.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L.
Caithness, E.
Carnock, L.
Chesham, L. [Teller.] Clanwilliam, E.
Clark of Kempston, L.
Courtown, E.
Craigmyle, L.
Cranborne, V. [Lord Privy Seal.]
Cumberlege, B.
Dean of Harptree, L.
Denham, L.
Denton of Wakefield, B.
Goschen, V.
Harmar-Nicholls, L.
Harmsworth, L.
HolmPatrick, L.
Inglewood, L.
Jenkin of Roding, L.
Kimball, L.
Lane of Horsell, L.
Lindsey and Abingdon, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Lyell, L.
Lytton, E.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L.
[Lord Chancellor.]
Mackay of Drumadoon, L.
Macleod of Borve, B.
Marlesford, L.
Massereene and Ferrard, V.
Miller of Hendon, B.
Monteagle of Brandon, L.
Northesk, E.
O'Cathain, B.
Peyton of Yeovil, L.
Reay, L.
Rennell, L.
Shrewsbury, E.
Skelmersdale, L.
Skidelsky, L.
Stockton, E.
Strathclyde, L. [Teller.]
Swinton, E.
Thomas of Gwydir, L.
Torrington, V.
Trumpington, B.
Vivian, L.
Wakeham, L.
Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

5 Feb 1996 : Column 83

8.6 p.m.

Clause 47 [Tainted acquittals: supplementary]:

Lord Mackay of Drumadoon moved Amendment No. 97:

Page 28, line 19, leave out ("the granting of a certificate") and insert ("a certification").

The noble and learned Lord said: My Lords, this is a minor amendment to improve the drafting of Clause 47 of the Bill. Clause 47 itself sets out amendments to the Offences Against the Person Act 1861 and the Contempt of Court Act 1981 which are consequential upon the provisions of Clauses 44 to 46, dealing with retrials following acquittals tainted by intimidation. One of the requirements for seeking a retrial is that the court before which a person is convicted of an intimidation offence must certify that it appears to the court that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted. That does not actually involve the granting of a certificate, as is implied by the current text of Clause 47(4). It is more accurate to refer to it as a process of certification, which is what this amendment achieves. I beg to move.

On Question, amendment agreed to.

Clause 48 [Restriction on reporting of certain assertions]:

Baroness Blatch moved Amendment No. 98:

Page 29, line 2, leave out subsection (6) and insert--
("(6) Section (Restriction on reporting of assertions) has effect where a court makes an order under subsection (7) or (8).").

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 99, 102, 103, 104, 106 and 107.

These amendments extend to Great Britain, rather than just England and Wales, the prohibition on reporting derogatory assertions which are the subject of a restriction order made by a court in England and Wales in line with the other reporting restrictions in the Bill.

The first amendment removes the existing subsection (6) of Clause 48, which specifies that the reporting restrictions apply to publications and broadcasts in England and Wales. It is replaced by a new subsection that explains that the provisions of the new clause inserted after Clause 48 will have effect where the court

5 Feb 1996 : Column 84

makes an interim or final restriction order. The second amendment removes subsections (9) and (10). The text of these subsections is incorporated into one new clause (referred to below) which has the effect of extending the prohibition on reporting to Scotland.

The effect of the new clause inserted after Clause 48 is that, where an order preventing the publication or broadcasting of a derogatory assertion is made, it will prohibit reporting in Great Britain. In addition to extending the prohibition to Scotland, the new clause reproduces and replaces the effect of subsections (6), (9) and (10) of the current Clause 48.

The third and fourth amendments to Clause 49, and the fifth and sixth amendments to Clause 50, are technical amendments which translate the cross-referencing of the provisions of these clauses into references to the new clause after Clause 48 in consequence of the redrafting of the provisions. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 99:

Page 29, line 23, leave out subsections (9) and (10).

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 100:

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