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Earl Russell: I am very glad that my noble friend Lord Thomas has tabled Amendment No. 135ZA. The great danger with any provision of this sortany relaxation of the ruleis that one creates an opportunity for vendetta. The use of the law as a vendetta in many societies in this century and others has not been unknown. It can be a very formidable form of vendetta. For that reason, I am surprised that the Government have decided to include an offence such as rape on their list of offences that may be tried a second time.
My noble friend's amendment at least has the advantage of introducing certainty and excluding, with the exception of murder, those elements that are most liable to give rise to vendettas. That is a very sensible precaution.
Lord Hylton: As a mere layman in these matters, I support the principle of restricting the list as much as possible. On those grounds, I prefer the amendment tabled by the noble Lord, Lord Thomas, to that moved by the Conservative Front Bench. However, if we had to vote on the matter, I would support either.
Lord Goldsmith: I indicated earlier that I wanted to listen carefully to what was said in this part of the debate, so I am grateful to those who have spokenalbeit briefly, but I know from the previous longer discussion what lies behind many of the points made.
It is necessary to bear in mindif I may respectfully say so, the observations of the noble Lord, Lord Thomas, do notthat the Government received advice not just from the Law Commission but from Lord Justice Auld, who has also dealt with the issue. He recommended that the provision go beyond that suggested by the Law Commission to cover all offences that carry a maximum penalty of life imprisonment. That is helpful advice, but, with respect to Lord Justice Auld, there is a difficulty with it in that all common law offences carry a maximum sentence of life imprisonment. It seemed to the Government that more certainty was necessary. We have therefore sought to identify offences considered to have a particularly serious impact on the victim, their family or on society more widely, which, for the most part, carry a maximum penalty of life imprisonment.
I respectfully differ from the noble Earl, Lord Russell, in considering the importance of including rape, for example. One can imagine casessadly, we have had somewhere individuals have carried out campaigns of rape against women in one part of the country or throughout it. I would not regard such cases as a vendetta. I agree entirely that the law should not be used as a means of a vendetta. If we are to extend the principle of being able to come back on cases, as we believe we should, those cases should be included also.
Other offences fall within the list. However, as my honourable friend Hilary Benn said in another place, where you draw the line is a matter of judgment. The noble Baroness, Lady Anelay, specifically asked my view in relation to manslaughter. The Government's view is that manslaughter should appear on the list. Indeed, there may even be difficulties in not having it appear. For example, there could be sufficient evidence and a compelling case to retry a person for murder who had previously said that he was not at the scene at all. When that case comes before the court, although it seems clear that the defendant was the person who killed, for the first time, the question might arise whether that person should be convicted of manslaughter on the grounds of diminished responsibility. I am not sure that I am right about that, but it needs further consideration. Manslaughter can be a very serious crime if the circumstances have been demonstrated to make it out in the way proposed.
I recognise that a matter of judgment is involved. Although the Government's schedule has been drawn up in the belief that it covers the right offences, recognising that an offence is on the list does not mean that all the cases that fall into that category will be sent to the Court of Appealfar from it. I would like to consider what has been said today and return to the matter on a future occasion.
Baroness Anelay of St Johns: My response will be brief after that generous offer from the noble and learned Lord. This is a key issue with regard to the safeguards that should hedge around double jeopardy, so I am grateful to him for his offer to consider the matter again. We will, I am sure, meet the noble Lord, Lord Thomas of Gresford, between now and Report to consider the position further.
In the view of responses earlier from the Minister and amendments tabled by the noble Lord, Lord Thomas of Gresford, it is not appropriate for me to move Amendment No. 135A. That will disappear. I beg leave to withdraw the amendment.
The noble Baroness said: The amendment poses a question with regard to the new and compelling evidence that, as defined in the Bill, would enable the relaxation of the rule of double jeopardy to take place and for a retrial to occur. It would appear from the drafting of the clause that the new and compelling evidence is evidence that was available at the time of the original trial, but was simply not adduced at that trial. It may have been in the hands of the prosecution or, potentially, in the hands of the police but not the prosecution. It may have been in existence, but due to an inadequate investigationnot only through someone's faultit was not available at the time of that first trial.
The question that goes to the heart of the matter is what would happen if the prosecution had the evidence and, for whatever reason, chose not to use it? Should it then be used to trigger a retrial? The prosecution may not have realised the significance of the evidence, or they may have decided that, although it should be significant, it would not, at that time, come up to proof; and, therefore, did not use it.
At this stage of the Bill's progress and given the time of day and the impending Recess, I move the amendment as a probing amendment to ask the Government to develop further their argument for why they have come up with this definition, instead of the original definition, which was intended to be a matter of new scientific evidence. The case has been made by many bodies that there should be a reasonableness test and that evidence should be brought forward only if it was not reasonably available at the time of the first trial. Other noble Lords have already said today that they might prefer it if it were the case that evidence should be adduced only if it had come to light subsequently and was not in anybody's hands at the time of the original trial.
Lord Thomas of Gresford: If it does not cause difficulty to the noble and learned Lord the Attorney-General, I shall speak to Amendment No. 135BA, which is on the same topic, although it is not grouped with the noble Baroness's amendment.
It is more important that the evidence that was discoverable by "reasonable and diligent inquiry", in the terms of my amendment, should not be the "new and compelling evidence" referred to in Clause 72. My amendment would make it an absolute condition that the Court of Appeal could not order a new trial on the basis of evidence in respect of which the police investigation had been a failure or had been inadequate. I shall move that amendment in due course.
Lord Carlisle of Bucklow: In the case of new evidence as regards the defence and their subsequent application for a retrial, I have always understood that such evidence was not available to the defence to be adduced at the time of the trial. This definition of "new" goes far wider than that. I had assumed that, by "new evidence", the Government meant evidence that had since become available but was not available to the prosecution at that time. I hope that the noble and learned Lord the Attorney-General will reconsider the definition of "new evidence". It appears to cover anything that the prosecution do not choose to use at the time.
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