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Earl Russell: I support my noble friend's amendment. I mentioned just now the danger that the provision would be used for vendetta. One of the cases that I have in mind concerned a young man who was a member of my seminar. He had been accused of murder, tried and acquitted. I may add that the young man came from West Belfast. The murder was the murder of a policeman. The police clearly were firmly of the opinion that the person was guilty. At every possible opportunity, for years afterwards, they used to arrest him for anything that they could possibly throw at him.

Policemen who believe firmly in someone's guilt of murdering another policeman very naturally tend to feel rather strongly about it. If those police had had the opportunity—believing, as I understand they did, firmly in the young man's guilt—simply to go through their files, dig up anything they found and persuade someone that this was reasonable and compelling—many of the safeguards are ones that cannot really adequately be established before cross-examination—I am convinced that that would have happened. I am not convinced that this sort of repeated return to something is in the interests of justice. I am not persuaded that this repeated trawling of police files is in the interests of justice. I think the requirement that it should be new evidence is a sensible requirement and would help to keep the scope of these provisions within boundaries. I hope that the noble and learned Lord will look on this with some favour.

Lord Neill of Bladen: I hope that the noble and learned Lord the Attorney-General will have deduced from what I said when I spoke before that I think this definition of new evidence is inadequate. It is a lower test than is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement

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here. I do not have a very strong view as to which of the two propositions should be accepted—namely, that of the noble Baroness, Lady Anelay, or that of the noble Lord, Lord Thomas. But it is something that needs to be looked at. If there is to be new evidence, the definition must be tightened up.

Lord Goldsmith: Clause 72 requires that,

    "there is new and compelling evidence against the acquitted person in relation to the qualifying offence".

It defines evidence which is to be regarded as "new and compelling" for the purposes of this part of the Bill. The definition of new evidence, as it stands in the Bill, is straightforward, factual and objective. Clause 72(2) states that,

    "Evidence is new if it was not adduced",

at the original trial. I emphasise that that is a threshold test. The Bill provides further safeguards by requiring the court to consider whether the evidence is compelling, as set out in Clause 72, and whether it would be in the interests of justice for a retrial to be ordered, in Clause 73.

It is important to note that Clause 73 provides the significant safeguard at which, fundamentally, both amendments are aimed. It is for the Court of Appeal to decide whether the interests of justice are such that the order for a retrial should be made. In reaching that view as to the interests of justice, the Court of Appeal is required to take into account whether there was any lack of due diligence or expedition on the part of the police or prosecution, either in their original proceedings or in the new proceedings. I draw attention in particular to Clause 73(2)(c) and (d), which will specifically guard against the criticism that a poor police investigation can simply lead to a "second bite of the cherry". It is in no one's interest that that should happen. It is clearly in everyone's interest that the police investigation and the prosecution should be put on the best basis possible at the time of the first trial. Given that this part of the Bill provides only a limited exception, there is no incentive for the police or the prosecution not to do that.

The Government believe that the best way of achieving the protection is as has been set out in Clause 73 rather than in the way set out in the amendments proposed by the noble Baroness, Lady Anelay, and the noble Lord, Lord Thomas of Gresford.

6.30 p.m.

Lord Neill of Bladen: Would the noble and learned Lord be good enough to consider this question? Turning first to Clause 73(2)(c), all it requires is that the court should have regard to such new evidence. It does not say that it would be a knock-out blow either way. It simply provides that having regard to it should be one of the factors in answering the question in subsection (1):

    "if in all the circumstances it is in the interests of justice . . . to make the order".

The noble and learned Lord appears to be arguing that if it is a case where there has been negligence in the past resulting in the evidence not being adduced, that by

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itself would lead to a new prosecution. Is that the case? I am not sure. It is simply one matter to which the court must have regard.

Lord Goldsmith: Indeed it is a matter to which the court is required to have regard. Reverting to our previous discussions, I do not doubt that the court would look very hard indeed at that particular matter.

Earl Russell: Does the noble and learned Lord agree with the view once expressed in this Chamber by the noble and learned Lord, Lord Simon of Glaisdale, that the words "have regard to" mean almost exactly nothing?

Lord Goldsmith: I am not aware of the occasion on which the noble and learned Lord, Lord Simon of Glaisdale, made that remark. I have enormous respect for him, not least because he is also a former Law Officer; indeed, the oldest surviving former Law Officer since the sad demise of Lord Shawcross. I do not know the context in which he said it and I certainly would assert that it is significant, important and of the greatest moment that Clause 73(2) requires the court to have regard, in considering the interests of justice, to a number of specific matters.

I have no doubt that the Court of Appeal—in which I have great confidence, as do all noble Lords—will consider this properly and take it into account. I do not accept that it would need always and in every case to be a knock-out blow, but that would be for the Court of Appeal to determine. Ultimately the Court of Appeal will be concerned with what is required in the interests of justice. Those interests of justice certainly will require a consideration of the position of the defendant and whether on the first occasion the trial ought to have been dealt with in a different way, but that may not be the only consideration to which the Court of Appeal will have regard. However, that is for the court to decide.

The noble Lord, Lord Carlisle of Bucklow, suggested that at this stage I should deal with the point that this is a more generous test than that applied to the defence. With respect, I do not believe that that is right. The defence will be able to appeal. For example, the Criminal Complaints Review Commission may bring before the Court of Appeal new evidence which could have been adduced before, but which had not been. Indeed, that is a circumstance in which matters are brought back to the Court of Appeal and it would be surprising if it were not. It would be very surprising if the law stated that where a miscarriage of justice had taken place because of the incompetence of the lawyers acting for the defendant, there was no means by which that could be corrected by the Court of Appeal.

I think that the noble Lord might have had in mind the principle which applies in civil cases, but which is an entirely different circumstance. So this is not more generous to the prosecution; quite the reverse, it remains a much narrower test.

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However, I sought to suggest that there are three objections to the proposed amendment. First, it would give rise inevitably to extensive legal debate about whether any particular piece of evidence could or should have been produced by the police at an earlier stage. Secondly, it would replace an objective threshold test with a more subjective one, which might result in the exclusion of evidence which had not previously been put before the court, but which might otherwise be regarded as compelling.

Thirdly, it is right that the Court of Appeal should consider the nature of any evidence which has not previously been adduced, but which might be compelling in terms of the case against the acquitted person, and reach a decision about whether it is in the interests of justice and the interests of the whole community, for a retrial to proceed, taking all the relevant factors into account.

The right way of providing an appropriate safeguard against those who are looking for a second bite of the cherry is to include this important requirement in Clause 73. That is the answer both to the amendment of the noble Baroness and to the amendment of the noble Lord, Lord Thomas.

Viscount Colville of Culross: I am not troubled that there is a very strict test about what is compelling or that there is a very strict burden on the Court of Appeal under Clause 73. However, if we are trying to tighten up the matter, I wonder whether this really is new. If it is not new, we have a very loose and slack test.

The difficulty with the Bill as it stands is that there is nothing to suggest that this really is new—it has just not been adduced before. Although the failure to adduce it may not be due to incompetence, the fact is that it has not been adduced. I would be much happier about the whole of Part 10 if "new" meant new.

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