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Lord Goldsmith: The noble Baroness finished her speech by referring to the risk of prejudicial material being published between the decision of the Court of Appeal and the time of the trial. She is right to raise the issue, which the Government have already considered. It is an important point, which is why later clauses, particularly Clause 76, provide for important reporting restrictions that the Court of Appeal can impose.

Amendment No. 135C would turn the words "existing circumstances" into,

"the circumstances existing at the time the court is considering the application".

I am not entirely sure whether it is intended to read the two amendments together. Perhaps because I was not party to the debates over the meaning of the word "current", I do not see the difference between saying, as the clause does, that the court must have regard to,

"whether existing circumstances make a fair trial unlikely",

and saying whether,

"the circumstances existing at the time the court is considering the application",

make a fair trial unlikely. I am not sure that I see the difference at the moment. It may be that what the noble Baroness has in mind is that one should consider the two matters together so as to indicate that the court must also have regard to the future. She was right to anticipate that we would be concerned about imposing too great an obligation on the Court of Appeal to speculate as to what the position may be. But, having said that, in deciding whether existing circumstances make a fair trial unlikely, I would expect that the Court of Appeal would have regard to what the previous publicity, and the publicity at that date, had been by way of example.

In deciding at this time whether a fair trial would be unlikely, there is a degree of speculation inevitably involved in what the Court of Appeal is doing in the sense that it is saying today, "Do we think a fair trial tomorrow would be unlikely?" But we would be against imposing this duty of speculation in the way that the noble Baroness proposes.

Earl Russell: Does it make the distinction the noble Baroness is trying to make if a large body of material is in the hands of a newspaper and one has good reason to believe that the newspaper intends to publish that material as soon as the case comes to court, but not if it does not? Is that in fact a clear distinction between the two amendments?

Lord Goldsmith: The noble Earl may be right. That may be what the noble Baroness has in mind. Obviously she must speak for herself on that; I cannot.

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I must respond to the specific questions that the noble Baroness asked me. She asked me whether the trial court would retain the ability to consider whether a fair trial was possible, having regard to events which had occurred between the hearing in the Court of Appeal and the trial. Save to the extent that those had already been taken into account by the Court of Appeal, there is nothing in the Bill, as the noble Baroness says, to say that the retrial court does not retain its usual discretion to decide that a fair trial is not possible. Therefore, subsequent events would be, it seems to me, open to the subsequent court to consider.

The noble Baroness asked whether the second court could reach a different view on the same material from the view that the Court of Appeal had reached. I believe that the answer to that is no because once the Court of Appeal had reached a considered view that a fair trial was likely, notwithstanding things that had happened before, it would not be appropriate for the second court to reach a different view. Whether that is a matter of judicial self-restraint or whether it is implicit in the Act, I would need to consider, but I have done my best to answer the question.

Baroness Anelay of St Johns: I apologise for my momentary inattentiveness when the noble and learned Lord was trying to give me what was, indeed, a very helpful answer. However, I was being sounded out whether this was the appropriate time for proceedings to finish. As the noble and learned Lord might expect, I was rather relieved to find that the Government agreed that it was.

Lord Goldsmith: We believe that we have another five minutes. Perhaps we can deal with the next amendment, which does not look very long.

Baroness Anelay of St Johns: In that case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135D not moved.]

Clause 73 agreed to.

Clause 74 [Procedure and evidence]:

Baroness Anelay of St Johns moved Amendment No. 135E:

Page 48, line 29, after "served" insert "in person"

The noble Baroness said: This is another probing amendment. It relates to the service by the prosecution on the acquitted person of the notice of application to the Court of Appeal for a retrial. Clause 74(2) provides that the service must be effected within two days of the

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application being made. My amendment would simply require the service to be in person. I would welcome the Minister's comments on the circumstances in which service would normally be effected. I do not need to go into details of the problems about service, because the noble and learned Lord and I have had discussions on the matter on the Crime (International Co-operation) Bill. I would be grateful if he could explain what the implications would be here.

The service of such an application will inevitably be a testing experience for the recipient who, in these circumstances, should not be expecting it. Having been acquitted, they are hardly now likely to find the tap on the shoulder. Will the notice contain details about how the person can obtain legal advice? Will such a person be entitled to free legal assistance for the purposes of the application itself? Do the Government intend to specify a standard form of notice, or will its contents be left to the discretion of the prosecutor? I beg to move.

Lord Goldsmith: The amendment appears to require the prosecutor to serve in person on the suspect the notice of an application of the Court of Appeal to quash a suspect's acquittal. We do not see the need for that at all. We do not see the reasoning behind having a crown prosecutor in person serving a notice of application on the suspect. Of course, proper arrangements will be made by the courts for the service of such notices, but there is no need in our view to insert this provision into the Bill.

Baroness Anelay of St Johns: As the noble and learned Lord implied, it is not my intention that prosecutors should have in addition to their ordinarily busy lives the job of making the service. The amendment was to probe what the process will be for service. I will consider it further before Report. However, we are going into new realms, where service may occur many years after the original acquittal, so there could be some problems with regard to process in this case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 74 agreed to.

Clause 75 agreed to.

Lord Davies of Oldham: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at two minutes before seven o'clock.

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