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Lord Goldsmith: The group—Amendments Nos. 135GC, 135GD, 135H, 135HA and 135HB and Clause 77 stand part—has three aspects to it. The first relates to what is to happen when an order is made by the Court of Appeal.

There would be two consequences of Amendment No. 135GD, tabled by the noble Lord, Lord Thomas of Gresford, and Amendment No. 135H, tabled by the noble Baroness, Lady Anelay, if they were accepted. First, they would prevent the court from issuing an indictment against more than one defendant if all the defendants listed on the indictment had not previously been tried for the offence. As the noble Baroness said, that would mean that, for example, if new and compelling evidence came to light that suggested another person as well as the original suspect was guilty of the crime, it would not be possible to try the two together.

One could envisage circumstances in which the evidence that had come to light indicated not only that the original defendant was guilty, but that he had a partner or accomplice—perhaps someone engaged in a joint enterprise with him—who was guilty of the offence. There would be enormous difficulties if one prevented the trial taking place with that other person involved as well. Of course, the other person has no double jeopardy complaint to make in relation to the matter, as he has not been charged with or tried for the offence before. To prevent the indictment from covering that other defendant seems wrong. It would prolong the retrial process and delay the opportunity to reach the outcome that justice demanded.

The other effect—bringing a different charge against the original defendant along with the charge for which the Court of Appeal's leave is needed—was particularly referred to by the noble Baroness. There could be circumstances in which evidence had come to light that, in addition to the original charge, the

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suspect was credibly believed to be guilty of some other offence as well, one that it would be appropriate to have tried at the same time. If it were an offence with which he had not been charged and was not an alternative verdict to the original offence of which he had been acquitted, there would again be no issue of double jeopardy because the person would not have been previously tried and acquitted of that offence.

I assure the Committee that we are not attempting to get round the requirement that, where there has been a qualifying offence of which there has been an acquittal, all the safeguards and requirements that apply to that need to be satisfied before that offence can be the subject of a further charge. The amendments would prevent it being possible to add another defendant who had not previously been tried, or another charge that had not previously been the subject of an acquittal and in relation to which the principle of autrefois acquit would not apply.

The second category was dealt with briefly by the noble Lord, Lord Thomas, in relation to his Amendments Nos. 135HA and 135HB. I shall take a moment to explain them, which I hope will help the Committee to see that there is no problem behind the provisions.

The present position under Schedule 2 to the Criminal Appeal Act 1968 is that a transcript of the evidence of a witness who testified at the original trial can be admitted as evidence in retrials, which can currently be ordered; for example, where the Court of Appeal has found that a conviction was unsafe. That is subject to whether the parties agree and whether the judge is satisfied that the witness is dead or unfit to give evidence; or that all reasonable attempts to find him and secure his attendance have been made without success.

Therefore, there is already provision in existing legislation on retrials for transcripts of evidence of witnesses who testified at the original trial to be admitted. Noble Lords will be aware that there are certain other circumstances where they can be admitted, such as where it can be shown that a witness, through fear, is not prepared to give evidence, having given a qualifying statement.

The provisions of Clause 109(2), which are referred to in subsection (6), are not put in quite the same terms, but they largely cover the existing area where transcripts on retrials may be allowed. I do not want to pre-empt the important debate that I know will take place on Part 11, which relates to hearsay. The consequences of that debate, whatever they are, will follow from that. However, the provisions to which the noble Lord referred do not introduce, in terms of evidence, material other than is referred to in subsection (6), which is certain hearsay evidence; that is, transcripts in those circumstances or in the circumstance identified in Clause 107(1)(d)—a further category. That is where the court is satisfied that despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible and the witness is for some other reason not available, subject to the requirement of the court.

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I am sure that the noble Lord would not wish to undermine the principles under which the courts can in certain circumstances use trial transcripts for a retrial. One consequence of his amendment would be that a trial transcript could not be used even if it pointed to the innocence of the accused. That relates to all circumstances in which transcripts are to be available. The existing law recognises that where there is to be a retrial, it is desirable to have available the evidence that was available at the first trial. It may help the accused; it may help the prosecution. That is what the provisions are designed to do.

There are of course safeguards in Part 11. We will come to those when that is debated, including in Clause 119 the safeguard that the court retains the residual discretion under Section 78 of PACE to exclude evidence in the interests of fairness. It also includes a duty under Clause 118 to stop a trial where a conviction would be unsafe, because the prosecution's case is based wholly or partly on unconvincing hearsay. We will come to all of that, I am sure, when we debate Part 11. At this stage, the principal issue is whether in certain circumstances it should be possible at the retrial to use transcripts of the evidence that was given at trial, as the existing law allows.

Amendment No. 135HB would delete Clause 77(7). This is a rather technical point and perhaps I may briefly draw your Lordships' attention to Clause 124, which updates the provision for the admission of transcripts and depositions in retrials that can currently be ordered by the Court of Appeal; for example, where a conviction is quashed because it is unsafe and a Court of Appeal orders a retrial. The provisions of Clause 124, as noble Lords will see, reflect precisely that in Clause 77(6).

It has long been a principle that witness depositions are not admissible as evidence at retrials if the witness gave evidence at the original trial. As Members of the Committee will know, in certain circumstances a deposition may be admissible at an original trial, but if the witness gave evidence at the trial, that evidence, rather than a deposition, would be admissible. It may be the only occasion on which the evidence has been tested—or certainly extensively tested—during the course of the trial by cross-examination. We intend simply to apply the same principle to retrial—that the deposition, which might otherwise be admissible, should not be admissible in place of the provisions relating to transcripts of evidence. I hope that that answer gives the noble Lord some comfort.

Finally, Clause 77 stand part appears in the group. We have previously debated at some length in Committee the objections in principle that have been raised to this part of the Bill. Clause 77 is critical to the double jeopardy provisions because without it the rest of that part does not work. I do not intend, on this occasion, to rehearse the arguments that have already been made in Committee. Maybe we will come back to the issue at a later stage, but that is not for me to say. To put our position on the principle of double jeopardy briefly, there has been a consensus for reform. The Lawrence report,

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the Law Commission, the Home Affairs Select Committee and Sir Robin Auld backed the reform in principle. It will apply only in the most serious cases—we have yet to debate what the final list of cases should be—and will be subject to important safeguards. It will apply only in exceptional circumstances. Those, in brief, are reasons in principle for supporting it. I give way to the noble Lord, Lord Renton.

5 p.m.

Lord Renton: I should have spoken sooner and before the noble and learned Lord rose. Perhaps I may make a few points now which I am sure are relevant to the Question whether Clause 77 stand part. In my opinion, it must stand part. We would be leaving a terrible void in the Bill if we did not have it or something like it. Between now and Report, I hope that the noble and learned Lord or the Minister responsible will consider some minor redrafting. In four subsections, (1), (3), (6) and (7), instead of referring to "retrial", the text refers to "trial". It must refer to "retrial" for the sake of clarity and to avoid confusion. Also, in subsection (4), reference is made to,

    "a bar to his being tried for the qualifying offence".

That must obviously read "retried". I hope that those simple drafting amendments will be made on Report.

There is a further matter that should delay any decision which your Lordships might wish to make about Clause 77. First, I refer to subsection (6)(a), where we find that,

    "Evidence given at a trial pursuant to an order under section 71(1) or (3) must be given orally if it was given orally at the original trial".

It then says,

    "unless . . . section 109 applies".

I believe that we must consider Section 109 very carefully and rather sceptically because it enables hearsay evidence to be produced which is not admissible at present. We must consider that controversial point very carefully as it would, of course, affect the meaning of Clause 77.

Secondly, I want to make one other point that arises from what the noble and learned Lord said. He referred very properly to the effect of Clause 124 on this clause. That is another matter which would affect the final composition of Clause 77.

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