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Lord Lloyd of Berwick: I am grateful to the noble and learned Lord for giving way. He was a little too quick for me at the beginning because I had intended to support both this amendment and the next substantive one. With the permission of the Committee I shall do so now. I was waiting to hear whether there would be any support for the amendment from the Liberal Democrat Benches, but that did not happen.

The Committee may remember that I do not oppose Part 10 of the Bill, root and branch, as do some noble Lords on these Benches. But I see a risk of great injustice in individual cases, especially if the power to order a retrial is to be exercised retrospectively under Clause 69(6)—for example, in respect of a committal before the Act comes into force.

I gave an example of a case of a man acquitted of a crime five or 10 years ago, before the Act comes into force. He then makes a clean breast of the issue in private to his wife. In my view—a view I expressed at the time—it would be quite wrong for such a person to be deprived of his existing—accrued—right not to be tried again by retrospective legislation. Surely, that should be axiomatic.

15 Sept 2003 : Column 702

When he came to reply on this point, the noble and learned Lord the Attorney-General did not, with great respect, deal with the issue very satisfactorily because he did not deal with it as a point of principle, which of course it is. Instead he was content to give an example from the other end of the spectrum—the Dunlop case. In that case—the Committee may remember—the man admitted within a few days of his acquittal that he had committed the perfect crime and bragged about it in a public house. The noble and learned Lord the Attorney-General said that he would not be able to look the mother of that victim in the face unless he could tell her that the Act would apply to her.

The contrast between the two cases—the case I put before the Committee and the one put before the Committee by the noble and learned Lord the Attorney-General—shows as clearly as anything could the need for these amendments. There will not be, as the Attorney-General accepts, many of these retrospective cases. Indeed, I doubt whether there will be many cases under these retrial proceedings altogether. But what surely is needed right at the outset is a means of distinguishing the cases where there is some merit—the example given by the noble and learned Lord—and the cases where there is no merit, the kind of case, for example, which I cited. That decision should be taken long before the case reaches the Court of Appeal and should be taken before ever the investigation under this clause starts, because the investigation itself in a case where there is no merit could cause grave injustice.

An ex parte application to the judge at the very start of the investigation seems the ideal way to achieve that objective—to distinguish at the outset between the cases where there is merit and those where there is none. I therefore hope that, although the Government have said that they will not, they will accept the amendment or at least reconsider it. It could not possibly do any harm; indeed, it could do nothing but good as it would take the initial and all-important decision from the hands of the Director of Public Prosecutions and place it in the hands of a Crown Court judge, where it belongs.

Lord Mayhew of Twysden: Perhaps I may seek similar indulgence, not having risen to speak at the right time. I support the effective amendment in this grouping of two, but for a slightly different reason from that principally advanced by my noble friend on the Front Bench. I do not think that there is any view in the country that the Director of Public Prosecutions is other than independent of the Government. We all know that he is by statute superintended by the Attorney-General, but that is by the Attorney-General acting in his judicial capacity, not in his capacity as a partisan member of the Government.

I support the amendment because I suggest that it is needed to provide a measure of protection for the director. He is head of the Crown Prosecution Service and one criterion that will have to be fulfilled if the process is to work is that the evidence that is sought to be adduced was not reasonably available to the CPS, the police or the prosecutor at the time. It is a measure

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of necessary—or at least desirable—protection for the DPP, who is to that extent slightly parti pris, that the process cannot proceed to the next stage unless it has the consent of a judge of the Crown Court obtained on an ex parte application. I suggest to the noble and learned Lord the Attorney-General that on that basis the amendment warrants acceptance.

Lord Goldsmith: I hope that I did pause and that the noble and learned Lord, Lord Lloyd of Berwick, missed the opportunity, but, given that both he and the noble and learned Lord, Lord Mayhew of Twysden, commented on it, I say simply that I shall not deal again with retrospection. I am sorry that the noble and learned Lord thinks that I did not deal with it satisfactorily; that may be simply because we take different views on the matter. If we return to it we shall have another opportunity.

I am grateful to the noble and learned Lord for confirming that, as he knows from his experience holding the office which I am privileged to hold now, the Director of Public Prosecutions is most certainly independent of government and can be trusted to make difficult decisions. That is the final point. The noble and learned Lord suggests that the director might welcome the protection of going to a Crown Court judge.

Well, the director and his senior staff have to take many difficult decisions all the time. They are frequently misunderstood, sometimes unpopular; it is the nature of the public prosecution service that they must make those difficult decisions, applying the evidence objectively, considering it impartially and deciding in accordance with the statutory tests of the Code for Crown Prosecutors. This case is no different.

5.45 p.m.

The Lord Bishop of Worcester: I am grateful to the noble and learned Lord the Attorney-General for giving way. I do not quite understand why the Government are reluctant to insert a judicial figure into the process, given that that would make clear that the Government regarded a decision to undertake a second investigation of an acquitted person as much more serious than one to undertake a prosecution of a person who has not yet been acquitted. The fact that the Director of Public Prosecutions is a person who can be trusted to make difficult decisions is not in question. What is in question is how we make clear, if the Bill is to be enacted, how much more seriously we regard a decision to re-open a case—it will be a serious case by dint of what the Government have in mind.

Lord Renton: Before the noble and learned Lord replies, it should be borne in mind that the amendment suggests that the leave of a judge of the Crown Court should be obtained on an ex parte application. That makes it very different from many judicial decisions, which must be made after hearing both sides.

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Lord Thomas of Gresford: Before the noble and learned Lord replies, the value of the provision—my initial reticence should not be taken as a sign that we do not support the amendment—is that it makes it absolutely essential for the director and the police to make their case without going to question the acquitted person once again, so that their case does not depend on a re-questioning of the acquitted person but that everything is in place before the DPP's consent is given. That is the value of it.

Lord Goldsmith: The amendment seems to have gathered much support in all parts of the Committee—except, I make clear, the Government Benches, where we remain resistant to it.

I answer the right reverend Prelate in this way: the provisions make very clear that this is a more serious business. In order to prosecute someone, even for a serious offence, one does not need a senior police officer—a commander or assistant chief constable—to decide that investigations can be opened; one does not need the Director of Public Prosecutions personally to decide whether the case should go ahead; one certainly does not need a Court of Appeal to decide that it is a proper case before an indictment can be lifted. There is more than enough in the Bill to illustrate how importantly the Government take the need for safeguards; the safeguards are there.

Baroness Anelay of St Johns: I am grateful to all Members of the Committee, who have brought different perspectives to what I thought was a fairly modest and straightforward amendment. As the debate gathered speed, I gathered education, but also resolve. In the development of a relaxation of a rule by which we are all entering new territory, no one can be thought to have experience. However good a DPP is, this will all be new for everyone taking part. This is one safeguard that we need at the beginning of the process. I intend to test the opinion of the Committee.

5.48 p.m.

On Question, Whether the said amendment (No. 136) shall be agreed to?

Their Lordships divided: Contents, 132; Not-Contents, 112.

Division No. 3


Ackner, L.
Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Biffen, L.
Blatch, B.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chalfont, L.
Clement-Jones, L.
Colwyn, L.
Cooke of Thorndon, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Erroll, E.
Fearn, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Goodhart, L.
Gray of Contin, L.
Greenway, L.
Griffiths of Fforestfach, L.
Harris of Richmond, B.
Hayhoe, L.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howe, E.
Hunt of Wirral, L.
Hylton, L.
Jacobs, L.
Jenkin of Roding, L.
Jopling, L.
Kennedy of The Shaws, B.
Kingsland, L.
Lane of Horsell, L.
Linklater of Butterstone, B.
Liverpool, E.
Lloyd of Berwick, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Mowbray and Stourton, L.
Moynihan, L.
Newby, L.
Newton of Braintree, L.
Northbrook, L.
Northesk, E.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Patel, L.
Pearson of Rannoch, L.
Peel, E.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Plumb, L.
Prior, L.
Roberts of Conwy, L.
Roper, L.
Rotherwick, L.
St. John of Bletso, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Smith of Clifton, L.
Stern, B.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tordoff, L.
Trumpington, B.
Tugendhat, L.
Ullswater, V.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Weatherill, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williams of Crosby, B.
Worcester, Bp.


Acton, L.
Ahmed, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Blood, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Islwyn, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Marsh, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morgan, L.
Morris of Aberavon, L.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Roll of Ipsden, L.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Strabolgi, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord President of the Council)
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

15 Sept 2003 : Column 706

5.58 p.m.

Baroness Anelay of St Johns moved Amendment No. 137:

    Page 52, line 23, at end insert ", and

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