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Lord Goldsmith moved Amendment No. 156:

Page 41, line 16, leave out "and"

The noble and learned Lord said: My Lords, Amendment No. 156 is consequential to Amendment No. 157, whose purpose is to ensure that the Director of Public Prosecutions must take into account the United Kingdom's obligations in relation to double jeopardy under the Treaty of European Union. The purpose of the amendment is to make it clear that the statutory provisions to reopen acquittals given in other EU member states will be compatible with the United Kingdom's obligations under the Treaty of European Union. The Director of Public Prosecutions will take into account those obligations when deciding whether to make an application to the Court of Appeal.

At present, we are in negotiation with our European Union partners to provide for mutual recognition of acquittals in the courts of other EU member states. Those negotiations continue but are aimed at preventing the reopening of cases for which there has already been an acquittal in another EU member state, except in exceptional circumstances. The amendment makes it clear that the DPP will have to consider any obligations that arise as an outcome of those negotiations, before making an application to the Court of Appeal. I beg to move.

On Question, amendment agreed to.

Lord Goldsmith moved Amendment No. 157:

Page 41, line 17, at end insert ", and

"( ) any trial pursuant to an order on the application would not be inconsistent with obligations of the United Kingdom under Article 31 or 34 of the Treaty on European Union relating to the principle of ne bis in idem."

On Question, amendment agreed to.

[Amendment No. 157A not moved.]

Clause 62 [Determination by Court of Appeal]:

[Amendment No. 157B not moved.]

Clause 63 [New and compelling evidence]:

Lord Thomas of Gresford moved Amendment No. 158:

Page 41, line 36, at end insert "scientific"

The noble Lord said: My Lords, we now move to the different topic of confining the nature of the new and compelling evidence that is to trigger the retrial of an acquitted person. In general, retrials are usually asked for on new evidence where the issue is identity. It is in

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those cases that, in recent years, more scientific methods have evolved that may indicate that the person acquitted was the perpetrator of the offence.

There are only two ways in which one can obtain compelling evidence: a confession or clear scientific evidence. One should also have regard to the problem of murder cases, on which, I suspect, despite the decision taken a moment ago, most of the clamour for retrials will take place. In murder cases identity is not the usual issue. I have seen the statistic: in about 10 per cent of cases identity is the issue in a murder trial. Normally the question is whether there is intent, provocation, self-defence and so forth. Those are the usual defences in murder trials. Identity rears its head only occasionally. The same goes for rape, which is another area when one might expect applications for retrial. The question is not consent—I cannot imagine that there would be fresh evidence that would go to the issue of consent in a rape trial that could make any difference. However, the issue is identity.

We have considered the two aspects of overwhelming evidence that would make a retrial of an acquitted person just against the background that we have discussed of the double jeopardy rule. We do not think that confessions are a sufficient ground, largely because, in my experience, confessions arise from the evidence of other prisoners in prison—cell confessions and confessions to people who have an interest to serve. That type of evidence, although it might be dealt with by the Court of Appeal in deciding whether to grant leave, is inherently unacceptable. So we think it right to confine the fresh evidence that goes essentially to issues of identity to scientific evidence such as DNA or new methods that may evolve. We have been familiar with fingerprints for many years, but identification from the iris of the eye is something that is new and coming into this field.

We believe that evidence of that nature is the only evidence capable of giving the Court of Appeal sufficient assurance that the likelihood of a conviction in a retrial makes it just for that retrial to take place.

Lord Renton: My Lords, before the noble Lord sits down, may I point out that there is no definition of "scientific" in this part of the Bill? Does he have a statutory definition of "scientific" in mind, because much must depend on how that word is defined?

Lord Thomas of Gresford: My Lords, before I get into the business of defining the word "scientific", it is important to establish the principle, which is the purpose of this amendment.

I note that I have not spoken to Amendment No. 159 which is grouped with this amendment. Again, we take the view that it is very important to prevent applications for a retrial coming before the court on evidence that was discoverable by,

"reasonable and diligent inquiry before or at the proceedings in which the person was acquitted".

One of the basic problems with the abolition of the double jeopardy rule is that it could lead to sloppy police investigation in the first place. The purpose of

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this amendment, grouped with the one to which I have already spoken, is to ensure that that does not happen. I beg to move.

Earl Russell: My Lords, I am delighted that my noble friend tabled this amendment. The noble and learned Lord the Attorney-General may remember that we had a very brief exchange on the subject of confessions last Thursday, in which I raised the case of Lawrence Clarkson the ranter who claimed to have slept with 365 women. The noble and learned Lord said that that was quite a different case from the other one that we discussed. One was an admission of crime and the other was sheer boastfulness. It may have escaped the noble and learned Lord's attention, but at the time Lawrence Clarkson spoke, adultery was actually a capital offence, so the distinction was a little less than the noble and learned Lord thought. Admittedly, it is a capital offence of which I believe only six known convictions have yet been discovered, but capital offence it was, so Clarkson took a risk.

On the word "scientific", the noble Lord, Lord Renton, raises a point, which, as always, demands thought. Over the centuries, "scientific" has changed its meaning fairly considerably. A great deal that appeared even to a man as clear-headed as Francis Bacon to be scientific would not appear to us to be so. A great deal of the literature on witchcraft was described at the time as scientific. I would have thought that this was something best left to evolve according to the wisdom of the common law at the time prevailing. Were we to attempt to define it in statute we would be attempting to ascribe in stone something that, I regret to say, has the viscosity of mud.

4.15 p.m.

Lord Clinton-Davis: My Lords, I speak to Amendment No. 158A in my name. The Bill as drafted is inordinately complex, as are the amendments. The question arises of whether my amendment has been overtaken by anything that the Government have produced. It may have been. In any event, what I am trying to do, which may not be sufficient, is to ensure that the evidence could have been adduced—it was there and it was possible for the evidence to be considered adduced. I cannot find any provision in the government amendments that effect that. However, I may be wrong. I am puzzled by the Government amendments in this regard, and I am trying to put the matter beyond any peradventure of doubt, which this amendment does.

Lord Carlisle of Bucklow: My Lords, I strongly support the amendment in the name of the noble Lord, Lord Clinton-Davis, and Amendment No. 159 in the name of my noble friend Lord Thomas of Gresford. Surely, when we talk about new and compelling evidence, we are talking about evidence that was not available at the time of trial. A person who goes before the Court of Appeal for a defendant and requests a retrial because of fresh evidence will be asked, "When was that evidence available to you?". I understand fresh evidence to mean—and I think it still does

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mean—evidence that was not readily available at the time of the trial. Equal matter should apply to new evidence under the prosecution's power to apply for a retrial.

Indeed, the Attorney-General himself has accepted that point. I made a note of what he said in answer to another amendment. On two separate occasions he said,

"if new and compelling evidence comes to light",

which clearly implies that new evidence comes to light after the trial has taken place. However, new evidence is defined in Clause 63(2). It states:

"Evidence is new if it was not adduced in the proceedings".

With respect, that is totally different from saying that it has come to light since the proceedings. Those of us who accept that the principle of double jeopardy should go and who support the Government's new list and the amendment to this Bill have done so on the basis that it is vital that there are proper and adequate safeguards before the power can be used. It is essential that one of them should be that the evidence that a party wishes to put before the jury should not be evidence that it could have put, had it chosen, before the jury at the earlier trial.

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