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Lord Ackner: My Lords, I was concerned, immediately I read the amendment tabled by the noble Lord, Lord Clinton-Davis, by a recollection that the matter was covered. Is it not covered by Clause 64, which deals specifically with the interests of justice? Clause 64(2) says:

Lord Carlisle of Bucklow: My Lords, I agree with the noble and learned Lord, Lord Ackner. The one reference is in Clause 64(2)(c). As he says, it states:

    "the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".

That is the only safeguard with regard to the word "new". It does not seem adequate merely to say that it is likely that it would have been adduced, if someone had not made a mistake.

In Clause 63(2), there is a clear statement of what "new" evidence is. It is evidence that,

    "was not adduced in the proceedings".

It ought to be made clear in the Bill that "new" evidence means fresh evidence, as it has always been known—namely, evidence that was not readily available to be used at the time by the party that now wishes to introduce it. Otherwise, the prosecution could, if someone has been acquitted, go to the Court of Appeal, apply for a re-trial and say that it wished to add new and compelling evidence that it had had at the time but the importance of which it had not realised until it had heard the defence.

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The definition is far too wide. I hope that either the noble Lord, Lord Clinton-Davis, or the noble Lord, Lord Thomas of Gresford, will push one or other of the amendments to a vote.

Lord Waddington: My Lords, will the noble and learned Lord the Attorney-General give us a little guidance? Let us imagine a trial in which it is expected that the prosecution will be able to call six eye-witnesses to the event that forms the foundation of the trial. When the trial takes place, none of the six witnesses turns up, and the prosecution strongly suspects that they are being kept out of the way by the defendant. Some time later, the six witnesses turn up, present themselves to the authorities and say, "We were kept away by the defendant. We saw the crime being committed".

In such a case, there would be overwhelming justification for a new trial, following an acquittal. That certainly is not scientific evidence.

Lord Thomas of Gresford: My Lords, is not that the position at the moment? Under current law, if a witness is kept away by a defendant and he is to blame, the Court of Appeal can order a re-trial.

Lord Alexander of Weedon: My Lords, I began by being attracted to the amendment tabled by the noble Lord, Lord Clinton-Davis, and to the way in which the argument was put by my noble friend Lord Carlisle of Bucklow. I still feel that I would have expected, at first sight, to find such a provision in Clause 63.

As the noble and learned Lord, Lord Ackner, pointed out, there is a not dissimilar provision in Clause 64(2). However, will the noble and learned Lord the Attorney-General say whether he regards the effect of Clause 64(2) as being as strong and effective as if the words suggested by the noble Lord, Lord Clinton-Davis, were inserted?

Viscount Bledisloe: My Lords, I would support the making of Amendment No. 158A or, failing that, Amendment No. 159 for the reasons given by the noble Lord, Lord Carlisle of Bucklow. For two reasons, I do not agree with the suggestion made by the noble and learned Lord, Lord Ackner, that the matter is covered by Clause 64(2)(c). First, Clause 64(2)(c) is only a factor to be taken into account in deciding where the interests of justice lie. The fact that the evidence was available could be overridden by the other factors, whereas, if we made the amendments that we are considering, there would be an absolute bar.

Secondly—it may be a technical point—Clause 64(2)(c) applies only if an officer or prosecutor fails to act with due diligence. What happens if an officer consciously decides not to call the evidence because it would throw some doubt on another side of his case? If he then loses and the man is acquitted, he might say, "I'll have another shot. This time, I will call that evidence, and I will run the risk". That is not covered.

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The words used by the noble Lord, Lord Clinton-Davis, are exactly the test that applies to the defence and, therefore, ought to apply to the prosecutor.

I am wholly against Amendment No. 158. The noble Lord, Lord Thomas of Gresford, said that there were two circumstances—a confession and scientific evidence. I would have thought that there was a third—namely, evidence emerging that the defendant had conspired to procure evidence to get him off. If six people come along—this is not quite the example given by the noble Lord, Lord Waddington—and say that they were induced into giving false evidence, that is such a circumstance.

The confession circumstance is more disquieting to the public. What happens if we have a man, such as—I think—Mr Haigh, who, after being acquitted of some murders, published a book saying that he had done them and, thus, made a lot of money? Surely, that calls for a re-trial. I agree with the noble Lord, Lord Thomas of Gresford, that, if a fellow prisoner says, "He confessed to me one night", that may not be compelling evidence. That is dealt with further down. If, however, the confession is obviously true, it would be extraordinary to have an undesirable new practice such that, if a man had made a lot of money by confessing a crime, he could not be re-tried because that was not scientific evidence.

Lord Goldsmith: My Lords, the amendments divide into two. The first, Amendment No. 158, deals with the sort of evidence that can get us to the starting block. As the noble Viscount, Lord Bledisloe, rightly said, getting to the starting block with new evidence is only part of the test. It must be compelling and, indeed, new; I shall come back to the definition of that.

With respect, I wholly disagree with the noble Lord, Lord Thomas of Gresford, that only scientific or confessional evidence could be covered. I do not see why it should be limited to scientific evidence. Many different sorts of new evidence could come forward, and some examples have been given in the debate. I need not go into the detail of those examples or enter into the debate, for example, between the noble Lords, Lord Thomas of Gresford and Lord Waddington. The fact that people may come forward who are able to give important evidence, which tends to show the commission of a crime, is certainly not beyond human knowledge. There may be the discovery of physical evidence—for example, a murder weapon or something of that kind. Therefore, it is not right to restrict it to those two categories.

I also strongly disagree with the statement that confession evidence may not be very important evidence on which one can rely. In Committee, I gave the example of an extremely disturbing case in which a man hid the young woman that he had killed behind a bath panel and subsequently boasted—not just in his cell, but to a number of people—that he had committed the murder. It would be enormously disquieting to public confidence should such matters not be taken into account.

I entirely agree that it is necessary to determine whether a particular confession is compelling. Of course, there are cases in which confession evidence is

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not, but that is the second stage of the test, and not the first. However, I would add that the noble Lord, Lord Renton, was right to ask what exactly is meant by "scientific" in this context. I therefore resist the amendment. As the noble Earl, Lord Russell, is not in his place, I shall not go into the variance between us about the differences between admitting adultery and admitting murder.

I turn now to Amendment No. 158A, proposed by my noble friend Lord Clinton-Davis, and Amendment No. 159, proposed by the noble Lord, Lord Thomas, which have similar effects. Amendment No. 159 would restrict the evidence that the Court of Appeal could consider. It would mean that evidence, which might somehow have been discovered before the original trial, could not be regarded as "new" within the meaning of Clause 63. Therefore, the evidence would have to be entirely excluded from consideration by the Court of Appeal, which would lead to protracted arguments about whether a particular piece of evidence could have been discovered, regardless of its weight or its merit.

I hope that I do not take an unfair point if I draw attention to the noble Lord, Lord Carlisle of Bucklow, who, in putting forward his eloquent observations, used a different formulation. He used the formulation of evidence which was readily available, which is not the same as the test proposed in Amendments Nos. 158A and 159. There could be quite a significant difference between them. I draw attention to that simply because it indicates the kind of issue that there may be.

4.30 p.m.

Lord Carlisle of Bucklow: My Lords, is there really all that much difference between "readily available" as against,

    "could not reasonably have been adduced"?

They both give a degree of discretion.

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