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Lord Goldsmith: My Lords, there is a difference. Evidence which is "readily available" is one thing. Evidence which is not "readily available" may still be evidence which, with reasonable diligence, could have been adduced or, "reasonably have been adduced", in the words of the noble Lord, Lord Clinton-Davis. It may be said that it would have been reasonable to use super-human efforts to find it if it was not readily available. That is an indication of the difficulty to which that gives rise.

Clause 63 gives a clear statement as to what constitutes new and compelling evidence by defining it as evidence which,

That is a clear test. One then comes—and this is the way in which we have chosen to deal with it—to the test in Clause 64, which makes the issue of whether the evidence is likely to have been adduced,

    "but for a failure . . . to act with due diligence or expedition",

one of the factors to which the Court of Appeal must have regard.

4 Nov 2003 : Column 710

The Court of Appeal must have regard in deciding whether it is in the interests of justice for the court to make the order. That is obviously the overriding and—I hope noble Lords agree—the right test of what is in the interests of justice. The noble Lord, Lord Alexander of Weedon, asked whether that is precisely the same as the effect of the tests proposed in Amendments Nos. 158A and 159. It is not. He used the word "effective". In my view, it is a very effective clause, but it is not an absolute bar. It would be wrong to think that it is. The noble Viscount, Lord Bledisloe, was right to say that.

Therefore, it is a factor. I do not say that it is a minimal issue; I have no doubt that it will be an important issue for the Court of Appeal to take into account. But it would be open to the Court of Appeal to say, "Having looked at all the circumstances, including the failure to exercise due diligence"—which may be gross or slight—"and having regard to the overriding interests of justice, it still remains in the interests of justice for the retrial to take place". There is a difference, which provides a very important safeguard, so that there is no encouragement to lax investigation.

There will be examples of evidence which had been discovered but the relevance of which only recently came to light—for example, new testing techniques, such as DNA. The provision must allow for DNA testing to constitute "new" evidence, even when the police may have had the sample for many years. I believe that the noble Lord, Lord Carlisle, picked me up on the expression, "new evidence comes to light". Of course, when using the expression, "comes to light", it depends which room one is talking about in which the light is shining. If the light is the original court, it was not within that light. Therefore, one must look at whose judgment is being considered. In using that expression, I obviously was not moving in any way away from the definition given in the Bill.

However, there is one circumstance to which I shall draw attention. It was picked up by the Joint Committee on Human Rights and we have given thought to it. I would have to read Hansard to be quite clear, but probably it touches on the example given by the noble Viscount, Lord Bledisloe. The Joint Committee pointed out that there could be circumstances in which relevant evidence was in the possession of the prosecution at the original trial, but it was not adduced for tactical reasons. That is rather different from the case where the evidence might have been discovered by the police or, perhaps, its significance understood. I can give the House an undertaking, which I have agreed with the Director of Public Prosecutions, that where evidence was not adduced for tactical reasons, it would not be right to use it as a basis for an application under Part 9. I hope that that will give some comfort. It will be reflected in guidance.

As regards other evidence, which is "new" within the terms of Clause 63, and compelling, it should be seen by the Court of Appeal and taken into consideration in determining the interests of justice. For those reasons, I resist Amendment No. 158, which would unnecessarily limit the definition of evidence which

4 Nov 2003 : Column 711

could even qualify. For the reasons that I have given, I resist Amendments Nos. 158A and 159 because they would be too absolute a bar.

The noble Lord, Lord Clinton-Davis, asked whether his amendment had been overtaken by other amendments. I hope that he will at least understand why the Government take the view that although it is not identical in effect—I have made it clear that it is not identical in effect—there is important protection against his concerns about Clause 64.

Lord Thomas of Gresford: My Lords, I have taken into consideration the criticisms expressed by noble Lords and the noble and learned Lord the Attorney-General in relation to Amendment No. 158 and I do not propose to press it. However, the distinction to be made in regard to Amendments Nos. 158A and 159 is between whether a new trial can be sought on the basis of fresh evidence, or whether a new trial can be sought on the basis that a prosecutor or officer made a mistake or failed to act with due diligence.

At the moment, if anyone approached the Court of Appeal to ask for fresh evidence to be introduced on behalf of a defendant, and said, "I am sorry, someone in the solicitors' office made a mistake and that is why the evidence was not called at the trial", they would be given very short shrift. Leave to appeal would not be granted. What the Government are seeking here is to introduce what appears to be a lower standard in relation to the position of the prosecution.

Lord Goldsmith: My Lords, does the noble Lord agree that there are cases, such as those, for example, brought by the Criminal Cases Review Commission where, in the case of an appeal against conviction, the Court of Appeal is being asked to consider evidence which could have been put forward by the original team at trial? Indeed, incompetence on the part of the original team may itself form a ground of appeal.

Lord Thomas of Gresford: My Lords, that is true; the ground of appeal would be the incompetence of the defence team. However, the position to which I referred was an application to introduce fresh evidence in an appeal.

Lord Goldsmith: My Lords, I am sorry. The incompetence on the part of the defence team may be precisely because it failed to adduce important evidence which would have secured the acquittal.

Lord Thomas of Gresford: My Lords, it would require a little research to see whether that has ever been the case. I merely refer to fresh evidence which has to be evidence that was not, in the terms of Amendment No. 159,

    "discoverable by reasonable and diligent inquiry before or at the proceedings",

4 Nov 2003 : Column 712

in which a person was convicted. That is the position so far as concerns an appeal against conviction.

I beg leave to withdraw Amendment No. 158, but I give notice that, should the noble Lord, Lord Clinton-Davis, seek to press Amendment No. 158A, we shall support him. If not, we shall proceed with Amendment No. 159.

Amendment, by leave, withdrawn.

[Amendment No. 158A not moved.]

Lord Thomas of Gresford moved Amendment No. 159:

    Page 41, line 40, at end insert—

"( ) Subsection (2) does not apply to evidence which was discoverable by reasonable and diligent inquiry before or at the proceedings in which the person was acquitted."

The noble Lord said: My Lords, I beg to move.

4.42 p.m.

On Question, Whether the said amendment (No. 159) shall be agreed to?

Their Lordships divided: Contents, 88; Not-Contents, 188.

Division No. 2


Addington, L.
Alderdice, L.
Alexander of Weedon, L.
Alton of Liverpool, L.
Avebury, L. [Teller]
Barker, B.
Beaumont of Whitley, L.
Biffen, L.
Bledisloe, V.
Bradshaw, L.
Cameron of Lochbroom, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Chalfont, L.
Chorley, L.
Clement-Jones, L.
Cobbold, L.
Colville of Culross, V.
Dholakia, L.
Elton, L.
Falkland, V.
Fearn, L.
Goodhart, L.
Gray of Contin, L.
Hamwee, B.
Harris of Richmond, B.
Hereford, Bp.
Holme of Cheltenham, L.
Hurd of Westwell, L.
Hylton, L.
Jacobs, L.
Joffe, L.
Linklater of Butterstone, B.
Listowel, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E. [Teller]
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Park of Monmouth, B.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Rennard, L.
Renton, L.
Renton of Mount Harry, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Sandberg, L.
Scott of Needham Market, B.
Sharman, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Strange, B.
Taverne, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Wakeham, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Watson of Richmond, L.
Weatherill, L.
Wedderburn of Charlton, L.
Wigoder, L.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Worcester, Bp.


Ackner, L.
Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B. (Lord President)
Ampthill, L.
Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Ashcroft, L.
Ashley of Stoke, L.
Astor of Hever, L.
Attlee, E.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blatch, B.
Borrie, L.
Boston of Faversham, L.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Corbett of Castle Vale, L.
Cox, B.
Craig of Radley, L.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donaldson of Lymington, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Elliott of Morpeth, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ferrers, E.
Filkin, L.
Gale, B.
Gardner of Parkes, B.
Gavron, L.
Gibson of Market Rasen, B.
Glentoran, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Hanningfield, L.
Harrison, L.
Haskel, L.
Hayman, B.
Higgins, L.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hooper, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jenkin of Roding, L.
Jones, L.
King of West Bromwich, L.
Kingsland, L.
Kirkhill, L.
Knight of Collingtree, B.
Layard, L.
Lea of Crondall, L.
Levy, L.
Lindsay, E.
Lipsey, L.
Liverpool, E.
Lockwood, B.
Lofthouse of Pontefract, L.
Lyell, L.
McColl of Dulwich, L.
Macdonald of Tradeston, L.
MacGregor of Pulham Market, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Marsh, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Miller of Hendon, B.
Mitchell, L.
Montrose, D.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Moser, L.
Mowbray and Stourton, L.
Moynihan, L.
Nicol, B.
Noakes, B.
O'Cathain, B.
Palmer, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Pearson of Rannoch, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Powell of Bayswater, L.
Prys-Davies, L.
Radice, L.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Renfrew of Kaimsthorn, L.
Rogers of Riverside, L.
Rooker, L.
Rotherwick, L.
Ryder of Wensum, L.
Saatchi, L.
Sanderson of Bowden, L.
Sandwich, E.
Sawyer, L.
Scotland of Asthal, B.
Seccombe, B.
Selsdon, L.
Sharples, B.
Sheppard of Didgemere, L.
Simon, V.
Skelmersdale, L.
Smith of Leigh, L.
Soulsby of Swaffham Prior, L.
Stallard, L.
Stone of Blackheath, L.
Strathclyde, L.
Swinfen, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thomas of Gwydir, L.
Thornton, B.
Turnberg, L.
Turner of Camden, B.
Ullswater, V.
Vinson, L.
Vivian, L.
Waddington, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilcox, B.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4 Nov 2003 : Column 714

4.54 p.m.

[Amendment No. 159A not moved.]

Clause 64 [Interests of justice]:

[Amendment No. 159B not moved.]

Clause 65 [Procedure and evidence]:

[Amendment No. 159C not moved.]

Clause 66 [Appeals]:

[Amendment No. 159D not moved.]

Clause 67 [Restrictions on publication in the interests of justice]:

[Amendment No. 159E not moved.]

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