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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.
That is a clear test. One then comesand this is the way in which we have chosen to deal with itto the test in Clause 64, which makes the issue of whether the evidence is likely to have been adduced,
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 andI hope noble Lords agreethe 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 lightfor 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
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 effectI have made it clear that it is not identical in effectthere 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 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,
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.
"( ) 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."
Resolved in the negative, and amendment disagreed to accordingly.