|
Column Number: 435
Standing Committee B
Tuesday 21 January 2003
[Mr. Eric Illsley in the Chair]
Clause 64
Determination by Court of Appeal
Question proposed [16 January], That the clause stand part of the Bill.
9.10 am
Question again proposed.
The Parliamentary Under-Secretary of State for the Home Department (Hilary Benn): Having had the weekend to reflect on the point made by the hon. Member for Beaconsfield (Mr. Grieve), I think that it would be appropriate to debate the matters that he raised when we come to clause 72.
Question put and agreed to.
Clause 64 ordered to stand part of the Bill.
Clause 65
New and compelling evidence
Ian Lucas (Wrexham): I beg to move amendment No. 351, in
clause 65, page 40, line 5, leave out 'and compelling' and insert ', reliable and substantial'.
The Chairman: With this we may consider amendment No. 352, in
clause 65, page 40, line 9, leave out subsection (3).
Ian Lucas: Let me make it clear that I strongly support the proposal to give the Court of Appeal powers to reopen cases in which persuasive new evidence comes to light. I tabled the amendments because I have doubts about the wording that is used with regard to the process of determining which matters should come before the Court of Appeal. My concern is twofold. First, the threshold set out in subsections (1) to (3) is too high, and secondly, because of the wording, there is a danger that there will be a determination—or something close to a final determination—of any case that comes before the Court of Appeal before it has had the chance to go back before a jury to be considered in full.
A sifting process is already in place, through both the Director of Public Prosecutions and the Court of Appeal. The DPP will bring the matter before the Court of Appeal only when he has made a determination. The amendment would require new, reliable and persuasive evidence to be put before the court before the matter could be referred back for trial by jury. That seems to me to be the right approach.
I am concerned about the words
''highly probably that the person is guilty of the offence.''
If someone has been found by the Court of Appeal to be highly probably guilty, that creates difficulties for a jury that is aware of that finding in making its subsequent determination. There might be some resistance by the jury to the initial finding. I am
Column Number: 436
object not to the principle but to the wording. As I mentioned last week, the Court of Appeal can currently find a conviction unsafe and unsatisfactory and refer it back for a retrial. My objection is not to the principle but to the fact the clause as drafted is not helpful. My particular concern is that it is not clear that the clause provides for the defendant to be fully represented.
Clause 67(4) states that the defendant can be present at the hearing. I wish to hear more about what exactly that means. Does it mean that the defendant will be represented at the hearing and will have the right to make representations? I would be grateful to hear from the Minister on those concerns.
Mr. Dominic Grieve (Beaconsfield): I welcome the amendments, because the hon. Member for Wrexham (Ian Lucas) has gone to the heart of the issues that arise. If I do not entirely agree with him—although I shall be interested to hear what the Minister has to say about amendment No. 351—I have a great deal of sympathy with the points that he has made about amendment No. 352.
As we shall see later from the amendments that I and my hon. Friends have tabled, the wording of the clause—on the findings that the Court of Appeal must make—gives me exactly the same sense of unease as it gave the hon. Gentleman: namely, that a finding of high probability that the defendant is guilty of an offence appears to be a prejudgment of the decision that the jury must make at the retrial.
I also agree with the hon. Gentleman that, ultimately, the problem may be simply a matter of wording. I find it hard to believe—and I hope that the Minister will respond positively to our amendments later—that a form of words cannot be found that indicates the high test with which the Court of Appeal must be satisfied before it allows a retrial but that does not give the impression that the court has formed a view.
That is of more than academic interest, because although there will be reporting restrictions, it is likely that people who are aware that there has been an application for retrial will examine the statute to see what the test is that the Court of Appeal has to be satisfied with. We shall consider later whether we may be able to prevent the test from being reproduced, but if it is reproduced, the Court of Appeal will appear to be prejudging the issues that the jury must consider.
I would expect the Court of Appeal to make its decision on the basis of the strength of the prosecution case. The court will not have to consider what the defence may choose to present at trial for the jury to consider, except in so far as it may have received representations about the degree of unfairness that may apply to the defendant, in terms of defences that he may originally have wished to make, or matters that he may have wished to put before the court.
I find the wording unfortunate. We must be capable of doing something better with it. The clause appears to be a clear prejudgment of the issues that must be considered at retrial. I shall return to that in greater detail on my amendments, although I fully
Column Number: 437
acknowledge that the hon. Gentleman has been trying to tackle the same issue.
The hon. Gentleman raises an interesting point in amendment No. 351. What does ''compelling'' mean? ''Reliable and substantial'' may be a better test, especially as that appears to be the test to say that evidence is compelling in subsection (3), albeit that there it is taken with the words,
''when it is considered in the context of the outstanding issues, it is highly probable that the person is guilty of the offence.''
I would be unhappy about getting rid of subsection (3) entirely, as it provides an extra layer of protection for the defendant. Evidence should not only be reliable and substantial but should be taken in context. I would not want the context aspect to disappear. That said, I would prefer to retain the word ''compelling''—although there might be some better alternatives—and for subsection (3)(c) to be altered so as not to give the impression that the jury's decision has been pre-empted.
I am grateful to the hon. Gentleman, and pleased that the Committee has widely registered the fact that there are problems with the current wording.
Mr. James Clappison (Hertsmere): My hon. Friend is touching on the nub of the problem. On prejudging the jury's decision, does he think that the jury's view might be affected if it was widely known among potential jurors that the test under subsection (3)(c) had been applied to the case and had been passed?
Mr. Grieve: I agree entirely. We shall have to look at how the reporting restrictions will operate. Unless I have misunderstood the thrust of the legislation, I think that they will be far more complicated and difficult to operate than I had previously thought. In particular, there is an issue to do with the extent to which those restrictions apply in Scotland, on which the Minister might be able to reassure us.
It is not beyond the wit of jurors to become aware of the test by which the Court of Appeal sends a case for retrial. The plain meaning of the clause as currently drafted appears virtually to be an indication that conviction is inevitable. When we come to consider the word ''scientific'' we should be wary of an assumption that scientific or other evidence will be the clincher or provide foregone conclusions—juries should certainly avoid those—in such cases. I would assume that the basis for retrial is ''reliable and substantial'' evidence, as the hon. Member for Wrexham said, taken in context. We shall come on to what might be an alternative wording—I do not want to repeat myself later, so I shall hold fire on the matter. However, there must be some alternative phraseology that does not use the words
''highly probable that the person is guilty of the offence.''
The words ''might be guilty'' might be better than ''is guilty'', although I wait to hear from the Minister. This is not merely an exercise in words and semantics—we must get the clause right.
Mr. David Heath (Somerton and Frome): The Committee owes a debt of gratitude to the hon.
Column Number: 438
Member for Wrexham for the amendments. As the hon. Member for Beaconsfield said, they strike at the heart of the principal objection to the provisions. I speak as a member of the league of non-lawyers on the Committee—I think that we are a minority—and even I can see that the provisions raise serious questions about the conduct of a subsequent trial.
The great paradox is that the higher the test for a retrial to take place, the more hurdles the prosecution must jump to bring a case back and the stronger the indication to the jury that the defendant is guilty. Under the present arrangements, any juror who is aware of the process will know that the prosecutor has not only determined that the defendant is guilty but convinced the Director of Public Prosecutions—in person—that the evidence overwhelmingly suggests guilt.
That will be par for the course for most criminal trials, but there will also be the test applied by the Court of Appeal. Under the clause, the court will be asked to consider whether the evidence suggests that it is
''highly probable that the person is guilty of the offence.''
If the court holds that to be true, its decision is likely—even with the best will in the world and the best possible directions from the trial judge—to influence jurors before they have had a chance to hear the evidence. That will happen even if there is no reporting on the case, although, as we know, outside influences will be brought to bear on juries in such high-profile cases.
I have some sympathy with the view almost expressed by the hon. Member for Wrexham, and a formulation analogous to that for unsafe or unsatisfactory convictions might be a better way forward. As the Bill stands, the Court of Appeal may determine that there is a high probability that a person is guilty.
My objection to what the hon. Gentleman said is the same as that of the hon. Member for Beaconsfield. By rejigging the clause and introducing the phrase ''reliable and substantial'', he would, of course, remove the problem of the high probability of someone being guilty. However, he would also remove the context of the outstanding issues. Any evidence that is adduced may be reliable and substantial but have nothing to do with the terms under which the person was acquitted in the first instance. The problem with the hon. Gentleman's formulation is that the evidence might be irrelevant to the process.
We must get the Bill into a workable form that does not fatally prejudice proceedings, although, as we have heard, very few cases will be handled using this process, because of the difficulties involved. The worst outcome will be if we raise people's expectations that the system is capable of delivering a fair trial, only for them to find that it is not. We must ensure that the wording of the clause works against that outcome.
I hope that the Minister will give the matter a great deal of thought, and we have time to consider alternatives. I do not ask him to reduce the legal
Column Number: 439
hurdles needed for a retrial but to find a way of formulating the provisions so that they do not innately prejudice the jury that is called to hear the trial. Under the present terms of the Bill, however, they inevitably do so.
| 
