Clause 65 - New and compelling evidence
Criminal Justice Bill
9:10 am
Mr Dominic Grieve (Beaconsfield, Conservative)
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
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.