Clause 66 - Interests of justice
Criminal Justice Bill
2:45 pm
Mr Dominic Grieve (Beaconsfield, Conservative)
The clause deals with the interests of justice test. Subsection (2) says:
''That question is to be determined having regard in particular to—
(a) whether it is likely that a fair trial pursuant to the order would be possible''.
The amendment would do two things. First, it would beef up the test and make it quite clear that no retrial should take place unless the court was satisfied that a fair trial would occur. Secondly, it provides the Committee an opportunity to consider subsection (2) and the test it contains. In that context amendment No. 309, which relates to subsection (2)(c), says:
''whether it is likely that the new evidence would have been available sooner''.
My preference is for whether the new evidence could have been available sooner. The distinction may seem narrow, but ''could'' implies the art of the possible, whereas ''would'' applies, it seems, a slightly different test. In the context in question, the stronger burden is placed on the prosecution by the word ''could''.