I beg to move amendment No. 303, in

clause 63, page 39, line 12, leave out 'quashing' and insert 'suspending'.

The clause provides a mechanism by which the application to the Court of Appeal is made. Subsection (1) says:

''A prosecutor may apply to the Court of Appeal for an order—(a) quashing a person's acquittal in England and Wales, and (b) ordering him to be retried for the qualifying offence.''

Given the plain meaning of what is intended, that has to be read in conjunction with clause 71, which sets out what happens if a retrial does not take place. Clause 71(2) states that the retrial must take place within two months of the date of the order, and if the person has to be arraigned, leave must be given to arraign him. He may apply to the Court of Appeal to set aside the order and

''for any direction required for restoring an earlier judgment and verdict of acquittal of the qualifying offence''.

I do not want to get involved in excessive semantics, but on the whole it is quite clear that it is expected that a person may normally be able to rely on his previous acquittal. If the acquittal is quashed, it is envisaged that the trial will take place and either a verdict of guilty or a fresh acquittal will be recorded. What happens if between the date that the original acquittal is quashed and the expected date of the retrial the defendant drops down dead? There appears to be no mechanism in the Bill to restore the original acquittal, because it says that he has to apply in order to have that set aside. It is a more than esoteric point, because we have had a number of cases recently in which people have gone to the Court of Appeal seeking to have various verdicts changed posthumously. It is a small point, but I should like the Minister to consider it.

There is a slightly wider issue, which is perhaps satisfactorily answered, although I am not completely happy about it. It concerns the need to go back to have

the original verdict brought back into force. In the absence of a trial within a set period, although we can return to look at clause 71, it is at least arguable that the original acquittal should be suspended only for the purpose of bringing a new trial. If a new trial is not brought, that original acquittal should stand without the person having to do very much at all to have it restored. The point that arose first in my mind when I read the clause was that there was no provision for the circumstances in which the defendant died, having had his earlier acquittal quashed. His relatives would argue that he ought to be entitled to rely on it.

I shall be extraordinarily brief. I am persuaded by the power of the argument of the hon. Member for Beaconsfield. It does not seem sensible to use a word that has a clear tone of finality, in the sense of quashing, instead of a word that means suspension, which is the more accurate reflection of what happens, while there is, presumably, still an assumption of innocence. I hope that the Minister will give an affirmative reply to the amendment or suggest an alternative wording that more accurately describes the circumstances of a person who has been acquitted during the period between the implementation of the procedure and any new trial.

It may be helpful if I say that we intend all the normal safeguards of criminal procedure to apply in full when a trial is conducted in accordance with the provisions of part 10, including the presumption of innocence as normal. I stress the words ''as normal'', because they mean no more and no less than that. The trials that we are considering are not different or special. They are ordinary trials being conducted as a result of special circumstances, for which the Bill makes provision.

I understand the hon. Gentleman's point, but it does not sit very easily with what I just said. It suggests some presumption of acquittal over and above the presumption of innocence, and I am not sure what a court would make of that. Clearly, we wish the trial to proceed in the usual way, on the evidence and without prejudice to the ultimate outcome, and that is one reason why the Government favour the formulation in the Bill.

However, there is another reason. I was asked whether there was any other provision in legislation for the quashing of an acquittal. The answer is, yes, in section 54(3) of the Criminal Procedure and Investigations Act 1996—I am a bit slower than my hon. and learned Friend the Member for Redcar—which makes provision for the quashing of tainted acquittals.

That is precisely the point. Such quashing would affect tainted acquittals, but in this case the original acquittal on which the person was entitled to rely is not tainted. There is a distinction.

I hear the hon. Gentleman's argument, but the Bill provides a mechanism for enabling the subsequent retrial to take place. A means of setting aside the previous acquittal is needed, and it must interrelate with the test that will be applied to decide whether retrial can occur. In due course, we shall turn to the argument about the nature of the test and how

high the barriers should be set. Different arguments have been advanced by Opposition Members on the question.

I understand the hon. Gentleman's point, but I am not persuaded that the amendment would provide a better mechanism. There are difficulties with the presumptions that would surround the term ''suspended acquittal'', and for that reason I resist the amendment.

I have listened carefully to the Minister. I do not wish to get too bogged down in what might appear to be an exercise in semantics, but an important point underlies the debate.

I am satisfied with the principles that the Minister has enunciated. Indeed, it is clear from clause 71 that the original acquittal would be quashed only for the purpose of allowing a further trial to take place. In the event that a further trial does not take place, it does not appear to me to be the legislation's purpose to say that the original acquittal must remain quashed, so the matter is unresolved. Otherwise, clause 71, with its provision allowing someone to apply to have the original acquittal reinstated, would not have been included. There is a big difference between being presumed innocent, having never been tried for an offence, and having conclusively determined innocence as the result of an acquittal. I think that a person is entitled to place reliance on the original acquittal if the matter is not resolved in the later trial.

That gives rise to the question whether the word ''quashed'' is right. Will the Minister go away and think about that again? Notwithstanding what he has just said, and although I fully understand the derivation of that word and why it was chosen, I think that we are doing something rather different here from quashing an acquittal on the basis of a trial being a nullity because it was tainted.

This may seem a small point, but what happens if a person falls down dead between one trial and the other, leaving any conclusion curiously up in the air? On the face of it, there seems to be no ready mechanism to enable his relatives to have the acquittal restored. We need to deal with that, perhaps calling it suspending, and explain in more precise terms who can apply to have the acquittal restored to the record.

I apologise for not addressing that point when I responded. It is a good question and I undertake to act on it.

I am grateful to the Minister. This is not an argument against retrial, but my own experience suggests that trial processes are very stressful. During the course of my career, I am afraid that it has happened that clients whom I was representing were not around to stand trial by the time of their trial date. It is not unusual to have to go to court and tell the judge that the trial cannot proceed because the defendant is dead.

With the assurance that the Minister has given, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 312, in

clause 63, page 39, line 20, at end insert 'in person'.

With this it will be convenient to discuss the following amendments:

No. 316, in

clause 72, page 44, line 28, at end insert

'in person and in writing'.

No. 324, in

clause 78, page 49, line 8, leave out subsections (2) and (3).

We are now considering the procedural provisions and the prosecutor's ability to apply to the Court of Appeal. Amendments Nos. 316 and 324 are consequential on the lead amendment.

As I may have mentioned earlier, almost two years ago today, Mr. David Calvert-Smith, as he then was, gave evidence to the Select Committee on Home Affairs. When asked how many cases he thought might result in retrials under the Law Commission's proposals, he said something to the effect that he would be astonished if it was more than a handful. I hope that the Minister will agree with me and hope that the number of cases that will be affected by the new proposals on double jeopardy will be very small in number. I am certain that he will agree that the process that has to be gone through before any such new trial happens is very important and involves significant issues.

Given the importance of the decision to allow an application to the Court of Appeal to seek the quashing of an acquittal, it is surely desirable that that decision is taken by the Director of Public Prosecutions in person rather than by someone from his or her department delegated to deal with the matter.

I do not know whether the hon. Gentleman derives any reassurance from clause 78, which seems to say that the DPP must make the decision and that the usual practice, whereby the Crown prosecutor makes it instead, is specifically excluded.

Clause 78(2) states:

''In the absence of the Director of Public Prosecutions, his functions under those provisions may be exercised by a person authorised by him.''

I seek to probe the Minister on the issue. I suspect that, like me, others on the Committee want to ensure that the DPP is personally involved in taking what is a very important decision. It is particularly important that he does so in person, given that only one application can be heard in respect of a single case. The imposition of a personal responsibility would also restrict the possibility of information being leaked to the press, which is a major danger in retrials following acquittal.

The Minister may be able to reassure me in any event, but our probing amendments would ensure that the DPP was personally responsible for making the decision, signing the documents and implementing the process. He should take personal responsibility, not least because relatively few cases will be involved and they will, by definition, be very important.

The amendment must be correct in principle. It must be for the DPP to make a decision in person about an application—it would not be appropriate for it to be devolved to a lower level of responsibility in the office—so we support the amendment.

On amendments Nos. 316 and 324, I have some sympathy with the view expressed by the hon. and learned Member for Redcar. Clause 78 qualifies clause 72 by stating at least implicitly that the provisions in clause 72 can be implemented only by the DPP or, in his absence, by a person specifically deputised by him. I take some comfort from that, but perhaps the Minister can assist us on clause 63, which is neither explicit nor implicit about the implementation of its provisions. Will he make it clear that the duty in the clause can be exercised only by the DPP or by someone at a very senior level in his department whom he has nominated. The issue is not covered by clause 78, and it would be helpful if the Minister could clarify what he expects the procedure to be.

As hon. Members have said, clause 78 already provides for the DPP to give his or her consent in person by disapplying the provisions of the Prosecution of Offences Act 1985 that would normally commit the DPP to delegate decisions to Crown prosecutors. It enables the DPP to nominate a specified person to take decisions on the relevant matters in his or her absence. That is to allow urgent decisions to be made in cases where the DPP is unavailable. He or she could be ill, on leave or absent for other very good reasons. It seems sensible to provide for such an absence by allowing someone who has been so authorised under clause 78 to take decisions. The clause is intended to cover what is likely to be a rare eventuality, and I do not dissent from the argument that has been advanced that we expect the DPP to deal with such matters personally but that it is sensible to make provisions for the tasks that the clauses give to the DPP if he or she is unavailable. One could conceive of such circumstances if the DPP suffered serious illness for some time, so we should not allow the procedures not to work for the want of what clause 78 provides.

I want clarification and information. In Northern Ireland, we have our own DPP and a formally appointed deputy DPP, who may make such decisions. Is it not the same in the rest of the United Kingdom?

The answer is no.

We are obviously more advanced.

I am sure that others will reflect on that argument.

The provisions exist for the reasons that I have outlined, and I hope that I have been able to offer reassurance to those who raised the point.

The Minister has offered reassurance to an extent, and I hope that he means that he does not expect the functions to be exercised by anyone other than the DPP except in rare circumstances. As he would accept, there is a huge difference between the DPP being frightfully busy or spending a week in

Liverpool and the DPP being on a fortnight's holiday 1,000 miles away. We can all recognise cases in which the provisions could be sensibly used. On the basis that the power will be exercised by the DPP whenever he or she is available, and by a designated person only in unusual circumstances—the Minister is nodding, so I will not ask him to respond again—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 263, in

clause 63, page 39, line 25, at end add

'and

(c) the defendant will receive a fair trial'.

The amendment concerns the criteria that the DPP has to consider before deciding whether to proceed with an application to the Court of Appeal. As subsection (4) stands, the director may give his consent only if

''there is evidence as respects which the requirements of section 65 appear to be met, and . . . it is in the public interest for the application to proceed.''

We need not consider clause 65 in detail now, but it concerns new and compelling evidence, rather than the interests of justice, which are covered in clause 66. The amendment is designed to introduce a further requirement that the defendant will receive a fair trial. The DPP should consider that requirement before making the application to the Court of Appeal.

To return to an earlier debate, one key issue about the fairness of a trail concerns the points that I made to the Minister on clause 62. I asked how the procedures of interview that took place originally with the defendant at the time of his arrest—perhaps 20 years ago, under different procedural rules—would be married with the fairness of a trial that took place today. On one level, that could all be left to the Court of Appeal to decide, but I find it slightly surprising that the DPP should not have to take those matters into account before deciding whether to try to prosecute again. They are so central to the ability to conduct retrials properly that the DPP will have to consider them, if only because he knows very well that they are likely to be the key issues that will feature in the defence at the Court of Appeal and to which he, or the counsel he has instructed, will have to reply.

The wording of the clause places quite a narrow test on the Director of Public Prosecutions: the test in subsection (4)(a) and (b). On that basis, the test of the fairness of such a procedure to the defendant, in the light of the circumstances of the case, does not arise. Say I am the DPP and there is a suggestion of a retrial. At some point counsel will be instructed to advise me. Imagine that counsel advises me that there is clearly evidence meeting the requirements of clause 65 and that it is plainly in the public interest to proceed. After all, this is a horrible murder that took place 25 years ago; it has been much commented on in the press and there has been public speculation about it. One has only to consider the procedural aspects of the case to realise that it would be extremely difficult for a fair trial to take place.

In those circumstances, the DPP, fulfilling his role as a prosecutor, which I was always taught includes being a minister of justice and not just being an adversarial figure who brings a question for the determination of the court, might be better to have the courage to say, ''We have looked into the matter very carefully, but we have been advised that a fair trial would be impossible. In the circumstances, no application will be made.'' It is worth remembering that the mere procedure of making an application will place a great deal of stress and anxiety on the person who is being targeted. The DPP should be in a position to take a view; it should not be left solely to the court. I would be interested to hear whether the Minister thinks that I am wrong.

The hon. Gentleman makes an interesting point, and I look forward to hearing the reply. I had read this very differently. I always assumed that the phraseology of subsection (4)(b)—the words ''public interest'' are used—included the interests of justice, which are public interests, so I assumed that it was broader rather than narrower, allowing not only the interests of justice but other public interests to sway the DPP.

I wait with interest to hear from the Minister on that point. He may be able to persuade me by referring to how the current public interest test operates. The Committee may or may not agree, but, for reasons that I have already given, I think that the ability to have a fair retrial will be central in almost every case. It will be central for reasons that are very different from those that exist in normal trial processes. There may be many cases in which it is perfectly possible to have a fair trial, but there will be a large number of cases in which it is not. Given the centrality of the issue, I wonder whether, in those circumstances, it might not be correct to identify that separately, unless the Minister can persuade me that the public interest test is so great, so wide and all-encompassing, that that is completely unnecessary.

Can the hon. Gentleman conceive of circumstances in which the Director of Public Prosecutions would consider it to be in the public interest to proceed with an application if he considered that there could not be a fair trial?

The issue is linked to clause 69. I anticipate the discussion on that clause, which I was pleased to see included in the legislation. Its inclusion appeared to come about after firm representations were made from a number of quarters. However, it did not seem to feature at the time that, along with the hon. Member for Southwark, North and Bermondsey, I went to see the Minister. We made the point to him and the clause was included, at which I was delighted.

It made a difference.

I am delighted to hear that. However, I am not sure what happens at the end of the procedure. Let us suppose that the court says that it does not think that the procedure should go ahead. In those circumstances, I assume that permission would be granted to report that an attempt had been made to allow a retrial but that the Court of Appeal had ruled that that was not possible. The public will become

aware at some point that the procedure has been embarked on, and seeing the extent to which, I am afraid, public pressure—and I do not mean this improperly—will have a substantial role in determining which cases are examined, it would be all too easy for the DPP to pass the buck to the Court of Appeal to avoid taking all the public flak. All institutions are human, and the CPS is no different. The DPP should have a duty to consider that key issue at the earliest opportunity. He should justify his decision rather than shrugging his shoulders and saying that it is up to the Court of Appeal.

Is there not an illogicality here? The DPP and, subsequently, the Court of Appeal will be asked to examine the evidence. They must conclude that the evidence is new and compelling. The definition given of compelling evidence is that it is

''highly probable that the person is guilty of the offence.''

On the one hand, the DPP must abide by that definition, but on the other—unfortunately, he does not have a deputy—he must put his hand on his heart and say that he can guarantee a fair trial. That is just not doable.

The hon. Lady makes a good point. It is perfectly possible to think of circumstances in which compelling evidence exists but a fair trial may be impossible. For example, evidence may come to light that the defendant's DNA is present at the scene. However, since the original trial, the defendant has suffered a head injury, which everybody accepts makes it difficult for him to recall events. As a result, he will be unable to explain how his DNA might innocently have been found at the scene.

That is a classic example of the kind of conundrum that might arise: compelling evidence exists that was not present at the previous trial, but since then the defendant has been put at a substantial disadvantage by something that is wholly unrelated to the offence and is not his fault. In those circumstances, the DPP should decide that the retrial cannot go ahead. However, it would be tempting for him to pass that buck to the Court of Appeal. The DPP must actively participate in the process.

The Minister may be able to reassure me that the amendment is not needed because of the public interest test, but we must bear it in mind that the media and the public will apply a great deal of—perfectly legitimate—pressure. They will want something done about the case. However, people who look at the clause will say that the defendant cannot receive a fair trial. If that is the case, the DPP must have the courage of his convictions. I want to ensure that that happens.

I confess to having some difficulties with the amendment. I signed up to it along with my hon. Friend the Member for Southwark, North and Bermondsey in a fit of enthusiasm—which I have sustained—for the concept of the defendant receiving a fair trial. As will be clear from my hon. Friend's comments, one of our principal concerns is whether it is possible to achieve a fair trial in the prevailing circumstances. We are concerned as far as possible to

increase the probability of a fair trial and reduce the probability of an unfair trial during proceedings under this part of the Bill. That led us to think it appropriate to support the amendment.

Having given the matter careful thought, and notwithstanding the comments of the hon. Member for Beaconsfield, I wonder whether it really is the job of the Director of Public Prosecutions to determine the positive in this instance—that a defendant will receive a fair trial. He is in a position to make an assessment that a person is not capable of receiving a fair trial. It would then clearly not be in the public interest to proceed with an application. It is more difficult to place a duty on the DPP to establish whether the prevailing circumstances are fit for the defendant to receive a fair trial. That is my difficulty with the amendment as it is worded.

First, I accept the hon. Gentleman's comment about the way in which the amendment is worded. I will not be pressing it to a vote. It is designed to flag up an anxiety, and if I have to return to it I shall word it differently, because ''will'' rather than ''could'' or ''would be able to'', suggests something slightly different. Secondly, I was simply suggesting that the DPP has to take such decisions at the moment, but the debate is not so focused because this issue does not normally feature in such a prominent way.

Yes, although there is merit in the same criteria applying to the DPP in determining whether to mount a prosecution or to allow an application to the Court of Appeal for a retrial. It is clearly for the Court of Appeal to determine whether a fair trial can be held. We will come to that exceedingly difficult matter in our discussions on later clauses. It is clear that it cannot and will not be in the public interest for an application to proceed if it is clear to the DPP that a fair trial is impossible in the prevailing circumstances.

The hon. Gentleman gave the example of a defendant who was not capable of testifying in his own defence because of circumstances occurring between the time of the offence and the time of the prosecution. The DPP would take that into account. That happens regularly in the normal course of prosecution.

There is a need for clarification, which I hope the Minister can provide. It should be made clear that the public interest is not served by an application—let alone a trial—proceeding in circumstances where it is clear or where the balance of probabilities is that the defendant would not receive a fair trial. That is something that the Minister can help us with. Although I do not support the amendment as it is worded, it has been helpful in stimulating this debate. I hope that it will encourage the Minister to give us a clearer view of how he expects this provision to work.

I agree with the hon. Gentleman. This is a helpful amendment because it gives me the opportunity to explain how the Government envisage issues relating to the possibility of a fair trial being considered under the relevant clauses.

In resisting the amendment, my essential argument is that it is not necessary. Clause 63 already requires the DPP to take into account the public interest

consideration. My hon. Friends the Members for Wellingborough and for Wrexham (Ian Lucas) were right to identify the fact that the likelihood of a fair trial would have to be part of the consideration given to the public interest. Indeed, if the DPP did not think that a fair trial would be possible, how would he be able to conclude that it would be in the public interest to proceed? The involvement of the DPP—a prosecuting authority, not a judicial one—is the first stage of protection against a risk of a trial that would not be fair.

The second stage is the Court of Appeal. That is why clause 66(2) makes specific provision for the Court of Appeal, in determining an application, to have regard to whether it is likely that a fair trial, pursuant to the order, would be possible. That is another clear protection. The third protection, should a retrial take place, rests as in any other trial with the trial judge. If at any point during the trial the judge were to decide that a fair trial was not possible, the trial could be terminated. There are three protections in the process.

I shall not have a good night's sleep this evening unless the Minister clarifies a certain point. The DPP will have to conclude, in the words of clause 65, that

''it is highly probable that the person is guilty of the offence.''

That would be the signal that the DPP would send. How can the Minister reconcile that provision with our human rights obligations under article 6.2 of the European convention on human rights, which states:

''Everyone charged with a criminal offence shall be presumed innocent until proved guilty''?

That is not a new problem for the DPP or the CPS. Every day of the week, prosecutors have, on one hand, to weigh up strong evidence—after all, that is the crucial consideration for them in applying the two normal tests of whether there is a more than a 50 per cent. chance of conviction and whether it is in the public interest to proceed. On the other hand, the public interest test allows other considerations to be admitted, such as the fairness of the trial, the time that has elapsed since the offence and the health or age of the offender. There may be overwhelming evidence that a person has committed an offence, but the CPS may, in the course of its normal work, decide that because of such a consideration it is not appropriate for the case to proceed.

Will the Minister kindly cite any other legislation in which it is stated that the DPP must take the view that

''it is highly probable that the person is guilty of the offence''?

Does any other legislation on the statute book contain such words?

I am advised that the consideration is one that applies in relation to the Court of Appeal. I must admit that I do not have the same difficulty that the hon. Lady does with the test that we are setting for the DPP. Clearly, we have recognised, because of the special nature of the provisions, that higher tests should be applied as a safeguard, but, as I pointed out,

every day of the week Crown prosecutors see evidence that suggests that it is highly probable that a person committed an offence. Crown prosecutors take such a view regularly. For that reason, I do not see the difficulty that the hon. Lady is so concerned about.

I shall ask two specific questions on the same line of inquiry. At present, the CPS and the DPP decide whether there is more than a 50 per cent. chance of conviction and whether it is in the public interest to proceed. They ask themselves if there is a more than 50 per cent. chance of someone being found guilty of the offence beyond reasonable doubt. First, what is the difference between that judgment and a ''highly probable'' judgment? My assessment is that ''highly probable'' is the higher judgment, and therefore the judgments are different. Secondly, is there a fourth test? Law Officers intervene when the DPP refers a case to them. Are there any circumstances in which the DPP's decision would be taken only after seeking advice from the Solicitor-General or the Attorney-General? The Solicitor-General may want to answer that question.

I will have to reflect on the hon. Gentleman's second question. In response to the first, he is right to identify the fact that the DPP is required to apply a different test but it is for that reason that these are very special circumstances. There is no conflict. In relation to the public interest test among other things the DPP will still have to consider whether there is the possibility of a fair trial. As to the point raised by this probing amendment, if I have not satisfied the hon. Member for North Down, I hope that I have satisfied the other hon. Members who spoke that the DPP will give consideration to the matter.

I am grateful for the Minister's assurances and mindful of what he said. I am mindful, too, of the other points made in the debate. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

I want to raise briefly a matter to which I shall probably return when we consider clause 64.

Under clause 63, the prosecutor can make his application to the Court of Appeal with the written consent of the Director of Public Prosecutions, who will have to weigh the information in his or her possession before reaching a conclusion. Will the Minister take us step by step through the practical happenings that would take place in such a situation? I have in mind whether there would be an opportunity for the defendant or his counsel to make representations to the DPP to be considered alongside those made to him by the prosecutor. I assume that the prosecutor will put a file before the DPP which, by definition, will be material that has not yet been challenged, or is not subject to questioning by any defendant or defence counsel. I wonder whether the DPP, before taking a decision, will in practice be obliged in principle to listen to representations made by the counsel for the defendant—if the person

exists—or some such person. I simply want to know whether the DPP is making an ex parte decision or one based not only on material from the prosecutor but on representations of any description from any other source.

My question a minute ago about advice from Law Officers may fall within this general context.

I have seen the representations from the Bar Council, but I am not sure that it is right, so I would be grateful for clarification. It says of paragraph 9:

''We note that the White Paper envisages one retrial only. However, we do note that there is no limit on the number of times that an application may be made to the Court of Appeal on the basis of 'fresh evidence'.''

I should be grateful to know whether that it is technically correct and that there can be only two trials but there could be more than two applications for a second trial. If that is the case and someone could keep coming back to knock on the door, I should be grateful for an explanation from the Minister. I may be wrong, but it is not my proposition.

My final question was raised in the same submission. It is interesting and worth raising. I understand that this may be a matter of procedure in the DPP's office and more widely, but has consideration been given referring a case that has had a trigger pressed for consideration for retrial to a different police force to carry out the investigation? I believe that when there is concern about the investigation of an internal police matter or a matter of high public importance giving rise to public controversy it is the tradition and common practice for the police service that had the initial responsibility to ask for another, independent force's judgment. Again, I am asking about this rather than arguing for it, but one way of increasing confidence in the process of a second investigation is to have an independent review of the evidence by a second police force that is entirely unconnected with the initial inquiry.

In respect of the hon. Gentleman's fear of repeat applications, I wonder why he is not satisfied with the wording of clause 63(5) which states:

''Not more than one application may be made under subsection (1) or (2) in relation to an acquittal.''

I had seen that, and the Bar Council must also have seen it. I asked the question because it suggested that that the criterion for a second application was fresh evidence, and I wondered whether there was some sort of slip rule that allowed a further application. I have read the provision and understand it.

I think that the hon. Gentleman will find that the Bar Council's submissions to the Committee are about the White Paper and matters have moved on since then. I think that that accounts for his being misled.

Unlike the Bar Council.

Quite right.

I invite the hon. Gentleman to look at clause 72(7) which allows the DPP to recommend what he suggested: that the investigation be carried out by a different police force.

I am grateful to the hon. and learned Lady. She may well be right. I asked for clarification only because I had been asked to do so. I understand the point that there is an option for the DPP. That is why I said that it is a matter of practice to seek an independent police force's judgment.

I want to make a brief point in the hope that I may allow the hon. Member for North Down a good night's sleep. It relates to the analogous case of a defendant who appeals against a conviction to the Court of Appeal, which finds that the conviction was unsafe and unsatisfactory and orders a retrial. In such circumstances, there would have been a determination of the charge faced by the defendant by a higher court. I submit that that would not prevent a jury at a later trial from having a completely open approach to the evidence presented. The same process would apply in relation to this clause.

I might now be able to answer the hon. Member for Southwark, North and Bermondsey by giving way to my right hon. and learned Friend the Solicitor-General.

Can my hon. Friend confirm my understanding of the position in regard to the request that was made by the hon. Member for Southwark, North and Bermondsey? Primary legislation can give powers either to the DPP or to the Attorney-General. If it gives powers to the DPP, the DPP exercises those powers independently, but under the superintendence of the Attorney-General, who is responsible to Parliament for the decisions, independently made under primary legislation, by the DPP. A power given to the DPP cannot be moved upstairs to the Attorney-General for a decision; it is the DPP's decision. The DPP will often discuss both general and specific issues with the Attorney-General, but the power and the responsibility remain with him or her. Is that not the case?

I am happy to confirm that in every particular. Who am I to disagree with a dot or comma of it?

What a double act.

Absolutely. I am very grateful. To answer the question about whether the defendant would have an opportunity to make representations to the DPP, it would not be the case any more than defendants have such an opportunity in other circumstances. However, specific provision is made for representations at the next stage in the process.

The point about repeated applications has been dealt with by my right hon. and learned Friend.

The hon. Member for Southwark, North and Bermondsey asked about investigations conducted by another police force. Clause 72(7) says that the DPP may recommend that the investigation be conducted by officers of another force. I hope that that offers him the reassurance that he seeks.

Question put and agreed to.

Clause 63 ordered to stand part of the Bill.