I beg to move amendment No.383, in

clause 72, page 44, line 33, at end insert

'and

(c) has sought leave from a judge of the Crown Court on an ex parte application.'.

With this it will be convenient to discuss amendment No. 384, in

clause 72, page 45, line 14, at end insert—

'(c) he has obtained leave from a judge of the Crown Court.'.

I ask the Committee to consider a much wider issue in relation to this amendment. An inevitable consequence of the procedure on which we are embarking is that an acquitted person can be subject to a reinvestigation. Many parts of the retrial for serious offences give me a sense of queasiness. The prospect of the re-arrest and reinvestigation, property search and all the other paraphernalia of an oppressive process—what would otherwise be a deeply unlawful act by the police—against a person who has the existing protection of an acquittal gives me the greatest sense of queasiness.

It is interesting that although the Government have chosen to provide, at the end of the process, the important safeguard of the Court of Appeal procedure to decide whether a retrial should take place, the decision to allow for reinvestigation, which, one can see from reading the text of clause 72, is not a matter to be taken lightly, is an administrative one. It is left to the discretion of the Director of Public Prosecutions alone.

I have great faith in the DPP, but he is the representative of the state and the public in bringing prosecutions. That is an important issue. Just as it has been the case—although that might not apply after this Bill is enacted—that the issuing of proceedings or the laying of information requires at least scrutiny by the judiciary, or a judicial figure, before it can be embarked upon, we should not allow such a procedure to be re-embarked upon without some form of judicial scrutiny being provided.

I do not want to raise the status of this procedure to that of a detailed investigation, because I do not think that that will be required. However, my strong view is that the Director of Public Prosecutions should seek the authorisation of a Crown court judge before deciding that an acquittal is not a bar to a trial and giving his written consent to an investigation. He could go, or send a representative, to the Crown court on an ex parte application to explain the case to the judge and outline the grounds on which the reinvestigation should take place. He could then secure the court's sanction for what would otherwise be a massive intrusion into the life of an individual who was entitled to the protection afforded by his acquittal.

I take a strong view on the issue and unless I get satisfaction from the Minister, I shall press the amendment to a vote—it is that important. The judiciary is there to protect the individual's interests against the state, should it ever use its power oppressively. I am sure that 99.99 per cent. of cases will involve a 45-minute hearing followed by the granting of consent. However, judicial consent should initiate the process.

Does the hon. Gentleman not think that the DPP's decision could be judicially reviewed? One could introduce a judicial sanction in that way.

Well, one could, but it is difficult to determine whether the process on which one is embarking is readily susceptible to judicial review. After all, once the DPP makes his decision, the police will presumably start scurrying around—sorry, that might be seen as a pejorative term and I did not mean it that way. The police will, however, be doing their investigations. That might prevent judicial review. It might also provide for a little judicial oversight.

Of course, it is a difficult decision. The DPP will be seized with a massive dossier and will be advised about the issue. None the less, the protection of having a Crown court authorise an investigation commends itself to me. I take the hon. and learned Lady's point that judicial review proceedings might be an option, but that raises difficult issues. For example, will everything be frozen during such proceedings? If so, one argument against them is that they might seriously impede the course of investigations, which will be carried out in the interests of justice. That could raise complicated issues. I was rather happier with the idea of subjecting the issue to judicial scrutiny, because one could then say that the investigation was taking place on the order of a Crown court judge.

We cannot escape the fact that the clause proposes a massive alteration to the basic principles that govern the grounds on which someone can be arrested and investigated. If other hon. Members think that the judicial review procedure is the better route, and the Minister says that it would be available, I will consider it. However, the amendment seemed to deal with the problem by removing the idea that it was for the DPP—the state—to initiate what could be seen as an oppressive procedure.

The amendment is important and reflects the constitutional balance to which the hon. Gentleman properly referred. It also has a practical implication. To put it neutrally, the decision to reopen a matter—or to trawl for evidence, to put it pejoratively—is in the hands of the independent judiciary, not the state or those who look after our law and order. It is important that we hold to those constitutional principles. When we debated the Terrorism Bill and the Anti-terrorism, Crime and Security Bill, I regularly argued that crucial decisions on intervention should be authorised by the judiciary. It seems to me to be a safeguard that would be in everyone's interests. I hope that the Government will see that it is in their interest too.

I do not have a great deal to add to what my hon. Friend the Member for Southwark, North and Bermondsey said, other than that I instinctively had sympathy with the amendment. Then, having thought it through, I wondered whether it would simply amount to an extension of process without any real new safeguard, given that both an assistant chief constable—or, in the case of the metropolis, a commander—and the Director of Public Prosecutions would be involved. As the hon. and learned Member for Redcar said, the actions of the DPP are subject to judicial review. However, that is a clumsy way of acquiring the imprimatur of the judiciary.

It is important that the prosecuting authorities, either the police or the DPP, should not be the sole arbiter of whether to proceed with what will inevitably be an intrusive process. Therefore, although in practical terms I expect that the amendments would have little effect, in principle and in constitutional terms some judicial scrutiny of the process is important. Therefore, I should be interested to know why the Minister appears to feel that the amendments are unnecessary.

We have rightly spent some time debating the various safeguards that the Bill contains, but I am not persuaded by the arguments advanced in support of the amendments.

The process set out in clause 72 is triggered by subsection (5), which covers the making of an application by an officer. He needs to be able to demonstrate that new evidence relevant to the application is available or known to him, or that he has reasonable grounds for believing that such new evidence is likely to become available or known to him, as a result of the investigation. The Director of Public Prosecutions is the appropriate person to take the decision at that point about whether to allow the police to reopen an investigation into an acquitted person. The DPP is qualified and experienced enough to take a decision at that stage in the process, bearing in mind all the subsequent safeguards that we have already debated.

Furthermore, clause 72(6) makes it clear that the DPP is not able to give consent unless he is satisfied, first, that the investigation is likely to produce

''sufficient new evidence to warrant the conduct of the investigation''

and, crucially, that

''it is the public interest for the investigation to proceed.''

Thus, the DPP is required by the clause to give very specific consideration to the public interest in deciding whether to allow the relevant powers to be exercised.

The Government consider that having the DPP take the decision provides a safeguard against the acquitted person being harassed by the police. I think that the hon. Member for Southwark, North and Bermondsey was the first person to comment in Committee on this issue, on which the hon. Member for Beaconsfield also touched; it is the reason why subsection (3) protects against any of the actions in question being taken either with or without the acquitted person's consent. That is intended to prevent the police from leaning on

the acquitted person to co-operate. Nothing mentioned in subsection (3) can be done without the consent of the DPP. At this stage of a re-investigation, it is proper for the decision to be taken by the prosecuting authorities rather than the courts. Involving a Crown court judge in the process would make it more cumbersome.

Finally, I am happy to confirm what my hon. and learned Friend the Member for Redcar, who is not in her place at present, mentioned in her intervention. The DPP's decision on the obligations under clause 72 would be judicially reviewable. In answer to the hon. Member for Beaconsfield, the investigation would be stayed while that judicial review was carried out.

The Minister's response gives rise to two interesting issues. If the investigation is judicially reviewable and stayed for the duration of the judicial review proceeding, that could be a serious handicap to the police in carrying out the re-investigation. It could enable the potential defendant to conceal evidence, for example. However, I understand the issue, and the provision may be a sufficient safeguard.

We did not have the chance in Committee to consider the charging provisions earlier in the Bill, because we ran out of time. I regretted that, because some of the changes brought about in the charging provisions removed judicial scrutiny and turned charging into a mere administrative activity, albeit one that must be carried out according to certain rules. I assume—it has only just occurred to me—that that activity is also judicially reviewable.

I would prefer a mechanism of judicial control, because I dislike the way in which we are departing from that principle. Under this provision, a state administrator—that is what the DPP is, however fair, good and robust his qualities—who is distinct and different from the judiciary, is able to authorise a procedure that would be a gross interference with a person's freedoms and rights. I wonder whether the inclusion of such a mechanism of judicial control might prevent quite a number of judicial review proceedings. I am therefore not persuaded by the Minister, and to set down a benchmark on the issue I intend to press the amendment to a vote.

Question put, That the amendment be made:–

The Committee divided: Ayes 8, Noes 14.

Question accordingly negatived.

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

I wonder whether the Minister can help me. All the provisions in the clause apply to an officer, which is defined in clause 80(1) as an officer ''of a police force''. Often, an investigating force other than a police force investigates many of the offences that come under the provisions. Such offences might be investigated by Her Majesty's Customs and Excise or by the security services. I am not clear how the clause will apply to officers of investigating forces other than police forces. The provision would be rather empty if it allowed for intrusive investigation on the part of officers other than police officers, whereas the only people prevented from doing so were police officers. What is the position with respect to other investigating forces subject to Home Office or Treasury control?

The hon. Member for Beaconsfield, no doubt in the interests of expedition, did not move amendments Nos. 317 or 318. However, they touch on two issues of principle. One is whether the Minister will look at the list in subsection (3). It strikes me that arresting or questioning not only the suspect but those associated with them triggers the same issues. That might be rather narrowly drawn and the point would apply to the rest of the list.

There is also a perfectly proper point that the provision is all about ensuring that the beginning of an investigation has an appropriate trigger. It would be ridiculous to create an artificial distinction between the most central parts of the investigation and the wider investigations. I hope that the principle—the objective—is for there to be an investigation authorised appropriately, whether with or without judicial authority. It will be with if we get our way, and we shall, I hope, persuade Ministers of that.

Irrespective of that point, however, I should be grateful if Ministers would consider whether the provisions are drawn widely enough, otherwise there might be indirect ways of starting an investigation that are not covered by the trigger mechanism that is intended.

I did not move amendments Nos. 317, 318 or 359, because on reflection I felt that the clause dealt with the matter adequately. Although the hon. Gentleman is right to say that the issues are legitimate matters for consideration, those amendments were not workable, because they touched on the operation of the relationship between the police and other individuals. He is right that the issue is legitimate. There are different ways of harassing somebody—indirectly through his family, for example. However, that would be unreasonable and unlawful in any event, even if such an investigation were not about to be embarked on.

There is an issue, but on balance my decision was not so much to do with shortening the Committee's proceedings but because of the fact that, having tabled the amendments and thought about them quite late at night, I felt in the cool light of day that they were

probably not necessary. I hope that the Minister can provide some reassurance of that.

If, in the course of his late night or early morning considerations, the hon. Gentleman has managed to reassure himself on his amendments, who am I to disagree with him? The argument that he advanced as to why the Bill provides sufficient protection is exactly where the Government are coming from on the matter.

In response to the hon. Member for Southwark, North and Bermondsey, the purpose of subsection (3) is to identify a small category—I accept that it is small—of investigatory activities that are sufficiently intrusive on the privacy of an acquitted individual to require the personal and written consent of the Director of Public Prosecutions before they are undertaken. There are already many safeguards relating to the exercise of those powers. However, the clause takes that extra step in the limited circumstances listed to provide a further layer of personal protection to the acquitted person. The Government think that that is the right list.

In relation to the point that the hon. Member for Somerton and Frome raised on Customs and Excise, we are aware of the issue, and I am grateful to him for highlighting it. We shall need to consider whether it is necessary to include Her Majesty's Customs and Excise investigators who might be responsible for investigating drugs offences in particular.

Question put and agreed to.

Clause 72 ordered to stand part of the Bill.

Sitting suspended.

On resuming—