Amendment moved [this day]: No. 308, in

clause 65, page 40, line 17, leave out subsection (5).—[Mr. Grieve.]

I remind the Committee that with this we are discussing Amendment No. 379, in

Clause 65, page 40, line 18, after 'have', insert 'not'.

Having a meeting with constituents in the Lobby and getting to Committee on time nearly caused me problems, but I return to the matter of omitting subsection (5). The Minister will recall that I explained that I am in doubt as to its meaning, so it would be helpful if he explained what it is. My concern is that it would be possible, if I have understood correctly, for evidence to be admitted at a second trial that would not have been admissible at the first. For example, as a result of subsection (5), would evidence of bad character, whose admissibility we shall facilitate in a later part of the Bill, be admissible at a retrial even though it was not admissible at the first?

I remind the Minister of my previously expressed concern about the legitimate opportunities open to the defence to make choices based on the existing rules of evidence—for example, circumstances in which a defendant may have exercised the right to silence. That right has since been abrogated in its absolute sense, because it is possible to draw inferences from silence that it might not have been possible to draw when the offence was alleged to have been committed. The Committee should be aware that we might end up addressing problems of unfairness because the rules under which a retrial will take place differ from those for the original trial and investigation.

That is a discrete point, and I do not want to spend any more time on it as I should like to hear from the Minister why subsection (5) exists if not for that purpose, what its purpose is and whether we need it.

One could conceive of circumstances arising from the time when DNA evidence was in its early stages and regarded as inadmissible because it was not a sufficiently tried and tested method of science for determining identity. There would not be many such circumstances, but subsection (5) would apply to that one.

Will the Minister address the point that a person is entitled to a trial within a reasonable time? He said that when DNA was discovered almost 18 years ago, it may have been a little unreliable. Is he suggesting that that sort of evidence could now be used in retrials? Would such trials take place within a reasonable time under the European convention?

That evidence might be used, subject to the tests that we have discussed in relation to clauses 65 and 66. Science has moved on since DNA samples were first taken. Then, quite a blob of material was needed—I put it in a non-scientific way—to establish the required information, and that can now be done from a much smaller blob or piece of material. That does not stand in the way of the general thrust of the Clause, although I recognise the hon. Lady's concern and Opposition to the provisions, and nor do I think that it stands in the way of a fair trial. Clause 66(2) refers to the possibility of a fair trial and clause 66(2)(b) to the length of time involved. The Court of Appeal will have to weigh those things in the balance when it decides whether a retrial can be considered.

Admissibility is not an issue, because the court will have to decide whether any new evidence is compelling and indicative of guilt. It will not be concerned with whether the new evidence would have been admissible if it had been available at the original trial. That would have been a matter for the trial judge at the time, dealt with in the context of the trial as a whole. Here, however, the court will have to be concerned with the value of new evidence in the context of a potential retrial.

I understand the Minister's point. Indeed, as I look at the scope of the Clause and the fact that it relates specifically to the Court of Appeal's consideration, I can see the force of his argument. However, there would still be a problem if someone could say about a retrial, ''As well as the DNA evidence, we are in a position to put before the court the previous character of the defendant.'' Until now, that could not happen. Are we likely to see that happening in applications to the Court of Appeal? If so, the Committee should be aware of it.

Indeed, that could be a consideration, which would depend on the facts of the case and the nature of the evidence. The hon. Gentleman anticipates later clauses on bad character. However, in so far as it has clarified the matter, the Amendment has been helpful.

I wondered whether the Minister would introduce any argument or research to support his proposition. I skimmed through various papers to see whether anyone had addressed it specifically. The Home Affairs Committee did not appear to do so, and nor did the white paper. The Law Commission report No. 267, ''Double Jeopardy and Prosecution Appeals'', which predated that consideration, addresses the question indirectly. Recommendation 3 at paragraph 4.69 states:

''We recommend that

(1) the new exception should be available only where the court is satisfied that the new evidence

(a) appears to be reliable; and

(b) when viewed in context, appears at that stage to be compelling;

(2) the context in which the court views the new evidence for this purpose should comprise the issues that arose at trial, whether or not a matter of dispute between the prosecution and the defence''.

By implication, that means that the Law Commission did not envisage inclusion of matters that did not arise at trial, and issues that were excluded by virtue of the evidence would clearly not have arisen at the trial.

I share that concern, so I want to ask a neutral question about whether any work has been done to analyse what the provision will mean in practice. I have not seen any, and if no analysis has been made, the situation is more dangerous than it would be if the Government could confirm that the university of London or the institute of criminology at the university of Cambridge had considered the issue. I am not aware that the Government have ever put forward before the argument that we have heard today, and I have never seen any assessment of its implications or any expert advice on it.

We should resist taking such a dangerous and controversial course without knowing its implications. Does the Minister have any such information? If not, will he make inquiries to find out whether any research has been done and put any such information in the public domain, as the point seems to raise issues that have not previously been considered?

The hon. Gentleman may have hoped that the Minister would respond, but he has not sought to do so.

It is logically arguable that when the Court of Appeal considers whether evidence is reliable and substantial, it should do so on the basis of current tests of admissibility. As I listened to the Minister, I appreciated that the subsection was included to cover evidence, such as DNA evidence, that might not have been admissible 25 years ago because people did not know about it, but which should be admissible now that they do.

I had tabled another Amendment to add the word ''not'' after the word ''would'' in order to clarify what is otherwise a slightly opaque phrase. The Minister laughed during a previous sitting when I talked about ''calling a spade a spade.'' For the purposes of subsection (5), it is actually irrelevant whether any evidence would not have been admissible—rather than would have been admissible—in earlier proceedings to which the appeal relates. That is obvious when one reads the whole Clause.

My concern is that the provision could be applied not only to forensic scientific evidence but to a wider range of evidence under the new rules of admissibility. That would not be new evidence. It would be old evidence that could not be admitted in the past but could be now under new rules, such as the rules relating to bad character. The bad character of a defendant would have been known at the time of the original trial, just as it would be known when decisions about a retrial were being made. Whereas, in the past, it would have been regarded as an irrelevancy except if he were convicted, it might now be regarded as highly relevant and capable, with other factors, of being probative because inferences could be drawn from it.

That issue interests me in two ways. First, I am interested in whether the Court of Appeal could be

invited to take that evidence into account in deciding whether a retrial should take place. Secondly, I am interested in whether the evidence could be admitted at the retrial under the ordinary rules of court that operate at the time, which would be the rules of court of 2003, not the rules of court that applied when the offence was committed—in, for example, the 1970s. The Committee is entitled to clarification so that we may understand the impact of the subsection. I leave to one side for the moment whether it is right or wrong. I just want to know where we stand.

The hon. Gentleman is right. Any retrial would clearly have to take place under the current rules of evidence and procedure. There could not be a retrial in aspic under the rules that applied at the time of the original trial. In asking the Court of Appeal to consider its functions under the Clause, it cannot be right to ask it to second-guess what the ruling might have been on the earlier occasion.

That must be right. Of course, when it comes to the question of an inference to be drawn from silence at an interview, if the original interview under caution took place in 1975, I assume, applying the ordinary rules, that—although the law may since have changed so that an inference can be drawn—no inference could be drawn because the key issue would be what was said at the time that the caution was administered, and what that caution was. That highlights for me the practical difficulties that might arise, particularly in the case of retrials relating to investigations and first trials that took place a considerable time ago.

The Minister did not quite answer my second question, which went back to the specific Court of Appeal proceedings. For instance, a prosecution might seek to adduce reliable and substantial evidence by which it could be considered highly probable that a person was guilty of an offence. That evidence might comprise not only the fact that DNA can now be provided but the fact that it will now be possible to cite, in the course of the trial, the defendant's previous bad character and the fact that he had committed similar offences in the past, none of which would have been possible at the time of the first trial. Would it be legitimate to say to the Court of Appeal that it should take all that into account in deciding whether a retrial should take place? I think that the Court of Appeal will be in a position to do that. If I am wrong, it would be helpful to know that now.

I am happy to confirm that the circumstances that the hon. Gentleman describes could apply.

I am grateful to the Minister. That was the purpose of the Amendment. I do not intend, at this stage, to take the matter any further because, while I fully understand the logic of having the Clause to protect the new DNA evidence—otherwise the system would founder and be useless—this other aspect raises interesting questions. I have not seen anything to suggest that the professional bodies, never mind the public, have fully taken it into account. We may wish to revisit the matter on Report, or the Minister might

consider it further and provide clarification in writing—or otherwise—as to how he would expect the system to work. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 6.

Question accordingly agreed to.

Clause 65 ordered to stand part of the Bill.