I beg to move amendment No. 266, in

clause 66, page 40, line 29, leave out paragraph (a) and insert—

'(a) whether a fair trial pursuant to the order would occur;'.

With this it will be convenient to discuss amendment No. 332, in

clause 66, page 40, line 29, leave out 'it is likely that'.

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''.

I want to speak to amendment No. 332. It is also an attempt to make clear what we are talking about in this important clause, which will define the test to be used by the Court of Appeal. It is proposed that there be four considerations.

Amendment No. 332 is about the first of those. I am sympathetic to amendment No. 266. Amendment No. 332 would delete ''it is likely that'' from subsection (2)(a), so that the simple test should be whether a fair trial would be possible. Including ''it is likely that'' seems to give subsection (2)(a) a different meaning. If the meaning were not thereby different, including ''it is likely that'' would be tautologous, as it would be repetitious. No significantly different test is added.

Life is likely to be made more difficult for the Court of Appeal, as another question will be added that it has to consider answering. If the first condition is meant to be the ballpark condition of fairness and there are subsequent conditions to be added that are sufficiently important, it would be better to amend subsection (2)(a), as we suggest. It is none the less important to add something along the lines of amendment No. 314.

All Opposition members of the Committee have regularly raised the issue of media reporting. Whatever else we do not make explicit, we must be explicit on that. I would be grateful if the Minister would consider alternative formulations of words for subsection (2)(a); that is why the amendment is on the amendment paper.

We now come to the safeguards provided by clause 66 to ensure that an order of the Court of Appeal for a retrial is in the interests of justice. That is clearly set out in subsection (1). Clause 66 also includes a requirement that courts should consider whether a fair trial pursuant to an order for retrial would be possible. That would require the court to consider adverse publicity and its effect on a potential jury.

Amendment No. 266 would widen consideration to whether a fair trial would actually occur, and that is unnecessary and wrong. Part 10 seeks to strike a balance of fairness on whether a prosecution case should proceed to a reopened trial, and we are confident that this would be the case subject to the safeguards and the test set out in the Bill. However, the fairness of the trial itself is the responsibility of the court and the trial judge. If a trial can be fair, and that is the test that the Court of Appeal is being asked to consider in subsection (2), it is for the trial court to ensure that it is fair. That is not merely a semantic point.

There is a difficulty here. We must live in the real world. Trial judges have great powers; for example, they have the power to stop a trial completely if they think that it is unfair. In reality, they will be under pressure if the Court of Appeal has already pronounced, first, that it is in the public interest that there should be a retrial and has pronounced, secondly, on whether a retrial will be fair. However, there are some matters that the Court of Appeal will not be able to consider and which will remain the province of the Crown court judge.

I agree. Although the Court of Appeal will have considered the requirements placed on it by clause 66, that does not take away from the fact that the trial judge will have ultimate responsibility for

deciding whether a fair trial can take place. Nothing takes away from the trial judge his or her power to decide that a fair trial is not possible; nothing takes away from their power, to which the hon. Gentleman referred, to stop a trial.

Ultimately, we must trust trial judges to undertake their duties and responsibilities. For that reason, it is not helpful to put the Court of Appeal in the position that the trial judge may find himself or herself in at that point. It is sensible, having regard for all the arguments, that the test that we should ask the Court of Appeal to apply is whether it is likely that a fair trial, pursuant to the order, would be possible.

If I have achieved nothing else, at least I have ensured an entry in Hansard that can be waved around by defence counsel at future retrials to persuade the Crown court judge that the case should not proceed or that he should intervene. I am grateful to the Minister for that and for having it on the record.

I hope that before the hon. Gentleman presses or seeks to withdraw his amendment, the Minister will tell us his understanding of what exactly ''it is likely'' means.

I shall willingly give way to the Minister if he wishes me to do so. With your leave, Mr. Cran, if he wishes to speak further or reply, I shall sit down and ask for leave to say a couple of words after. However, I see no sign that the Minister wishes to avail himself of that opportunity.

For the sake of clarity, I hope that I did address that point in the remarks that I have just made.

The Minister certainly touched on the point, although he may not have satisfied the hon. Member for Southwark, North and Bermondsey (Simon Hughes).

The Minister has not satisfied me either. He adjusted his ground while he was speaking. He started off by saying that it would be a matter for the Court of Appeal to decide whether a fair trial was possible, only to end up saying that it would be a matter for it to decide whether it ''was likely'' that a fair trail was possible. He has skirted around the compound element of a probability linked to a possibility, which is the point that my hon. Friend made when he spoke to amendment No. 332.

The hon. Gentleman makes a good point, and that is the issue that we were trying to beef up. I prefer my wording, so I shall push the amendment to a vote. The Bill would be improved by its inclusion, and it would not be damaged in any way, even from the Minister's intention, by changing it.

Question put, That the amendment be made:–

The Committee divided: Ayes 6, Noes 12.

Question accordingly negatived.

I beg to move amendment No. 309, in

clause 66, page 40, line 33, leave out 'would' and insert 'could'.

I apologise, Mr. Cran, for referring to amendment No. 309 on the previous group of amendments. I erroneously believed that it had been grouped with them. To recap, I wish to replace ''would'' with ''could'', because I believe ''could'' to be better.

I do not think that to change the wording from ''would'' to ''could'' would help, because subsection(2)(c) asks the court to consider how likely it is that there has been a failure of due diligence and whether, if there was one, it would have made the evidence available sooner. My problem with ''could'' is that it takes us more in the direction of speculation, and I am not sure that that helps the Court of Appeal to undertake its functions. The court must look at the likely impact of any failure of due diligence, and that is what the Bill provides for. For those reasons, I prefer the formulation ''would''.

I want to make the same plea. The difference is narrow, but I marginally prefer the amendment to the original. I know that we went through a great deal of pre-publication consultation, but it would be helpful if the Minister could tell us whether anyone made submissions or commented on these matters. In the interests of open government, I hope that if any information has come the Government's way that we have not been given, he will ensure that we receive it, or that it is placed in the Library. I appreciate that hon. Members sometimes turn their minds to the issues only when they see the amendments and ask themselves the questions prompted by them. I have not thought through all the consequences, but we prefer the amended to the original version.

I hate to disappoint the hon. Gentleman, but I have a horrible feeling that this may not have been the sort of textual examination of clauses that was anticipated. My textual examination often takes place late at night and I substitute my own personal preferences for those of the Minister and his team. Having flagged up the matter, I am happy to leave it to their Lordships' House to determine whether the text should be altered. I am concerned to make the test as strong as possible, which is a real point rather than an exercise in semantics. Having said that, the difference between the two provisions is not sufficient to warrant dividing the Committee, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 314, in

clause 66, page 40, line 39, at end insert—

'(e) the potential impact of any publicity concerning the original proceedings'.

This is a rather more fundamental amendment. Should we spell out explicitly the concerns of Parliament—already expressed on all sides—about the potential impact of publicity on the ability to have a fair retrial? One would expect the clause to deal with that as part of the general submissions that the Court of Appeal has to examine. It is a crucial issue because a major problem with re-litigation of a criminal case is that much publicity will already have been generated. It is particularly problematic when the retrial is taking place not 20 or 25 years later, but only six or eight months after the event.

New evidence might well come to light in a serious case when an acquittal was followed by a huge amount of press comment about the original proceedings. The prosecution might have said that the evidence was so reliable and substantial as to make it highly probable that the person was guilty—or whatever it reads after the Minister has redrafted clause 65—and the public will have been very much alive to the case and to the publicity surrounding it. I am not asking for a prohibition on a retrial, but it should be built into the Bill that the new evidence is serious enough to merit independent consideration by the Court of Appeal.

Is not the problem with the amendment that it narrows the potential discretion of the Court of Appeal? What would happen if the adverse publicity related not to the original proceedings but to the new evidence? It would not be caught by the provision and it could prevent the Court of Appeal from taking the new evidence into account.

I take the hon. Gentleman's point, but I am not persuaded. Subsection (2)(a) already provides for a wide range of considerations to be taken into account, as it prescribes having regard to

''whether it is likely that a fair trial pursuant to the order would be possible''.

Publicity surrounding something other than the previous trial would be caught by that provision.

I acknowledged at the outset that the amendment is, to some extent, an additional element to subsection (2)(a). It has legitimately been argued that it is covered by that provision, but I contend that the issue is so important that Parliament should have the right to identify it separately, which is frequently done in legislation. When we considered the Proceeds of Crime Bill, we highlighted concerns on a number of occasions and included them in a list that otherwise would not have dealt with them. I see no problem or downside. The court would simply have to give separate consideration and state it openly when the time came to make its decision. From that point of view, the measure would be an extra protection.

This is an extremely serious matter. We as a Committee in Parliament, and all those interested in justice, should be troubled by the current state of affairs. The hon. Member for Beaconsfield

(Mr. Grieve) was right to say that the issue had recurred periodically in our deliberations on double jeopardy. There are several matters that the Government have not yet addressed, although I appreciate that we shall come later to clauses that deal with restrictions on reporting and to a particular clause that creates offences in connection with reporting and that establishes provision for fining journalists, editors, newspapers and so on.

The comments that I have heard came from the Attorney-General, rather than the Solicitor-General, but the Law Officers have made it clear that they keep these matters under close scrutiny. I may be wrong, but I think that the current Attorney-General has taken action on two occasions—certainly one occasion was well publicised—to warn the press, to the extent of legal proceedings, when he believed that they were behaving improperly in anticipating potential trials or verdicts, including findings of guilt.

In that context, it would be helpful if one or other Minister could confirm for the record, either now or later, on how many occasions in this Parliament and the previous Parliament—because there was also a Labour Administration then—the Attorney-General has taken legal action against any publisher in relation to any proceedings and the reporting of them. That relates not to retrials, but to first trials, or a trial in a first series of trials. On how many other occasions have the Attorney-General or Solicitor-General given general or specific warnings to the press?

One reason why I am concerned is that, in a society with a free press, it is very difficult to undo the damage that is done, even if there can be legal proceedings after the event. The reality is that, once a paper has printed a front page with pictures of people who it says are guilty, or once a trial has been reported and is hugely in the public domain, it is too late to eliminate that from people's minds.

Again, I remember from the Lawrence case that one national newspaper printed on the front page pictures of what it called the guilty men. I do not believe that it is possible after the event to punish a very large organisation—in that case, a national newspaper that is owned by a much larger company with significant assets—so effectively that it undoes the potential injustice of what has been done. Even if a significant fine was imposed or the editor was taken to court, found guilty of contempt and sent to prison, that would not undo what had been done, because it would be after the event. In this respect, the law is at risk of not being able to compensate for the adverse effects of such publicity.

Let me add to the hon. Gentleman's point a reference to an interview that Sir William Macpherson gave to The Spectator, which was reported in The Guardian on Thursday 1 August 2002. Sir William was the former High Court judge who conducted the official inquiry into the murder of Stephen Lawrence. I was particularly struck by the report of that interview. Although Sir William supported the change to the double jeopardy rule, he is reported as having said that if new and compelling evidence came to light in the Lawrence case, the Court of Appeal would have to consider whether it was

possible for the suspects to get a fair trial a second time around after the Daily Mail had printed their pictures and branded them murderers.

The hon. Lady rightly adds a very clear reminder from the person who was closest to the issue subsequent to the inquiry and who put that question in the public domain.

There is a danger here of two-tier justice. Famous trials will get publicity in a way that makes it much less likely that there will be a fair retrial, whereas the less famous trials may not receive so much publicity and a fair retrial might be more possible. That is wrong. If Mr. Grobbelaar, Mr. Bowyer or Mr. Woodgate, or anybody else—Mr. Beckham, for the sake of argument—were to appear in court, that case, like other footballers' cases, would be all over the papers. Famous people are entitled to the same rights—but no lesser or greater rights—as somebody of whom no more than a handful of people have ever heard. I worry that it will not be possible to achieve that equity of treatment. Some cases attract wall-to-wall coverage in the media and others do not. I should be grateful if the Minister would address that concern.

The Law Commission recommended two types of case to be subject to double jeopardy exemption: murder and genocide. There is now a list of 29 or 30 qualifying offences, two of which, robbery and wounding, are, by any definition, lesser offences. The Minister told us the other day that out of some 3,000 cases of wounding last year, there were 2,000-odd convictions. That leaves more than 1,000 acquittals—more than 1,000 cases per year in just one of the types of case that would be able to come back to court. Those cases, which are run of the mill in every Crown court, would be unlikely to be prevented from being retried because they would not have been widely reported: there is less press interest in them—unless they involve somebody famous—than there is in serious cases.

I am also concerned about the location of trials. I assume that it is always within the power of the administration of the court system to determine where a retrial is to be, so a case that, for the sake of argument, has been famous in the north-east, could be retried in the south-west in order to ensure that there is a better chance that the jurors were not aware of what had happened before. That again involves a different type of treatment in certain cases, whereas the criminal justice system is supposed to provide parity of treatment for everybody.

Originally, people were tried by their peers and all the people on juries knew the defendant. Now, the jurors are not meant to know the defendant, so there has been a slight change. If a case that had originally been tried in Newcastle Crown court were to be tried in Bristol or Exeter Crown court, the jurors would automatically wonder why they were dealing with it. Thus, in practice, relocation would be only a partial remedy and would not prevent jurors from asking

themselves why they were trying the case, and possibly concluding that it was a retrial.

How do we prevent a jury dealing with a serious case from working out that the case has been around the circuit before? Whatever we do to the final wording of clauses 65 and 66, if Parliament agrees that the Court of Appeal can determine on application whether in some circumstances there should be an exemption from double jeopardy and the case can be reopened, does the Minister accept that we could not protect the second jury from knowing that fact? The jury may happen to know in some cases, but it is arbitrary: some will know, some will not. That will give rise to prejudice, however well the jury is directed at the beginning of the second trial. The judge can say until he is blue in the face that the jury must presume that the defendant is innocent until proven guilty, but a jury that knows from all the publicity surrounding the case that it is being retried because of new evidence will bear that in mind, even when making finely tuned judgments and balancing the evidence.

I am following the hon. Gentleman's arguments with great interest. If clause 65 is redrafted, will such a defendant in a retrial be in a worse position than a defendant who has already been convicted but for whom the Court of Appeal has ordered a retrial, assuming that publicity surrounded the case when it was tried for the first time?

I do not know. I will think about that. It would be interesting to know the statistics for the number of verdicts that the Court of Appeal quashes and the number of retrials that it orders. I suppose that the numbers are very small. I have not read any academic research, although I imagine that papers have been written on the subject. It is the sort of issue that law reviews would have examined. The difference may lie in the likely mindset of jurors who know that a conviction was quashed, which may give rise to the presumption that something was wrong in the previous trial. The quashing of an acquittal may give rise to the presumption of guilt.

I suspect that the public sometimes think that convictions are quashed on technicalities and that judges intervene in trials where jurors, like them, passed a verdict of not guilty. There is therefore an opposing argument.

That is true. Sometimes when trials are discontinued and the judge orders a verdict of not guilty, the jurors go away bemused because they were sure that the defendant was guilty and because it was clear that only a technical, legal argument prevented the defendant from being found so.

Have the Government consulted other Departments or the Law Officers? I include consideration that the Department for Culture, Media and Sport might have given to the issue, as it clearly has an interest. Has there been any deliberation with colleagues in Scotland that might seek to address the media frenzy that now surrounds cases that are seen by the courts as being causes célèbres.

There were famous trials a hundred years ago. Indeed, Edgar Lustgarten made a living retelling trials that were extremely famous in their day. The

difference between then and now is that there was no wall-to-wall coverage. There was no television, and earlier on there was no radio. There were fewer papers and fewer readers. Although there were famous trials in the general sense, there was nothing like the current dissemination of information. I hope that the Government have thought about whether further steps can or need to be taken to ensure that if we go down this road there is even the beginning of a chance of a fair trial for many of the people who come to be retried. This is probably the most serious consideration in getting a fair trial other than the issues relating to previous convictions, which we will come to later. I hope that we can find our way to the best solution, whatever position we start from.

My hon. Friend the Minister will respond to the hon. Gentleman's amendments, but perhaps I could tell him now that the legal secretariat to the Law Officers is collating information about contempt cases that the Attorney-General has issued and warnings that he has given. Perhaps I can write to the hon. Gentleman and send copies to members of the Committee. I do not know how far back we will go. Although we can go back beyond 1997, because the Law Officers' Department is the one Department where the shutters do not come down with a change of Government, it may be difficult to retrieve the information. We will go back as far as we can, and I will let him have the information as soon as possible.

That is extremely helpful. I am grateful. Perhaps the Solicitor-General might be able later to add to the Minister's comments and tell us whether work has been done or is planned to consider whether the current remedy is sufficient. Are there any discussions either across Departments or between England and Wales and Scotland about that? It is no good having a remedy that is only for England and Wales if publication happens in Scotland or Northern Ireland.

This is one of those issues that are affected by global communication. That was highlighted by Sunday's little episode and the question whether the papers in Britain could publish stories about German politicians because of the limited controls that can be exercised from one country over the press in another. There are none the less real issues here. I hope that the Committee will accept that this is a matter of serious concern. I also hope that the Minister can help us by answering some of the questions and offer some suggestions on how we can collectively reduce the media abuse. Increasingly often that abuse prevents fair trials first time round and it might increasingly often mar the second-time-round trials envisaged here. Indeed, it might make them entirely impossible unless we get this right.

This has been a useful discussion. We have touched on some of the issues that we will come to later. It might be helpful if I point out to hon. Members that responses to the criminal justice White Paper relating to access to information are to be found both on the Home Office website and in the Library. I am sure that the website will now receive many more hits.

On amendment No. 314, in large measure, the hon. Member for Beaconsfield answered his own question, because as he recognised, subsection (2)(a) already provides for a wide range of circumstances, including those that are identified in the amendment, to be taken into account by the Court of Appeal in deciding whether a fair trial is likely to be possible. In that sense, the amendment is unnecessary, but if it is of assistance, I am happy to confirm on record that the considerations in subsections (1) and (2)(a)—the interests of justice and the possibility of a fair trial—would include the impact of any publicity on the likelihood of a fair trial. That is what is intended, whether that publicity relates to the original proceedings, which the amendment is restricted to, or any other matter.

The hon. Member for Southwark, North and Bermondsey raised several points. We will come on to clauses 69 and 70, which are standard provisions, as their wording replicates existing legislation on reporting restrictions. I understood his point about two-tier justice, but my right hon. and learned Friend the Solicitor-General answered that in noting rightly that the problem is no different from that which may occur when a retrial is ordered.

The hon. Gentleman asked about jurors in a retrial who recollect that the case has been subject to trial before. It may not happen in all circumstances, and it is not a relevant consideration that would be automatically drawn to their attention, but even if they happen to know, they will be directed to reach a verdict only on the evidence that is put before them.

The hon. Gentleman crystallised the broader point in his final question about consideration by Ministers, and he drew attention to an important issue from which we should not run away. The issue is not unique to the provisions on double jeopardy.

I was not advancing that argument.

Indeed, not. The point that I was going to make is that we cannot resolve the problem in relation to the double jeopardy provisions. The current protections—we will come to the detail later—and the consideration that both the Court of Appeal and trial judge have to give to the prospect of a fair trial after any prejudicial coverage remains the same as for any other trial. The Bill does not include any proposals to deal with the broader issue, but the hon. Gentleman put his finger on an important point in this age of 24-hour communication and news coverage. As we have seen with recent cases, to which as a society we will need to return, those developments change the context in which court proceedings take place and create a new challenge to which we have to respond.

Do the Government have anything in mind to deal with the fact that whether a jury may know that they are involved in a retrial could depend on different jurors' recollections? Given that the judge may never know that someone in the jury room has said that the case has been to trial before, have the Government contemplated whether it would be better to take the bull by the horns and allow the judge to confront the issue at the beginning of the trial? He

could say that some jurors may know that the matter has been to court before, but that it should not affect their starting presumptions. I ask the question because I assume that it must have come up in deliberations between Ministers and advisers. Has thought been give to that, and what were the conclusions, either provisional or final?

I undertake to reflect on that point. There are arguments either way, but since we shall be writing to hon. Members with the information that my right hon. and learned Friend the Solicitor-General indicated that she would find, I will also respond to the hon. Gentleman's point.

I am grateful to the Minister for his response, but I intend to press the matter to a vote, if only to draw attention to our concern about clause 66, which I believe to be of fundamental importance. It might also provide some encouragement to the Government to consider the matter carefully and to provide us with further reassurance on Report.

Question put, That the amendment be made:–

The Committee divided: Ayes 8, Noes 13.

Question accordingly negatived.

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

I have two questions and one observation. My first question relates to the provision on time, which we have not debated. Does the Minister take the view that the longer the period since the original trial, the more unlikely a fair trial will be? If not, what is the implication of the time provision?

My second question concerns the due expedition provision. Is it in the Government's mind that failure to exercise due expedition could be a complete barrier to a trial, or merely a consideration to be taken into account? Will the balance of justice ever be served by someone being tried when the sole reason for the matter not coming to court earlier was an avoidable delay caused by the authorities? Obviously, that relates to the ''protection'' clause.

My hon. Friend the Member for Somerton and Frome (Mr. Heath) and I voted for the last amendment, but there are further protections that we would like to see in the Bill, including one similar to that in that amendment. It seems to us, however, that it is better to retain a protection clause to build on

than to take that clause out, even if we do not believe that it goes far enough. Therefore, if the matter is pressed to a vote, we shall not vote against.

Clearly, the Government think that length of time is a consideration that should be taken into account in applying those tests, or it would not be in the Bill at subsection (2)(b). There may be a consideration in relation to the quality of the recollection of witnesses. That point was referred to in an earlier debate by the hon. Member for Beaconsfield. However, length of time itself may not be a bar, and the classic example of that is DNA evidence.

One of the best things that a Labour Government ever did was to make the European convention on human rights part of domestic law. Article 6, which is on the right to a fair trial, states that

''everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal''.

I am not making that up—it is there in black and white. Will the Minister please think about including the phrase ''reasonable time'' in the clause, instead of saying that we can look at evidence from 18 or 20 years ago, which is not a reasonable time?

I hear the hon. Lady's point. All the legislation that the House considers is subject to the tests of the European convention, and we live with that. I agree that making the convention part of domestic law was one of the best things that we have done, and I am sure that she and I agree on the reasons why.

The imprimatur of human rights compliance is no more than a rubber stamp on the front of legislation. However, it might help the Minister to know that the thrust of article 6 relates to the period between charge and trial, not the period before someone is brought to justice, although the clear implication is that the longer the period before someone is prosecuted, the more difficult holding a fair trial will become.

That is extremely helpful. The other examples that come to mind are war crimes and cases of genocide. Would it be right for the length of time since such an offence was alleged to have been committed to act as a bar? In so far as I understand what was in the minds of those who drafted article 6, I cannot believe that that was their intention. The hon. Gentleman is right. However, he is wrong to say that ECHR compliance is a rubber stamp. It genuinely reflects the view that the Government take during the consideration of all legislation. Judgments can be tested, and people can take their cases to the courts and pray in aid the convention. That is right and proper, which is why the Government incorporated the convention into UK law.

The reference to due expedition is highlighted as a consideration that the Court of Appeal should take into account when considering whether the interests of justice test is met. In the end, it is for the court to judge whether the due expedition clause should weigh heavily in determining whether the interests of justice would prevent it from making an order. That will depend on the facts of the case.

Question put and agreed to.

Clause 66 ordered to stand part of the Bill.