HL Deb 17 July 2003 vol 651 cc1009-25

1.41 p.m.

The Attorney-General (Lord Goldsmith)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Goldsmith.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]

Clause 57 [Prosecution right of appeal against certain rulings]:

Lord Thomas of Gresford moved Amendment No. 132J:

Page 39, line 31, leave out subsection (8).

The noble Lord said: We move now to Part 9 of the Bill dealing with prosecution appeals. I should say at the outset that we do not have any objection in principle to prosecution appeals for preliminary rulings. However, a little caution needs to be exercised because a great deal of judicial time can be wasted. During the last experience I had of appealing a preliminary hearing from the defence point of view, we spent some time in the Court of Appeal, where eventually the defendant lost on the preliminary hearing but was acquitted. Although it was very interesting, it did not have a great deal of effect.

I am very hopeful that the amendment will be accepted by the Government because Clause 57(8) refers to a trial conducted without a jury in the Crown Court, and trials conducted without a jury will not exist after Part 7 disappeared from the Bill the other day. I am sure that the noble and learned Lord would not want an inconsistent Bill sent to the House of Commons. I beg to move.

Lord Goldsmith

Perhaps I may deal first with the amendment and then take the opportunity to deal more generally with this part of the Bill. As the noble Lord, Lord Thomas of Gresford, said, it is the first time that we have touched on it.

The purpose of Amendment No. 132J is to delete subsection (8) consequential upon the deletion of Part 7 of the Bill. The noble Lord used the word "disappearance" in relation to that part of the Bill; the Government's view is that that disappearance is temporary. We oppose the removal of Part 7 and will restore it in another place. Having said that, as matters stand at the moment it would not be reasonable for me to resist the amendment. That could possibly delay the Committee's consideration of other important parts of the Bill. The fact that I do so obviously does not imply any acceptance of the removal of Part 7, to which we remain firmly opposed.

If Part 7 is restored to the Bill, it will be necessary to bring forward consequential amendments. I give notice of that now because it will necessarily add to any amendments that may come back from another place.

There are a number of other consequential provisions in the Bill which may not be as straightforward as this one and which may require different handling. We will give further consideration to those but, on this occasion, I can accept the noble Lord's amendment.

Let me take a moment to say something further about this part of the Bill in order to avoid saying it at a later stage in Committee. This part of the Bill creates a new right of appeal for the prosecutor against any ruling made by a Crown Court judge, either at a pre-trial hearing or during a trial, that terminates the trial early before the jury has been asked to consider the evidence.

At present, the defence has a right of appeal against conviction and sentence at the end of a trial but the prosecution has no equivalent right to challenge judges' rulings that bring cases to an end prematurely before the jury has been asked to consider the evidence. The purpose of these appeal provisions is to remedy that imbalance. This will assist in improving the consistency of judicial decision-taking. Where the Court of Appeal disagrees with a judge's ruling it will enable cases that otherwise would have been lost to be determined by the jury.

The provisions will enable the prosecution to appeal two kinds of rulings. The first category concerns rulings that are terminating in themselves, such as a stay of proceedings or a ruling of no case to answer. The second category concerns rulings that are so damaging to the prosecution case that at present the prosecutor is forced to offer no evidence, or no further evidence, such as a ruling to exclude a key piece of prosecution evidence or an order to disclose sensitive material to the defence.

In a letter I have sent to the noble Lord, Lord Kingsland, and copied to other noble Lords—including the noble Lord, Lord Thomas of Gresford—I have attached examples of the kinds of cases to which this can apply. I have also placed a copy in the Library. Should any Members of the Committee wish to refer to the letter but do not have it with them, I have copies available in the Chamber. I see that the noble Lord, Lord Thomas, is asking for a copy and one will he provided to him.

As the letter indicates, the Government hope to bring forward a series of amendments at Report stage. There will be two kinds of significant changes to the structure of the existing clauses. The first change will refine and clarify the existing provisions. This will include provision for essentially two matters. First, it will extend the time during which a prosecution appeal may be made to include the whole trial up to the start of the summing up. This is because a judge may withdraw a case from the jury at any time during the trial and, although there are likely to be very few such rulings after the close of the prosecution case, it is more rational to provide for a right of appeal against any terminating ruling regardless of when it is made. Secondly, there will be an amalgamation of the terminating and other rulings to clarify the provisions in Clauses 58 and 59. So those are the first kind of amendments that we intend to bring forward.

The second kind of amendment will introduce a right of appeal against certain non-terminating evidential rulings. The purpose of this will be to deal with evidential rulings or a series of rulings that significantly weaken the prosecution case but fall short of being fatal to it and therefore qualifying as terminating rulings. The difference between this right of appeal and the right of appeal against other rulings in the Bill in Clause 59 is that the trial will continue regardless of the outcome of the appeal. The Court of Appeal will not be required to acquit if the appeal is unsuccessful and the prosecution will not be required to accept that if leave to appeal is not obtained or the appeal is abandoned the defendant should be acquitted.

In Committee in another place, my right honourable friend the Solicitor-General, in response to a point raised by Mr Humfrey Malins, indicated that the Government were considering extending the right of appeal to such rulings, which she described as rulings that were very damaging but could not be predicted to be fatal. I mention that now simply to give added notice that that is there; plainly it is not for debate in this Committee, but I was anxious that noble Lords and others who read these debates would know what we intend. That is an extremely long response, given that I am accepting the amendment.

On Question, amendment agreed to.

Clause 57, as amended, agreed to.

Clause 58 [Appeals against terminating rulings]:

Lord Thomas of Gresford moved Amendment No. 132K:

Page 40, line 4, after "adjournment" insert "for no more than seven days"

The noble Lord said: I am most grateful to the noble and learned Lord for his exposition of what he has set out in a letter which, I regret to say, has not come to my attention. Whether that is my fault or somebody else's, I do not know. It being the case that the Government propose to amend these provisions radically, as it seems from what the noble and learned Lord said, I shall be brief going through these amendments.

I am concerned to tighten, not to extend, the sort of appeals that can be brought by the prosecution. The noble and learned Lord referred to the distinction between terminating rulings and other rulings. Terminating rulings mean, without any question, an acquittal. If a person is acquitted on a particular charge, he is entitled to be discharged and that is the end of it. If the prosecution is to challenge that terminating ruling, when, in effect, a person has been acquitted, it should be within very strict parameters.

The purpose of Amendments Nos. 132K, 132L and 133A—the latter refers to the other sort of rulings—is to limit the right of an adjournment to consider an appeal to seven days and also to make it quite clear, so that there should be no question about it, that there will be no application to extend that time by the prosecution. It is "make your mind up time" as far as they are concerned, and if they do not make their mind up within the seven days, the acquittal of the defendant should stand, as would any ordinary acquittal. This is the introduction of a new principle into the criminal justice system. At the very least, that sort of limitation should be introduced.

I shall be saying more about tightening up these clauses when we come to later amendments. I beg to move.

Lord Kingsland

We have amendments in groups 3 and 4 which would have the same effect as those of the noble Lord, Lord Thomas. For reasons of economy of time, I would like, respectfully, to adopt the arguments that the noble Lord has deployed in support of his own amendments in support of ours.

I was most grateful to the Attorney-General for his opening remarks, putting Part 9 in the context of the whole Bill. Will he indulge me by allowing me, in turn, to ask him some general questions about the philosophy that lies behind Part 9? I assure him that I shall be extremely brief in my observations and questions.

My first question is, what is the mischief that the Government are aiming at in Part 9? Is there a suspicion in their mind that judges on the criminal circuit are, in some way or other, pro-defendant? Or is there some other reason for wanting to introduce these proposals? I ask that question not only on its own merits but because the proposals in Part 9 have significant implications for the resources of the Court of Criminal Appeal. If there is no real mischief, what on earth is the point of making it even more difficult to get a case in front of the Court of Criminal Appeal than it is already? I understand that the delays in court for normal appeals run to about 15 to 18 months.

It is also quite clear that these new provisions will not only involve delay in themselves but will imply delay in the hearing of other totally unrelated criminal appeals. My supplementary question, in essence, is: if the Government really think there is a mischief, is solving it worth the cost that the criminal appeal system will have to bear?

My next question arises out of the remarks the noble and learned Lord made to your Lordships' House a little earlier about prosecution appeals against non-terminating decisions by judges. I am most grateful to the noble and learned Lord for writing to me in the way that he did; it was enormously useful in helping me to prepare for today's proceedings. But one issue that continues to lie fallow, following his letter, is whether or not there should be reciprocal rights for the defendant. If the prosecution can appeal against a non-terminating decision by a criminal judge, why cannot the defendant have the same rights of appeal? That, surely, is the principle that lies behind the notion of equality of arms, about which so much is spoken these days by human rights lawyers.

It also seems to me to be an issue of fundamental fairness in the conduct of criminal trials. If the prosecution can appeal, why cannot the defendant? I know the noble and learned Lord is still considering these matters, as he prepares his amendments for Report. He may already have this issue well in mind. But I thought it only fair that I should draw his attention to the point at this juncture so that he can reflect on the matter, if he feels it is worth while, over the summer adjournment.

Lord Lloyd of Berwick

I, too, am very interested in what the noble and learned Lord had to say in respect of his proposed amendments to Part 9, which seem to raise all sorts of rather different questions from those that I thought would be raised. I hoped that I might be, as it were, cut in on anything going on these amendments, along with all those who took part in the Second Reading debate—even those who would have taken part if they had not happened to lose their voice on the occasion in question.

Lord Goldsmith

I paused before rising simply because I see the noble and learned Lord, Lord .Ackner, in his place. Amendment No. 133, which is in this grouping, is in his name, and I did not know whether the noble and learned Lord planned to speak to it. If he did, this might be an appropriate moment for him to do so, before I respond.

Lord Ackner

As your Lordships see, the amendment, on the face of it, would merely change "must" to "may". That sounds an innocent amendment and, indeed, coming from me, it is, as your Lordships would expect, an innocent amendment. But for once, I do not have to ask your Lordships to rely on what I say because this is what is to be found in the memorandum deposited by the Lord Chief Justice which has the imprimatur of not only the Lord Chief Justice but all the other senior Lords Justices who deal with crime. Their point is: why should the judiciary not have discretion? All this vaunted underlining of the independence of the judiciary looks a little odd when you suddenly find "must" where, clearly, there should be judicial discretion. That is the limited and simple nature of my amendment, and I hope it will commend itself to the Attorney-General.

2 p.m.

Lord Goldsmith

I plan to respond briefly first to the general questions asked by the noble Lord, Lord Kingsland. That may assist in understanding the nature of the provision we are discussing. The noble Lord asked what was the mischief at which the Government aim. Is there a suspicion that Crown Court judges are pro defendant? I unhesitatingly answer that latter question by saying, "Certainly not". But that does not mean that on occasion they may not make an error in the judgments that they reach, particularly errors of law in certain circumstances.

I sent a letter to the noble Lord, and I believe that a copy has now been received in the Chamber at least by the noble Lord, Lord Thomas. I hope that the other copy will be discovered in his Chambers or at some other address. A copy is in any event in the Library but I shall also ensure that copies are sent individually to all Members of the Committee who participate in today's debate. That identifies by way of examples the kind of case where the measure we are discussing may apply. I wish to take a few moments to identify one or two of them without going through the detail just to give an idea of the circumstances in which the matter can arise.

There will be cases where a judge will make a ruling that there must be an acquittal and so directs the jury, or he grants a stay of the proceedings which is in effect final, or where the ruling is so damaging to the prosecution's case that they cannot continue. That case will come to an end at that stage without the matter ever going, as it were, on its merits to the jury to decide. If he makes an error in his ruling against the defendant, the defendant will have the opportunity to appeal, should the jury convict him, after the trial. But the prosecution has no such right. There is no way of testing whether or not that ruling was correct.

I give an example, referring to Case 2 in the list. Several defendants were acquitted on charges of conspiracy to defraud on a large scale. There was then a further prosecution of a further conspiracy to defraud. That had been severed from the original conspiracy quite deliberately by the court because it thought that dealing with all of the cases together would be too much for the jury. As I say, the further prosecution was deliberately severed so that it could be tried later. When it came to be tried, the trial judge ruled that it should not be allowed to go ahead on the grounds that it was an abuse of the process. Therefore, the defendant was acquitted on those counts. There was no possibility for the prosecution to test that ruling by the learned judge in another court.

I give another example, Case 9, where a man charged with attempted murder of an hotelier was found with the victim's blood on his boots and trousers. He admitted being at the scene. But at the close of the prosecution case the trial judge invited the defence to make a submission of no case to answer and then upheld it.

Some of these cases are cases where there has been what is known as an Attorney-General's reference; that is, a reference by the Attorney-General on a point of law to the Court of Appeal where the Court of Appeal has actually said that the judge below was wrong. But as it stands at the moment, such a ruling has no effect upon the acquittal that has taken place. One such case—Case 11—was a detailed case of a man charged with attempted rape. The evidence was that householders were disturbed by noises. The complainant was found with her underwear round her ankles and, indeed, the defendant was found with his trousers round his ankles. He was kneeling near her. When asked what he was doing. he replied, "What do you think?" He was asked whether the girl had agreed to have sex with him. He replied, "I do not know; I did not ask her". There was bruising on his and her genitals. The trial judge stopped the case and acquitted the defendant on the basis that the prosecution had to prove that the defendant had physically attempted penetration, and it had not done so. The Court of Appeal said on a reference that the trial judge was wrong and there was plainly evidence from which the jury could infer what had taken place. But notwithstanding that ruling, there was no possibility of the case being restored.

I refer to another example which concerns the other category of case; that is, the ruling where the prosecution has to stop the case. Case 13 is also an Attorney-General's reference case. The Committee will recall the circumstances. A DNA match was made in relation to DNA taken from a rape victim with a DNA sample that had been taken from someone previously acquitted of burglary. The police had not destroyed that DNA sample. The Committee will know of the circumstances because we have considered the consequences of the ruling that subsequently emerged from the House of Lords that notwithstanding that the sample should not have been retained, it was admissible in evidence. The trial judge had ruled that it was not admissible in evidence. The result was that there was not evidence upon which the prosecution could proceed. The man was acquitted although the House of Lords subsequently said as a matter of law, on the law as it stood, the evidence was admissible and the prosecution could have gone ahead.

I hope that those examples indicate that this has absolutely nothing at all to do with any suggestion or belief that trial judges are anything other than objective and even-handed as between prosecution and defence, but occasionally they may make errors. One circuit judge, when told that the Court of Appeal had reversed his judgment, said, "That is what they are for". It is what the Court of Appeal is for and occasionally it reaches a different view. We seek to give the prosecution the ability in a limited number of cases to test the correctness of such an important ruling before the Court of Appeal.

Secondly, the noble Lord asked me whether the measure would have enormous resource implications. The proposals have been developed in consultation with the senior judiciary. The Explanatory Notes at paragraph 785 give details of the resource implications which we believe will arise on the basis of best estimates. For the Crown Prosecution Service training and expenditure costs are estimated at £1.5 million over two financial years and about £1.3 million annually thereafter. Costs to the Department for Constitutional Affairs relating to the provision of additional Appeal Court capacity are estimated at about £0.8 million per year. Of course, there are resource implications but they are relatively modest and certainly justified in the Government's view by the importance of being able to test such rulings.

Thirdly, the noble Lord asked me—

Lord Ackner

I hope that I may intervene on that point. Are the resource implications extended to assisting the Court of Appeal, or are they purely in relation to training the prosecution and other such matters?

Lord Goldsmith

They cover the costs of what is described as, the provision of additional Appeal Court capacity". That is the estimate of the Department for Constitutional Affairs. There is also an estimate for legal aid costs of about £0.1 million annually from the financial year 2005–06. Of course I recognise that those are estimates based upon what has to be an estimate of the number of cases that may arise, but I hope that they are of help.

Thirdly, the noble Lord asked about provisions which do not at the moment appear in the Bill. I am grateful to him for giving me the opportunity to consider the matter. Of course, the question of whether there should be reciprocal rights for the defence has been considered. When we come to Report, I shall want to deal with that in more detail. However, I shall indicate in the broadest terms what the response will be. The defence has the ability to appeal. If a ruling is made by a trial judge in the course of the trial to the effect that certain evidence is admissible, and if the defendant is convicted, at the end of the day the defendant can include in his appeal a complaint that the conviction was wrong because it admitted evidence that was not admissible.

Lord Kingsland

Will the noble and learned Lord give way?

Lord Goldsmith

If I may, I shall continue for a moment. On this occasion, when we are talking about a provision not in the Bill—we have amendments in relation to the part on provisions that are, and to another part to which I know that Members of the Committee are anxious that we should get—I would really rather not develop it further. Of course. if Members of the Committee want to intervene I could not and would not prevent them.

Lord Kingsland

I am most grateful to the noble and learned Lord for giving way. I have been away from the House so long that I had quite forgotten the tranquillising effect that his words had on it. That makes me almost reluctant to intervene—it seems a kind of impertinence. Nevertheless, perhaps I might be permitted to reflect on what I think was the last substantive observation that he made.

The noble and learned Lord seems to suggest that the right of the accused to appeal against conviction after the jury's decision is in some way equivalent to any right that he might have to appeal against a non-terminating decision by a criminal judge made against him in the course of the trial. In my submission that view, if not naive, is certainly inaccurate.

As the noble and learned Lord well knows, the test for the Court of Criminal Appeal is whether a conviction is unsafe or not. It is perfectly possible for the Court of Criminal Appeal to decide that the judge's finding in relation to the accused's submissions on a point, say, of inadmissibility was incorrect, but at the same time to uphold his conviction. If I may respectfully submit it, the idea that the defendant has the same rights as a result of an appeal against conviction as he would have on an appeal against a non-terminating decision by a judge against him is a chimera.

2.15 p.m.

Lord Goldsmith

The noble Lord's absence from the Chamber certainly has not in any way dimmed the clarity or pointedness of his contributions. I am really not going to be tempted to debate a provision that is presently not in the Bill. The noble Lord's point is one that has, of course. been considered. It will be necessary on a future occasion to talk a little more about the current practice of the Court of Appeal in relation to appeals, but I do not want to go further into that. I offered the noble Lord a meeting with me—indeed, we had arranged it, and I do not for a moment complain that he was not able to make it—to discuss the provisions and the intended provisions, an offer that I am very happy to make available to any other noble Lord who would also like to discuss them. We could certainly discuss the topic on that occasion and come back to it on Report.

I shall turn specifically to Amendment No. 132K, which would insert, for no more than seven days", into the provision relating to the adjournment that the prosecution may seek if it wishes to consider whether to appeal against a particular ruling. Part 9 sets out a broad statutory framework for prosecution appeals, but the intention is that the detail of the procedures to be followed will be set out elsewhere, especially in rules of court and practice directions. We are anxious that those should be prepared after discussion and consultation with all interested parties, principally the judiciary. However, the provisions have been subject to consultation with the judiciary and, in the light of its concerns, we want to get the rules right and ensure that it is content with them. Of course we want to minimise delays to trials, while ensuring that trial judges have flexibility to deal with the variety of situations that may arise during a trial and which cannot be anticipated.

Clauses 58 and 59 set out the procedure to be followed where the prosecutor may wish to lodge an appeal against a judge's ruling. They allow the prosecutor to indicate an intention of appealing immediately, or to request an adjournment in order to consider whether to do so. The judge is required to grant the adjournment. The requirement is the subject of the amendment tabled by the noble and learned Lord, Lord Ackner, to which I shall come in a moment. As said by the noble Lord, Lord Kingsland, other amendments that we shall discuss separately suggested other time limits—for example, no more than 48 hours. In another place, the suggestion was no more than one day. We agree with the thinking that underlies the amendments—that the decisions need to be taken quickly so that there is not delay—but we do not agree that it is desirable to put such time limits in statute.

The current expectation that we have in mind is that the likely time limit will be in most cases even shorter than that proposed by the noble Lord, Lord Thomas of Gresford. In another place, 24 hours was referred to. In many cases, that will be absolutely adequate, but there may be cases in which it is not. There is something to consider that is important and cuts the other way: the power should be used sparingly and judiciously. Therefore, it is intended, as I said in the letter to the noble Lord, Lord Kingsland, that the Director of Public Prosecutions will give guidance to prosecutors as to when they should use the power.

In certain cases, the power may require consultation with a more senior prosecutor. In those circumstances, I can certainly envisage that there may be cases in which, with the best will in the world, it is not possible to get that approval within, for example, 24 hours. Therefore, it may be sensible for the period to be a little longer in the interests, while keeping the delay down, of getting a sound decision that does not lead to too many appeals.

Fundamentally, we believe it better to go to rules for setting down time limits. Rules will be able to allow for exceptional circumstances—no doubt within the judge's discretion—better than placing something in statute. What is more, experience may tell that a time limit on which we originally fix is not the right time limit. In those circumstances, if it is in rules it is easy to take account of experience. If it is in statute it is much more difficult to do. Although agreeing with the underlying intention of the provisions, that is why we think it better to leave the matter to rules and practice directions rather than putting it in statute.

I shall move on to Amendment No. 133, tabled by the noble and learned Lord, Lord Ackner. Of course I recognise that it echoes concerns expressed by the noble and learned Lord, Lord Woolf, in the paper deposited after Second Reading. Mandatory procedural requirements are nothing new, and there is good reason in the Government's view for including this one in this instance. It is vital that the prosecutor is given sufficient time to consider lodging an appeal and, in appropriate cases, to take advice and consult senior colleagues. Indeed, he may have to get consent from a senior colleague.

The Government believe it better to provide a necessary protection for both prosecutors and defendants, to provide that there really has to be an adjournment for that consultation to take place if the prosecutor is not in a position to say there and then that an appeal should be brought. If not, there is a risk that an overly hasty decision will be taken. If a judge declines even the sort of short adjournment that I have in mind for the prosecutor to consider the position, there is every risk that the prosecutor will then say, "I must go ahead and appeal it", which would not be in anyone's interests if there had not been real consideration.

I can assure the noble and learned Lord, Lord Ackner, that I am a strong supporter both of the independence of judges and of having confidence in their abilities. I would want always to uphold them. However, it is a modest requirement in the interests of both prosecutors and defendants that a short adjournment takes place if the prosecutor feels that an appeal is required.

Lord Clinton-Davis

If the judge forms a view that there is absolutely no merit in what the prosecutor argues, why should he not have that discretion? It is very sensible.

Lord Goldsmith

Those of us who have sat as judges have had the experience of believing that there was absolutely no merit in what someone was saying, only to find that, on appeal, not only was there merit, but also that he was right and we were wrong. If the judge believes that it was wholly inappropriate even to have thought about the appeal, I have no doubt that he will make very clear his views when the prosecutor comes back and says, "No, after all, we are not going to appeal". And it frequently does happen in criminal courts, as in other courts, that, for all kinds of reasons, both prosecutors and defence ask for short adjournments to consider matters. While I am the last person to want to see delay in the courts, the kind of period that we are talking about—one designed to allow for a sensible decision to be made—is entirely justified.

Lord Lloyd of Berwick

Those of us who have sat as trial judges have always been brought up to believe that the question of whether or not to grant an adjournment is essentially a question for the trial judge, who has the feeling of the whole case. Those of us who have had the advantage of sitting in the Court of Appeal have always taken the view that to interfere with the judge's discretion in such cases is something that we will not do.

Lord Renton

I speak as one who did a lot of work as a recorder and, who, for two years, was an occasional relief judge at the Old Bailey. Circumstances can vary so much that it seems to be wrong to deprive the judge of the opportunity to refuse to grant the adjournment.

Lord Goldsmith

It is not a question of requiring the judge to allow the appeal to take place. That will be a matter for leave. It is our intention that important safeguards and guidance will be given to prosecutors so the adjournment is used judiciously.

It is important that an opportunity is provided to a prosecutor to consider properly whether that new procedure should be implemented in a given case. It is much better that there is an adjournment to allow that to take place than that people, as a result of a refusal of an adjournment, are simply driven into saying, "Well, then, I do wish to appeal". That will set in train the need to consult the Court of Appeal about whether an expedited hearing is possible.

Someone may reach the point of asking, for example, "I think that I may well want to seek leave to appeal. May I have a short adjournment until tomorrow morning in order to consider that and to consult?" If the trial judge says, "No, I do not think there is any merit in that", I respectfully suggest that in nine cases out of 10 the prosecutor will say, "Well, in those circumstances, I must now stand by my initial reaction, which is to seek leave to appeal and that is what I will do". That does not seem to be sensible at all. As far as the short adjournment is concerned, without in any way undermining our belief in the importance of judicial independence and the confidence in judges, we believe that it is appropriate to leave the word "must" rather than insert "may" in the provision.

Lord Thomas of Gresford

I am grateful to the noble and learned Lord the Attorney-General for his reply. The noble Lord, Lord Kingsland, beat me to the gun on the question of equating the prosecution's right of appeal in an interlocutory matter with the defendant's right of appeal at the end of a case. As he said, it is frequently the case that one succeeds in the Court of Appeal and establishes that a ruling made by the judge during the trial to allow evidence was wrong. The court then says, "But we think that the conviction was entirely safe". That has to be pure guess work. Let us take, for example, an "introducing evidence" point. On the one hand, the prosecution will perhaps have the right to introduce evidence before the jury following an appeal, but, on the other hand, the Court of Appeal may say to a defendant, "Well, that evidence was included and you were right to object to it, but you would have been convicted anyway". That is just a guess. One cannot equate one with the other.

I am impressed by the assurance of the noble and learned Lord that rules will be promulgated to deal with matters such as time limits. I inserted "seven days" in the amendment because it is essential that the prosecutor takes advice. I hope that any guidance from the DPP will make it clear that in the heat of the moment—and matters do become heated—it is not the prosecutor who will quickly take that decision to appeal. There should be time for reflection and consultation; that should be a matter of procedure. I see that the noble and learned Lord agrees with me on that point. I would be grateful if he would say so.

Lord Goldsmith

I was nodding in assent to the general point that the noble Lord was making. It is important that decisions are not made just in the heat of the moment. It is likely that, in those circumstances, advice will need to be sought. I rise because I would not want to give the impression of having agreed with every aspect of what the noble Lord said about what the guidance should be. The invitation that I made to the noble Lord, Lord Kingsland, to discuss these matters, including the issues touched on by subsequent amendments—which I will not be drawn into today—is of course extended to the noble Lord, Lord Thomas. I am sure that we would benefit if he were able to take up that offer.

Lord Thomas of Gresford

I have a feeling that the noble and learned Lord has already made that offer to me in the course of earlier proceedings. For the reasons that I have given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132L to 132N not moved.]

Lord Thomas of Gresford moved Amendment No. 132P:

Page 40, line 20, at end insert— (8) Where the prosecution informs the court in accordance with subsection (3) that it intends to appeal against a ruling, the judge must—

  1. (a) order the expedition of the appeal;
  2. (b) discharge the jury (if one has been sworn);
  3. (c) grant bail to a defendant in respect of the charge or charges which are subject to the appeal."
The noble Lord said: I am concerned about what happens when a notice of appeal is given by the prosecution. As I indicated in the debate on the previous amendment, where there is a terminating ruling the person will be acquitted. Consequently, if he is in prison on remand, he will be released. If it is the view of the trial judge that he should be acquitted by reason of the terminating ruling that he has made, my proposed subsection (8) should come into play. Pace the noble and learned Lord, Lord Ackner, the judge must, order the expedition of the appeal", so that the matter is addressed quickly. He must also, discharge the jury (if one has been sworn)". Where there has been a terminating ruling, it seems quite wrong that the jury should hang around until the Court of Appeal has pronounced on the matter and then come back, maybe months later, to continue the trial.

Finally, the judge must grant bail to a defendant in respect of the charges which are the subject of the appeal. If he is on remand for other charges, or if the trial proceeds on other charges, so be it, he will not be released. But he will have the advantage of the ruling which has been made in his favour until the Court of Appeal states that it is wrong. Amendment No. 132P splits Clause 60, which deals with expedited and non-expedited appeals into two kinds—those which are concerned with a terminating ruling and those which are concerned with other rulings.

Coupled with that are Amendments Nos. 133E, F, H and J in my name. The proposal in Amendment No. 133F is that where the ruling is not a terminating ruling but an interlocutory matter, the judge must discharge the jury. Again, in my view it is wrong that the jury should hang around waiting for the Court of Appeal to decide on a particular matter. For the same reasons I have given in relation to Amendment No. 132P, the judge must grant bail in respect of the charge or charges which are the subject of the appeal.

Amendments Nos. 133H and J are consequential to that principle. If the prosecution is going to exercise this new right of appeal, it has to be subject to stringent conditions as to time and as to what happens to the defendant and to the trial while that appeal is awaiting hearing. The noble Lord, Lord Kingsland, referred to 15 or 18 months currently for an appeal to be heard. I know of an appeal which is coming up in October resulting from a conviction three years ago. The pressure upon the Court of Appeal is enormous. We cannot have a system which stuffs the Court of Appeal with prosecution after prosecution appeal, expedited or non-expedited, and causes people who are awaiting appeals against conviction in the ordinary way to have to wait their turn. I beg to move.

2.30 p.m.

Lord Kingsland

I support the speech of the noble Lord, Lord Thomas of Gresford. In doing so, I want to ask the noble and learned Lord the Attorney-General what I hope he will not think a naive question.

Am I right in thinking that the effect of Clause 58(6) is that, if there is an application for leave to appeal against a terminating ruling by the judge, the judge must continue with the trial? Is that the effect of that provision? Or is there an obligation once leave is granted, to adjourn and either expedite or not expedite the appeal?

Lord Goldsmith

Before I deal with this series of amendments, I want to comment on the difference between expedited and non-expedited appeals. As yet, it has not been mentioned. When the prosecution informs the court of its wish to appeal, it is necessary under Clause 60 for the judge to decide whether it should be an expedited appeal or a non-expedited appeal. It is easy to see in what circumstances the judge might think it right for there to be an expedited appeal and in what circumstances it would not be necessary.

The main purpose of the clause is to allow prosecutors' appeals against rulings made in the course of the trial to be heard quickly, particularly if a jury has already been empanelled. It is less important that an appeal be expedited if the ruling is made before the trial has begun or if no jury is yet in place. In this respect, the prosecutor's appeal against a ruling tinder Part 9 at a pre-trial hearing will be like an appeal against a ruling made at a statutory preparatory hearing where there is a right to appeal.

Inevitably, there will be some cases in which an appeal is lodged during the trial. It will immediately be apparent that it cannot be expedited. The intention is that inquiries will be made of the Court of Appeal as to whether, for example, it is able to accommodate such an appeal. It may be that the arguments are complex. Where it appears that the appeal cannot he determined quickly, the Bill would allow the non-expedited route to be taken in that case also.

What then will happen? If the judge decides that the appeal should be expedited, he may order an adjournment and the length of that will depend on a consideration of how long it may be for the Court of Appeal to deal with the issue. In the case of an expedited case, that may happen on the Tuesday when it is indicated that the Court of Appeal will be able to deal with the matter on the Thursday, so the trial might be adjourned until the Friday. That will be for the trial judge to determine, with the ability for both the trial judge and the Court of Appeal to reverse that decision once it has been made, if it turns out to be unsatisfactory.

If the judge decides not to expedite the case, a different process will be followed. If it is being expedited, he would not discharge the jury because the jury would then be ready to deal with the case when it returned. Let us suppose that the Court of Appeal said that the ruling was wrong and that the case should proceed. Let us further suppose that, typically, the jury has heard all the evidence during three or four weeks, a submission has been made on behalf of the defence and the judge has ruled that the prosecution case has to stop. In such a case, it makes sense to get that ruling tested quickly in the Court of Appeal if it can accommodate it. If it upholds the judge's ruling, the case will come to an end. If it does not, the case will continue with the same jury in place. This provision has been built up in consultation with the senior judiciary who have been consulted about it.

That is the background. I turn now specifically to the amendment. Amendment No. 132P would require the court to expedite all prosecution appeals under Clause 58 against terminating rulings as defined by the Bill. Then the court would have to discharge the jury and bail the defendant. The amendment is highly inappropriate for several reasons. Imagine that we are dealing with a trial for murder. The accused is thought likely to abscond and has not received bail at any time since his arrest. The judge makes a terminating ruling which the prosecutor is firmly convinced is wrong and the prosecutor decides to appeal.

First, there is no reason why a terminating ruling should always follow the expedited route. Most pre-trial appeals will not be expedited, but those lodged after the jury has been empanelled generally will be. It will be for the trial judge to determine that, having regard to all the circumstances. However, if it is clear that an appeal is not capable of being expedited, the court ought to be able to determine which route is followed and the Bill to allow flexibility to decide that. If the court decides that a non-expedited appeal is necessary, a non-expedited appeal should be the outcome.

The second effect of the amendment would also be highly undesirable. Assuming that an appeal is expedited, what possible reason could there be for always requiring the jury to be discharged? The whole point of providing for an interlocutory appeal is so that the trial can continue if the Court of Appeal considers that the trial judge was wrong. Therefore, on the recommendation of the senior judiciary, we have provided for an expedited appeal so as to enable the same jury to remain in place, with less interruption to the trial.

The third effect of the amendment would, frankly, be disastrous. The amendment would require the accused—I speculated that it might be someone charged with murder who was likely to abscond or perhaps someone who was thought capable of interfering with the witnesses—to be freed on bail in all cases, even where those risks existed. That cannot possibly be right.

No doubt the trial judge and the Court of Appeal will have in mind all those considerations—how long the defendant will remain in custody, how quickly the appeal can be dealt with, and the effect on the jurors of keeping them away from the trial for a period of time—when deciding whether it is a proper case to expedite. Therefore, we cannot accept the amendment.

The effect of the related amendments—Amendments Nos. 133E, 133F, 133H and 133J to Clause 60—would be similar. Curiously, their first effect would be to leave untouched the power of the court either to expedite or not to expedite a prosecution appeal under Clause 59 against a ruling which is not a terminating ruling as defined in Clause 56 but which is a ruling that the prosecutor regards as terminating. However, there is no reason why an appeal under Clause 58 against a formally terminating ruling should always be expedited but an appeal against a ruling which is, de facto, terminating should not. Both types of ruling lead inevitably to the conclusion of the proceedings for the offence in question.

At all events, the next effect of Amendments Nos. 133E, 133F, 133H and 133J would be to require the court to discharge the jury and bail the defendant where the appeal was not expedited. The court may well want to discharge the jury in a non-expedited case hut, for the reasons I have given, an obligation to grant bail would be highly undesirable.

The effect of Amendment No. 133EA would be to require the court, where an appeal was expedited, to grant an adjournment in all cases. The effect of Amendment No. 133G would be to require the court, where an appeal was not expedited, either to grant an adjournment or to discharge the jury.

When similar amendments were debated in another place, I believe it became clear that the judge should not be obliged to grant an adjournment in the first situation or to discharge the jury or grant an adjournment in the second, but that he should have a discretion to do so. The reason for that is that the Bill allows proceedings for offences to which the appeal does not relate to continue at the court's discretion. The appeal is against the judge's ruling; it is not against an acquittal because no acquittal is ordered at that stage. The appeal is interlocutory and thus the acquittal is suspended.

At this point, I shall answer the question put by the noble Lord, Lord Kingsland. Clause 58(6) simply provides for the appeal ruling to be suspended while the appeal is in progress. It does not mean that the trial must continue. It is possible that in certain cases the trial judge will say that certain aspects of the case can continue, even while awaiting the ruling from the Court of Appeal. Then the trial would be able to continue in relation to those defendants or in relation to that matter, but that is to be determined at the discretion of the trial judge.

Therefore, the Bill provides the judge with a necessary flexibility. I am sure that at least on that point the noble and learned Lord, Lord Ackner, will agree that, if these procedures are to be in place at all, it is desirable that that should happen. For those reasons, I invite the noble Lord to withdraw his amendment, and I shall oppose the others if they are moved.

Lord Thomas of Gresford

The noble and learned Lord makes a very persuasive case, which I shall read with great interest. My concern is that, where there is a terminating ruling, the defendant should be acquitted. As the noble and learned Lord was addressing your Lordships, I was considering whether it was envisaged that, although the judge has made a terminating ruling, he will not discharge the defendant—that is, whether there will be some kind of limbo position until the prosecution have made up their mind whether to appeal that ruling. In the ordinary case, if the judge were to find no case to answer, he would direct the jury to order an acquittal. But is there to be a period of days while the jury are left to wonder what will happen? What is the position then?

Lord Goldsmith

With respect, I should have thought that that was clear from the preceding debate and from what I said. The whole purpose of providing the appeal is that, in certain circumstances, there can be an interlocutory appeal against a ruling which would otherwise be terminating. It would be disingenuous and misleading for the defendant to pretend that, while that was taking place, he had been acquitted. That is why Clause 58(6)—the provision to which the noble Lord, Lord Kingsland, drew attention—states that, while consideration is being given to whether there should be an appeal, perhaps overnight or a little longer, the ruling would have no effect in relation to the offence. If that were not right, we would need to add an additional category of cases where there could be a second trial to those already envisaged in Part 10, which we shall reach later today.

Lord Thomas of Gresford

As, in any event, these clauses will not remain as they are and as there is to be a rehash before Report by the Government, for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 agreed to.

Lord Bassam of Brighton

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.