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Baroness Blatch: This new clause would provide a right of appeal to either party against a decision of the Crown Court either to grant or refuse an application to quash an indictment on the grounds that the delay in bringing the case to trial would make a fair trial impossible. Until 1993 it was thought possible for both parties to seek judicial review of such a decision—or, more precisely, of a decision on an application to stay an indictment. However, in the case of Ashton the House of Lords ruled that the High Court did not have jurisdiction to review these decisions, as they were matters,

The defence can only challenge a decision of the Crown Court to refuse an application on appeal to the Court of Appeal following conviction. There is no means of redress for the prosecution.

I can understand why my noble friend tabled this amendment. But providing a right of interlocutory appeal, as this new clause proposes, would have considerable implications for the administration of justice. It would add an extra stage into the process and further delay the trial. It might be open to exploitation by the defence, who could use such appeals as a delaying tactic. While that would be confined to cases where there had already been a considerable lapse of time, I would suggest that it is all the more important in such cases that further delays be avoided.

Although I can see arguments in favour of a prosecution right of appeal against such decisions, which might result in important criminal proceedings being halted, it is not altogether surprising that one does not exist—rights of appeal have not traditionally been available to the prosecution. That was one of the points made by the noble and learned Lord, Lord Bridge. The defence, on the other hand, if aggrieved by a particular decision of the Crown Court, can have that decision reconsidered by the Court of Appeal following

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conviction. I believe that that represents adequate redress for the defence. A general right of appeal at the interlocutory stage against such decisions would need a good deal of further consideration before it could be adopted, particularly in view of the possible implications for the handling of court business and the timely conduct of trials. I hope that in the light of those objections, while I understand the anxieties of my noble friend, he will feel able to withdraw his amendment.

Lord Ackner: Before the noble Baroness sits down, will she contemplate that the introduction of the obligation to obtain leave to appeal in the interlocutory stage would solve many of her anxieties in relation to the question of delaying meritless appeals?

Baroness Blatch: The noble and learned Lord makes an interesting point. Perhaps he will allow me to take it away for consideration—it may well be an answer—between now and the next stage of the Bill.

Lord Campbell of Alloway: I am grateful to the noble and learned Lords who spoke and of course to my noble friend the Minister. In relation to the point made by the noble and learned Lord, Lord Ackner, my noble friend's brief was written before I raised the question of seeking leave from the trial judge or the Court of Appeal. I had that very point in mind—that one must have a safeguard against abuse. I hope that the reaction of my right honourable friend the Secretary of State and his advisers will be open to this point and that they will consider that their anxieties will be wholly met in a satisfactory fashion.

I cannot accept the invitation to withdraw the amendment in the sense that I shall never come back to it. I have said that I shall withdraw it today because that is the sensible course to take, particularly in view of the fact that it is manifestly plain that the noble and learned Lord, Lord Bridge, wants to widen the scope of the amendment. If he does, I shall withdraw my amendment and support his. The issue will come back; it will not go away. There is no question of that. On the next occasion I shall certainly divide the Chamber, either in relation to my amendment or in relation to the amendment of the noble and learned Lord, Lord Bridge. I do not mind whether I win or lose, but I believe that it is right to do so.

When this matter has been fully considered at Report stage, I hope that my noble friend the Minister will allow us to entertain constructive discussions as to a form of amendment that may be acceptable to my right honourable friend the Secretary of State, however drafted by the noble and learned Lord, Lord Bridge of Harwich. There is no more to be said at this stage. I ask my noble friend to keep an open mind. It would be a great pity to take up a lot of time in your Lordships' Chamber on a matter that will continue to be pursued and will not go away. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 2 [Grounds for allowing and dismissing appeals]:

Lord McIntosh of Haringey moved Amendment No. 3:

Page 2, line 31, leave out from ("conviction)") to end of line 36 and insert ("in subsection (1) (a) (grounds on which the Court of Appeal are to allow or dismiss an appeal), leave out the words "or satisfactory" and insert the words "or may be unsafe".").

The noble Lord said: In moving Amendment No. 3 I shall speak also to Amendments Nos. 4 to 9 which are identical in effect. These are conservative amendments. They have the effect of making the changes to the original Act less extreme than they appear to be in the Bill. I refer to Section 2 of the 1968 Act and subsection (1), which is concerned with grounds on which the Court of Appeal is to allow or dismiss appeals.

The Government have opted for a simple formulation, in that if the Court of Appeal thinks that a conviction is unsafe, it allows the appeal, but otherwise it dismisses it. That is a change from the wording of the 1968 Act which included the words "unsafe or unsatisfactory". For practical purposes we agree that there is no distinction between "unsafe" and "unsatisfactory"—at least I do not agree, but the Court of Appeal has said so and we had better accept what it says as being the position that stands in law.

The Runciman Commission used the words "is unsafe or may be unsafe". If we abandon the use of the word "unsatisfactory", it is necessary to keep a distinction between something which is without doubt unsafe and something which may be unsafe and yet is a proper ground for an appeal to be allowed.

The noble and learned Lord the Lord Chief Justice, who had to leave for another appointment, said at Second Reading that if a verdict "may be" unsafe, then it is unsafe. But that is not the English language. There is a distinction in the English language between something which may be unsafe and something which is unsafe; in other words, is without doubt unsafe. The simple formulation which the Government have chosen is too restrictive and gives too little possibility to the Court of Appeal to allow an appeal. Already we are making changes to the powers of the Court of Appeal. Until now, if a case was unsafe on a point of law it was automatic that the appeal should be allowed. Now all cases will require the leave of the court or a certificate from the trial judge, which was previously the position only in cases that concerned matters other than points of law.

In the evidence given to the Royal Commission on Criminal Justice a lot of people argued that leave to appeal should be abolished in all cases. Does "leave to appeal" add very much to the operation of the Court of Appeal? However, we cannot make that argument now. We are not making such fundamental changes. What we are doing in the Bill is to set up the Criminal Cases Review Commission.

We are proposing a very modest change. We are proposing to go back to more of the wording of the 1968 Act. We are proposing to use the wording that was used by the Runciman Commission. We are proposing that this should provide the proper role for the Court of Appeal in ruling on errors of law and procedure. We are not doing anything revolutionary or dramatic but I believe that it

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will be possible for the Court of Appeal to act in a more rational and flexible way if these amendments are accepted. I beg to move.

The Deputy Chairman of Committees (Lord Lyell): I would advise the Committee that if Amendment No. 3 is agreed to, I shall not be able to call Amendment No. 4.

5.30 p.m.

Baroness Blatch: Amendment No. 3 would have the effect of maintaining the existing grounds for deciding an appeal against conviction, while replacing "or unsatisfactory" with "or may be unsafe". It is well-known that there has been widespread agreement that Section 2 of the Criminal Appeal Act 1968, while it has served us well, is in need of substantial redrafting. That was reflected in the report of the Royal Commission on Criminal Justice, which argued that the grounds for deciding an appeal were overlapping and unclear and should be redrafted to provide a single, broad ground.

There are many ways in which the current formulation of Section 2 is unnecessarily complex and even self-contradictory, and the reference to both "unsafe" and "unsatisfactory", which would be removed by the amendment, is only one. I shall not embark upon a detailed critique of the 1968 Act, but by way of illustration, under the current formulation, which would be maintained under this amendment, the court would be able to apply the proviso and dismiss an appeal, even when it thought that the conviction was unsafe and should be set aside. That would clearly be meaningless.

We have made it clear throughout the passage of the Bill that our intention is to consolidate the existing practice of the Court of Appeal. The "lurking doubt" test will be maintained, as will the possibility for appeals to be allowed on the grounds of errors of law or material irregularities at trial. In each case, the issue for the court to decide is whether the conviction is unsafe.

I believe that there are considerable advantages in providing a broad ground for deciding an appeal. It allows the court the flexibility to allow an appeal on any ground which it considers renders the conviction unsafe. There are numerous factors which can render a conviction unsafe. There is no need to spell them out in statute because whatever words are used, in the end there is only one question for the court to answer: whether or not the conviction is unsafe. As I shall explain in a moment, I do not in any case consider there to be any advantage in adding the words "or may be unsafe" to the test for allowing an appeal.

Amendments Nos. 4 to 9 take up the recommendation of the Royal Commission on Criminal Justice that the Court of Appeal should allow an appeal against conviction if it thinks that the conviction is or may be unsafe. We considered the Royal Commission's recommendation carefully before deciding to use only the words "is unsafe" and not the words "may be unsafe" in the new test for allowing an appeal. Combining the two phrases suggests that some convictions are more unsafe than others and, accordingly, that some convictions are

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quashed more thoroughly than others. That is not the intention. We therefore decided that we had to choose between the two.

The difficulty with the phrase "may be unsafe" is that it is inherently uncertain. Under one interpretation almost any conviction may be unsafe. On the other hand, the noble and learned Lord the Lord Chief Justice argued with great eloquence at Second Reading that there was no merit in including in the test the words "or may be unsafe", since the implication of doubt is already inherent in the word "unsafe". He added that a conviction which may be unsafe is unsafe. "Or may be unsafe" would add nothing of value.

Although the test is expressed much more concisely than under the present law, we do not intend it to result in fewer convictions being overturned than at present. We want to consolidate the existing practice of the Court of Appeal and provide as simple and clear a test as possible. I hope that I may be forgiven for quoting once more the noble and learned Lord the Lord Chief Justice, who has said that the revised ground for allowing an appeal is,

    "clear, just, and comprehensible to the ordinary citizen".

I hope that the noble Lord is persuaded by these arguments and that he will seek leave to withdraw the amendment.

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