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Lord Campbell of Alloway: My Lords, there is little I wish to say in support of the amendment and in amplification of what the noble and learned Lord has just said. I am grateful to him for moving it. As some noble Lords may know, the origins were way back in the debates on the War Crimes Bill when the question arose that in every prosecution the application would be made if the indictment were laid. Undertakings were given that the law would remain as it has always been. I believe that my noble friend Lord Ferrers gave the undertakings that the accused would be able to apply. However, it would only be after conviction and after a long stayed trial. Therefore, the point was taken on a supplementary War Crimes Bill: ought there not to be a direct access to the Court of Appeal? After all, one avoids all the expense, it was unfair to the accused that he should be put in that position and it was merely importing the procedure from north of the Border where substantially the same principle applies as is proposed in Amendment No. 2.
Then, very properly, the noble and learned Lord, Lord Bridge, as regards this amendment, took up the point, "What about the Crown?". Noble Lords may think that the noble and learned Lord gave an authoritative and most interesting dissertation as to the problems of the Crown. These were remedied by the noble and learned Lord, Lord Lloyd of Berwick, but that had to be of temporary duration in the course of the interpretation of the Act. All that does not matter. What matters is that noble Lords should appreciate that the law is in the state where something ought to be done about it to put it back into the state where it could operate reasonably as between the Crown and the defence perfectly fairly without any form of abuse. If leave is sought, that is an effective safeguard against abuse. In my experience as an advocate, it is much more difficult to get leave out of the Court of Appeal than it is to win. I do not know why, but it seems that the standard demanded is very high. I mention that quite openly because my noble friend the Minister imagines, I truly believe, that even if this amendment contained the words "with leave", it would open up an avenue of delay and abuse. It would not.
The noble and learned Lord, Lord Bridge, made the point that, after all, a recordersomebody like myself before I became too old to do itor an assistant recorder, is a sort of qualitative judge who makes these decisions. The noble and learned Lord says that he hopes that the higher up the mountain one goes towards the apex, the less fallible one becomes. The answer to that is that once you are at the apex, there is nobody to tell you that you are fallible. So one can never really satisfy that point.
I do not want to take up the time of the House. I am very grateful to the noble and learned Lord, Lord Ackner, for having consented to put his name to this amendment. If my noble friend the Minister cannot give
Lord Lowry: My Lords, it seems a shame that your Lordships should have to put up with me twice in one afternoon, especially with the Test Match in progress. I rise to support the proposed amendment. My main, if not only, reason for speaking is that, of the two amendments, I much prefer the straight appeal, both on its merits and for a procedural reason which may not occur to all noble Lords.
This is the kind of amendment which, if it is adopted, would be enacted in Northern Ireland as well, where the procedure is exactly similar. The Crown Court in Northern Ireland is part of the Supreme Court. There is no provision thereand I certainly do not wish to see it introducedfor judicial review to go to the Crown Court. The main reason is that appeals from the magistrates' court are heard by the county court in Northern Ireland, and therefore it was not necessary to have a provision, as it was in this jurisdiction, so that the prerogative remedies of judicial review could go to the Crown Court in England despite its being part of the Supreme Court. I shall not go into detail, but that is one important reason why, if the amendment commends itself, I hope noble Lords will prefer Amendment No. 2 to Amendment No. 3.
Lord Ackner: My Lords, when this matter came before the House on 8th June, in a short and characteristic intervention I suggested that if leave was an obligatory requirement, then the anxiety about abuse and delay ought to be very largely mitigated. I am delighted to see that leave is now part of what is suggested in Amendment No. 2.
Another way of dealing with delay is, if and when leave is granted, that the application is expedited. That in itself will hurry along the proceedings. Otherwise we face the prospects of long trials going on and on and ultimately proving to be quite unnecessary because at an earlier stage a possible attempt to knock the whole proceedings out was not available. Those are my reasons for supporting the amendment.
Baroness Blatch: My Lords, the first of these new clauses would provide a right of appeal to either party against a decision of the Crown Court either to grant or refuse an application to stay proceedings on the grounds of abuse of process. At present there is no such right of appeal, although it is open to the defence to challenge a decision in the Crown Court on appeal to the Court of Appeal against conviction. There is no means of redress for the prosecution. The second new clause would make decisions on applications to stay proceedings subject to judicial review.
Until 1993 it was thought possible for both parties to seek judicial review of such a decision. However, in the case of Ashton, the House of Lords ruled that the High Court did not have jurisdiction to review those decisions as they were matters,
I can see the argument for providing a means of challenging decisions on applications to stay proceedings, but I remain convinced that the implications for the administration of justice in general outweigh the benefits that might result in a small number of cases. An extra stage would be added into the process, further delaying the trial. It might be open to exploitation by the defence, who could use such appeals as a delaying tactic. I do not believe that adding a leave requirement would negate these adverse effects. Indeed, if leave to appeal were required from the Court of Appeal, yet another hearing would be needed to consider the application for leave. The trial would still be delayed even if the application was worthless. Such delays are particularly undesirable where the case has already taken a considerable length of time to reach court.
An application to stay proceedings could be made at any time until arraignment. The length of time between arraignment and the start of the trial varies. In some cases they can start at the same time. If they are scheduled to start together and an application is made to stay proceedings, that will be heard in the absence of the jury and the trial will then proceedor not, as the case may be. If there is to be an appeal against the decision of the trial judge, that will inevitably delay the start of the trial. The proceedings will then have to be adjourned while a separate, and higher, court considers the appeal. Further delays are undesirable in principle, and particularly when the prosecution itself has been delayed.
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. 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 conviction. That, together with the consideration given by the trial judge to the question, on an application, whether a fair trial is possible, seems to us to provide 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 the trials.
In the light of those objections, I hope that the noble and learned Lord will withdraw the new clauses. But I noted how strongly they were presented to the House. Therefore, I await the response with bated breath.
Lord Bridge of Harwich: My Lords, I am a little surprised that the Minister did not feel able to go a little further than saying that it was at least arguable that it would be beneficial to the Crown to have a right of appeal. I cannot see any conceivable argument against it. One could say that traditionally the Crown has not been able to appeal against acquittals. I accept that in the case of acquittals by jury. But acquittal by a judge on a wholly erroneous view of the law ought to be subject to correction. I have yet to hear anyone suggest any opposition to that.
I have accepted that there would be some delay, but with compensating gains where appeal against refusal of a grant was successful. But as regards delay in giving a right of appeal to the defendants, the significant part of this debate, as in one of Sherlock Holmes' famous cases, was the dog which did not bark. This jurisdiction to seek leave to apply for judicial review, not a full-scale appeal to the Court of Appeal, existed for very nearly three years from the date of the decision in Randle to the date of the decision in Ashton. There is one other reported case in that period when leave was granted to apply for a judicial review and, in the event, it was unsuccessful.
However, if the courts had been inundated with vexatious applications to stay proceedings on the ground of abuse in those years, the noble Baroness would surely have been told about it by the Home Office. There must be statistics and records available about what happened and whether unreasonable delays occurred in the administration of justice in the period from the decision in Randle to the decision in Ashton from which your Lordships would be able to see at once that the jurisdiction causes great problems. But we have not heard a word about it. I have no anecdotal evidence of any such experience.