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After Clause 1, insert the following new clause:

("Applications to quash indictments appeals

. Where an application is made, on or before arraignment, to stay proceedings on indictment on the ground that they are an abuse of process, an appeal shall lie to the Court of Appeal (Criminal Division) from any decision of the Crown Court granting or refusing the application by leave of the Crown Court or of the Court of Appeal (Criminal Division).").

The noble and learned Lord said: My Lords, in moving the amendment, I wish to speak also to Amendment No. 3. The two amendments are alternative to each other. I shall say a few words a little later about the relatively minor differences in their practical effects. Either amendment addresses the problem which arises when a defendant to an indictment seeks a stay of proceedings on indictment on the ground that the prosecution is an abuse of the process of the court.

Far and away the most common and most significant ground on which such a stay is granted is that there has been such delay as to cause prejudice to the defendant in the conduct of the defence or to make a fair trial impossible. As your Lordships know, in criminal trials on indictment there is no applicable statute of limitations. Therefore it is only the exercise of this abuse of process jurisdiction in appropriate cases which provides any safeguard to the citizen against being unreasonably prosecuted for something which happened a long time ago.

Since the issue raised when such a stay is sought goes to the fairness of the trial, the question which has to be determined is always a serious one, often a difficult one. The judge will often have to weigh in the balance different and conflicting considerations. He will normally hold a preliminary hearing and decide the issue whether or not to grant a stay. The law used to be that whichever way the decision went, it could be challenged by way of judicial review. But that law has now been reversed and it is to that situation that my amendments are addressed.

Perhaps I may explain in a few words how that situation has arisen. The jurisdiction of the Divisional Court by way of judicial review was first invoked on an

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application for judicial review of a judge's refusal to grant a stay of proceedings on indictment in a case called Randle in 1990. Your Lordships may remember the case. It was the case of the two men who in the late 1980s had had published a book describing how they had engineered the escape of the notorious spy, George Blake, from prison back in the 1960s. Perhaps not surprisingly, they then found themselves in the dock at the Old Bailey. But they made an application saying that to prosecute them after so many years would be an abuse of the process of court. The trial judge refused it.

They then obtained leave to seek judicial review. A distinguished Divisional Court was presided over, if I remember, by my noble and learned friend Lord Lloyd of Berwick—Lord Justice Lloyd, as he then was. No, I have gone a step too far. It was not my noble and learned friend Lord Lloyd who presided over Randle. It was Lord Justice Watkins. I am so sorry.

In 1990, the court held in Randle that it had jurisdiction to entertain the application for judicial review. But on the merits it was refused. Therefore it was that case which for the period of the next three years established the law that a decision either way by a judge of the Crown Court to grant or withhold a stay of proceedings on this ground was subject to judicial review.

It is three years later that we come to the case involving my noble and learned friend Lord Lloyd of Berwick. It was a case called Ashton. It was a case of conspiracy. It had taken some considerable period of time to identify all the conspirators and to assemble the evidence against them. When an application was made to stay the proceedings on the indictment against the conspirators on the ground that the delay amounted to an abuse, the circuit judge was persuaded to grant a stay. This time it was the Director of Public Prosecutions who exercised the right to seek an application for judicial review against that decision. This time it was my noble and learned friend Lord Lloyd, presiding in the Divisional Court, who said that the judge's decision had been clearly and demonstrably wrong and overturned it.

It was then that the matter came before your Lordships' House on appeal, not on the merits but on the technical issue of the jurisdiction of the Crown Court to entertain an application for judicial review in those circumstances. The governing statute was, and indeed presently is, Section 29(3) of the Supreme Court Act 1981. That provision in terms excludes the jurisdiction to grant judicial review in relation to any decision made by the Crown Court,


    "in matters relating to trial on indictment".

In your Lordships' House—I was a party to the decision—faced with that clear language we felt obliged to decide, and indeed when the matter came to your Lordships' House the DPP felt obliged to concede, that a decision granting or refusing a stay of proceedings as an abuse of process was a decision relating to trial on indictment. That decision was given in February 1993. It was, it seems to me, clearly right as a matter of the construction of Section 29(3). However, it had most unfortunate consequences. The first and obvious one was that the conspirators, if such they were, went free and there was absolutely nothing that the Crown could

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do about it. In my submission, that is an unsatisfactory state of the law and one which one or other of my amendments seeks to remedy.

However, I invite your Lordships to consider separately the position of the Crown when a stay is wrongly granted, on the one hand, and, on the other, the position of defendants when a stay is said to have been wrongly refused. To give either a right of appeal or to restore a right to seek judicial review when the Crown wishes to do so upon the grant of a stay by the Crown Court judge who is alleged to have got the matter wrong would be, in my submission, entirely in line with the modern approach to conferring an appellate jurisdiction on the court to remedy errors which have operated unjustly and wrongly in favour of the defendant.

If a judge now misdirects a jury and it wrongly convicts, the Court of Appeal is not obliged simply to allow an appeal. It may also order a retrial. If a prisoner is now inadequately sentenced, the Attorney-General may invite the Court of Appeal to increase the sentence. Of course, it is true that if a defendant is wrongly acquitted by a jury following an unduly favourable direction given by the judge in his favour, then all that can happen is that an Attorney-General's reference can be brought in order to correct the error of law but the defendant cannot be retried. I apprehend that that is because of our deeply rooted sense that once there has been an acquittal by jury, that must be the end of the matter. However, I cannot see any possible ground on which anyone could resist the proposition that when a judge has made a total error in granting a stay of proceedings on indictment, where no such stay should have been granted, the decision ought to be open to correction by a higher court.

I emphasise that leave would be required in either case. I anticipate that it is only when we come to the effect of a defendant being given the right to seek leave, that it will be said that no such right should be granted. A defendant who unsuccessfully seeks a stay and who is eventually convicted by the jury then has his right of appeal. As I understand it, the whole ground on which either amendment will be resisted is that it would introduce an unnecessary element of delay.

There are two scenarios to be considered. First, it may be said that if the jurisdiction were conferred on the court some defendants would exploit it for the purposes of delay. That presupposes that applications for leave either to seek judicial review or to appeal, as the case may be, when the judge had refused a stay, would be made purely for the purposes of delay. That in turn presupposes counsel acting in an irresponsible way. I trust and believe that that would happen only in the rarest cases, but when it happened leave would clearly be refused and the delay need only be minimal.

The more serious question arises in relation to the case where there is an arguable issue as to whether the delay has been such as to preclude a fair trial. My primary submission to your Lordships in those circumstances is that if in truth no fair trial is possible, the justice of the case requires that the defendant should not have to undergo the trauma of standing trial. But even if that is not accepted, one must look at the balance of advantage in relation to the two further possibilities

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that arise. The possibilities which arise when a seriously arguable case is brought before the court and the court is asked to give leave either to appeal or for an application for review, are these. The first is where leave is granted and the appeal is eventually dismissed. I have to accept that in those circumstances some perhaps quite substantial delay will occur which would not have occurred if the jurisdiction had not been conferred on the court.

On the other hand, we also must consider the second case where leave is granted and the appeal is allowed. In the nature of the case, long delayed prosecutions are liable to generate long trials. So whatever the disadvantage in the case where leave is granted and an appeal is eventually dismissed so that the trial proceeds, I submit it is to a significant measure offset by the advantage that would be gained in the case where the appeal is allowed. At the price of perhaps one, two or three days' hearing in the Court of Appeal or the Divisional Court, the time and costs involved in a trial perhaps lasting for many weeks will be saved.

Judges are fallible. I should be the first to recognise that they are fallible at every level of the judicial hierarchy. However, I like to think that the nearer one gets to the apex, the less the possibility of error. We are considering decisions of great importance which will be made on some, perhaps many occasions by the lowest—I use the word in no pejorative sense—tiers of the judicial hierarchy, the assistant recorders and recorders. I submit that it cannot be right that a decision on such an important matter, made by a judge of that standing, should be beyond challenge.

I am sorry to have taken so long but I shall conclude with a few words on the difference in effect between the two alternative amendments which I advance. Leave would be required in both. If the first amendment were approved, leave could be given by the judge in the Crown Court as well as by the Court of Appeal (Criminal Division). In the second amendment, it could only be given by the Divisional Court. In the Court of Appeal, the case would come before three judges, in the Divisional Court it might come before two or three. In either case, the court would be presided over, if not by the Lord Chief Justice then by a Lord Justice of Appeal. There is a theoretical difference in the scope of the challenge and the grounds which could be advanced. However, in the circumstances I believe that it would not be a practical difference. Theoretically, the Court of Appeal can allow appeals on wider grounds than the Divisional Court can allow judicial review. But here, having regard to the nature of the decision made by a judge granting or refusing a stay of proceedings on indictment, it seems to me that either the judge would have made an error of law or he would not. If he did, it would enable the higher court to interfere in all cases. Or he may have unreasonably exercised a discretion which again would allow the higher court of both characters to interfere.

The reason I put the alternative amendment down is that it puts the law back to where it was and where it appeared to be quite happy for three years before the decision in Ashton. My belief is that since it would

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undoubtedly be an application relating to trial on indictment, an interlocutory application, the logical course is to grant a specific right of appeal to the Court of Appeal (Criminal Division) exercisable only with leave in the special circumstances which arise in the case which the amendments address. I beg to move.


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