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Baroness Mallalieu: I support this amendment. It is one of 16 which include two new clauses. I am grateful to the noble Baroness. I received notice on Friday last week, when she kindly sent me a copy of the letter dated last Thursday which she had sent to the noble Lord, Lord McIntosh.

These provisions dealing with preparatory hearings, in relation to which this is the first of a group of amendments, command, I believe, universal support throughout the House. It is crucial to practitioners that these provisions should be clear, that they should not be complex, and that they should be flexible. It is very much our intention to scrutinise, with those who are concerned, not just this part of the Bill but also the amendments that arrived so recently. The fact that at present there are no amendments tabled on this side of the House does not necessarily reflect the position when we have had an opportunity to do that. So far as this amendment is concerned, it seems to be a very considerable improvement on the original drafting, and it has our support.

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On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 104:

Page 14, line 10, leave out subsection (2).

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Power to order preparatory hearing]:

Baroness Blatch moved Amendment No. 105:

Page 14, line 31, leave out ("and") and insert ("or").

The noble Baroness said: This amendment to Clause 22 is a minor amendment designed to improve the drafting of the Bill.

Clause 22(3) currently refers to a case of such seriousness and complexity as is mentioned in Section 7(1) of the Criminal Justice Act 1987. However, Section 7(1) of the Criminal Justice Act 1987 was amended by the Criminal Justice and Public Order Act 1994 (Schedule 9, paragraph 30) so as to substitute "seriousness or complexity" for "seriousness and complexity". Accordingly, this amendment replaces "and" with "or" in Clause 22(3). I beg to move.

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 agreed to.

Clause 24 [The preparatory hearing]:

Lord Bridge of Harwich moved Amendment No. 106:

Page 15, line 6, at end insert ("which shall include the question whether proceedings on the indictment should be stayed as an abuse of process").

The noble and learned Lord said: I had intended to say in opening at a much later hour, that I intended to be very brief because of the great volume of business that still confronted the Committee. Although it is not so late, I shall still try to be brief. This amendment is very simple. Parts III and IV of the Bill provide two new distinct procedures each of which would enable a trial judge to determine in advance of the trial certain issues even before the jury was empanelled. As I understand it, Part IV provides the appropriate procedure for the ordinary run-of-the-mill case where the judge's preliminary rulings on issues of law and questions of admissibility of evidence will not be subject to any interlocutory appeal.

Part III is quite different. It introduces generally a procedure at the moment only available in cases of complex fraud under the Criminal Justice Act 1987. It enables in a preparatory hearing preliminary rulings on issues of law and issues relating to the admissibility of evidence to be determined in advance of the trial (that is, before the jury is empanelled) and provides that those rulings shall be subject to appeal, and that the appeal will be finally disposed of before the trial commences.

The good sense of that procedure seems obvious. If a long and complicated trial is anticipated (it is primarily for long and complicated trials that the special Part III procedure is to operate) there are obviously great advantages in having a final and authoritative decision

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on issues of law--issues relating to admissibility--on which the whole trial may depend. If they are decided in advance, then everybody knows where they are. If they are decided after the trial by way of an appeal, the whole work of the long and complicated trial may have been wasted.

Some Members of the Committee may remember that during the last Session of Parliament at the Report stage of the Criminal Appeal Bill, I moved unsuccessfully an amendment that would have provided for an interlocutory appeal against decisions of a trial judge one way or the other as to whether or not proceedings on indictment should be stayed on the ground that they involved an abuse of the court's process. That amendment was defeated by 128 votes to 118.

The purpose of this amendment is very much more modest. It is simply to ensure that the interlocutory appeal which the Government themselves introduce in this Bill, applicable only in the special Part III procedure, shall extend from questions relating to admissibility of evidence and other questions of law to questions relating to whether an appeal should or should not be stayed as an abuse of the process of the court.

The advantages of having such an interlocutory appeal seem to me to be self-evident. If a judge wrongly determines that proceedings should not be stayed when in truth they should, an interlocutory appeal before the trial goes ahead will avoid the unnecessary expenditure of a lot of public money and the trauma that should be avoided to the defendant himself of having to stand trial in respect of some stale prosecution which ought never to have been brought so late. If, on the other hand, the judge wrongly grants the stay when no stay ought to be granted, in case of a stale prosecution--which is the principal case attracting a stay of proceedings on the ground of abuse of process--then that is a decision which certainly ought to be reversible; otherwise, the prosecution has no remedy. It is bad enough that we should have to see guilty men escaping conviction as a result of the perverse verdicts of juries. But it is quite wrong that we should tolerate in the current ethos in relation to these matters men escaping conviction on the basis of an erroneous judicial decision when a perfectly good remedy to that can be provided.

As I recall, the only substantive ground on which my earlier amendment to the Criminal Appeal Bill was resisted by the Government was that it would cause unnecessary delays and provide for an abuse by defendants who sought to delay proceedings by applying for leave to appeal when they had no prospect of obtaining it. Under the Part III procedure there is the safeguard of a requirement that leave should be obtained either from the trial judge or from the Court of Appeal before an appeal can be brought, so that the delay involved will be very small in any event.

Now that the Government themselves have introduced an interlocutory appeal in cases where the judge, under the special Part III procedure, has given

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a ruling on issues of law or issues of admissibility, I simply do not understand on what ground it can be said that a similar interlocutory appeal applicable to decisions relating to a stay on the ground of abuse of process should not be available. If it makes good sense to have such an interlocutory appeal so that the issues of law or admissibility can be finally disposed of before the trial proper begins in those cases, as the Government must suppose, then it makes equally good, if not better, sense that such an interlocutory appeal should be available in a case where the judge has either granted or refused a stay of proceedings on the ground that they are an abuse of process. I beg to move.

6.30 p.m.

Lord Campbell of Alloway: The object of the amendment, as explained by the noble and learned Lord, Lord Bridge of Harwich, is simple, sensible and self-evident. It is to allow the Court of Appeal, on appeal by the Crown or the defence, with leave of the judge of the Court of Appeal, to reverse the decision of the judge on an application to stay proceedings to avoid an unfair trial. Indeed, it is to introduce in England and Wales nothing other than a procedure akin to that which operates in Scotland, where the system works well and has not given rise to any unacceptable delay or abuse, to which the noble and learned Lord has just referred. At present, if the application in England and Wales is refused by the judge, there has to be a mistrial and a wrongful conviction before the Court of Appeal can reverse the erroneous decision of the judge. Hence, the justification--apart from the expense and trauma involved--for introducing this amendment.

It is appreciated that the amendment may well be doomed to founder on the rocks of mistaken ministerial preconception. The Government's settled objection has to be held against all comers and against all odds. On a Division, the steadfast, standby infantry, some at their ease in their guardroom, will be mustered to guard this citadel under the banner "Ours is not to reason why". Well, there it is. But will the amendment founder? A similar amendment, to which the noble and learned Lord referred, in the Criminal Appeal Bill, was only just lost by a small margin. Many strange things happen in this Chamber when noble Lords are able to attend and listen to the argument.

Four objections were raised in a letter dated 14th December which I received from the Home Office. The first was:

    "You may recall that we resisted similar amendments during the passage of the Criminal Appeal Bill. The Government is extremely keen to prevent unnecessary delays in criminal trials".
If delay is considered to some degree necessary in Scotland, why should it be unnecessary in England if it avoids a mistrial and a wrongful conviction?

The second objection in the letter was:

    "The defence could use such appeals as a delaying tactic".

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There has been no abuse by exploitation in Scotland. Why should there be such abuse in England and Wales?

The third objection raised in the letter, in Home Office language, was:

    "The implications of an appeal could be particularly significant because it would cast doubt upon whether or not the trial would go ahead"--
that is rather obvious, anyway--

    "and so all work relating to the trial would be likely to be suspended pending the outcome".
As any practitioner knows, such an application cannot be made by the submissions of counsel unless all the preparatory work of the trial has been conducted by both the Crown and the defence. One cannot make submissions unless the cases are known and prepared.

The last objection was:

    "We believe the correct way for the defence to challenge a refusal to grant an application to stay proceedings is on an appeal against conviction".
That belief ignores the expense and the injustice of a mistrial in which there has been a wrongful conviction.

The substance of the amendment of general application has already been accepted by the Chamber as applicable to proceedings under the War Crimes Act. It is common ground in another place and between the two Houses that those trials under the War Crimes Act must be fair trials. So it may not be assumed in any event that, if this amendment were carried into the Bill, it would be rejected by another place.

I commend the amendment, to which I have put my name, to the Committee and thank my noble and learned friend for having introduced it so elegantly.

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