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Lord Rodgers of Quarry Bank: My Lords, I am grateful for what the Minister said. I wish to reflect upon it. In her letter to me she referred to a sensible non-statutory arrangement and I understand that that is what she still has in mind. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Introduction]:

Baroness Blatch moved Amendment No. 83:


Page 13, line 6, leave out from ("relation") to end of line 13 and insert ("to an offence if--
(a) proceedings for the trial on the charge concerned are transferred to the Crown Court on or after the appointed day, or
(b) a bill of indictment relating to the offence is preferred on or after the appointed day under the authority of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill preferred by direction of Court of Appeal, or by direction or with consent of a judge).
(1A) References in subsection (1) to the appointed day are to such day as is appointed for the purposes of this section by the Secretary of State by order.
(1B) If an order under this section so provides, this Part applies only in relation to the Crown Court sitting at a place or places specified in the order.").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 2.

On Question, amendment agreed to.

Clause 24 [The preparatory hearing]:

Lord Bridge of Harwich moved Amendment No. 84:


Page 14, line 8, at end insert ("which shall include the question whether proceedings on the indictment should be stayed on the ground that they are an abuse of process").

The noble and learned Lord said: My Lords, Part III of the Bill introduces a preparatory hearing procedure which is modelled on a similar procedure already on the

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statute book under the Criminal Justice Act 1987, but under that statute it is only applicable to serious fraud cases.

Now Part III would give to a trial judge before any criminal trial a discretion to order a preparatory hearing and consequently to make available to himself the special powers which are operative under a preparatory hearing in any case where, by reason of the length or complexity of the anticipated trial, he saw advantages in so doing, for certain defined purposes.

Once the trial judge has ordered a preparatory hearing, he then has power in the course of that hearing to make rulings in relation to any question as to the admissibility of evidence or any other question of law relating to the case. Once he has made such a ruling, the ruling becomes subject to an interlocutory appeal: in the first instance to the Court of Appeal under Clause 28 and, if necessary, on to this House in its judicial capacity under Clause 29. Both clauses make specific provision that the appeal is to be finally determined before a trial begins.

It appears to me that the philosophy underlying that scheme of preliminary rulings, made in a case where a long and difficult trial is anticipated, and the provision that they be subject to interlocutory appeal before the trial begins, serves the end of ensuring that there should be no miscarriage of justice and no abortive trial by reason of a judicial error which could have been corrected in the first place.

The sole purpose of my amendment to Clause 24(3) is to enlarge the ambit of the judge's power to make rulings in the course of the preparatory hearing; and consequentially to render subject to the provisions for interlocutory appeal to the Court of Appeal, and possibly on to the House of Lords, any decision by a judge as to whether or not proceedings on an indictment should be stayed on the ground that they are an abuse of the process of the court.

I accept that in general terms interlocutory appeals are undesirable in criminal cases. They may occasion delay. Worse still--even if, as here, leave to appeal lies only with the judge or the Court of Appeal, they may provide an opportunity for abuse of the procedure by a defendant who wants to occasion unnecessary delay if he can. That I perfectly well understand and agree with.

It appears that any delay arising from an interlocutory appeal, where a long and difficult trial is anticipated, is a price worth paying in order to ensure that disputed questions of law which will arise in any event, and questions as to the admissibility of evidence, are rightly decided before the trial begins. So, equally, it is a price worth paying in order to ensure that any decision as to whether the proceedings should be stayed as an abuse of process will be rightly decided at the beginning and before the trial starts.

In order to make good that proposition, I invite the House, and in particular the Minister, to consider a hypothetical example. A defendant is indicted for a murder that he is alleged to have committed 20 years ago. The trial judge, foreseeing a very long and difficult trial, orders a preparatory hearing under Part III of this

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Bill when it is on the statute book. At the preparatory hearing the defendant raises two contentions. One is that the central piece of evidence, vital to the prosecution's case against him, is inadmissible. The other is that, because the trial has been so long delayed, he can no longer receive a fair trial and, accordingly, invites the judge to stay the proceedings on the ground that they are an abuse of process.

If the judge wrongly decides either of those questions in the defendant's favour, when they ought to be decided against him, it means that a man who ought to be tried will escape trial altogether. There is nothing that the prosecution can do about it. That is to say, that would be the case were neither issue subject to interlocutory appeal. If neither issue were subject to interlocutory appeal, and the judge decided both issues in favour of the Crown and against the defendant, if the judge was wrong the ruling would result in an abortive trial. If the trial led to conviction, it would eventually lead to the conviction being quashed by the Court of Appeal.

Unless my amendment is carried, the worst situation of all would be this. The judge has decided both issues against the defendant at the preparatory hearing and there is an interlocutory appeal on the question of admissibility of evidence. The defendant takes his case to the Court of Appeal, but fails there; the court says that the crucial evidence is admissible. Because he cannot, unless my amendment is carried, appeal the judge's ruling that the case should not be stayed on the ground of abuse, that is not appealable. Then there is a long trial, at the end of which he is duly convicted. There is a second appeal to the Court of Appeal--which says, no, the judge was wrong, he ought to have stayed the proceedings as an abuse of process.

I outlined this hypothetical example (in rather less detail) in correspondence to the Minister following Committee stage. I hope, in replying, she will address the example and tell us, in the light of it, how it makes sense for the Government to say that there can be an interlocutory appeal in one case but there should not be one in the other. I understand that to be the Government's case. I beg to move.

5.45 p.m.

Lord Campbell of Alloway: My Lords, there is no way in which this amendment could distress the tattered fabric of relationships between my right honourable friend and the judiciary, which is in urgent need of repair. The amendment is devoid of any political significance. In the battle of the slogans, it is neither tough nor soft on crime, and may not be so described. It is in no way concerned with judicial discretion on sentencing. The irenic purpose is to persuade, not to confront. As yet, all attempts to persuade have failed. The opinion of this House will be sought on the merits of the argument. If in favour of this amendment, it can but serve as a powerful source of persuasion.

Since another place has not, as yet, considered this Bill, the opinion of your Lordships would be advisory and without hint of confrontation. If the merits of the argument commend themselves to the House, why not?--they may well commend themselves to another

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place. If not, on a matter such as this the House would never dream of seeking to insist that there is no element of confrontation. Such is the reality of the situation in which your Lordships' support for this amendment is sought, notwithstanding the customary measures of exhortation which government Bills inevitably attract.

As to the merits, the noble and learned Lord, with his wealth of practical expertise--advocate, red judge, member of the Court of Appeal and Member of your Lordships' Appellate Committee--commends the amendment as a sensible, requisite and procedural contribution to the due administration of justice, affecting not only public perception but the interests of the prosecution, the defence and the victims of crime. Your Lordships may well feel that the speech of the noble and learned Lord bears the hallmark of authority. The logic of his analysis to which a response is sought is not based upon any abstract esoteric process of reasoning but upon sound straightforward common sense.

As to the justification, is it not, in the simplest of terms, that it invokes an appellate procedure to rectify a wholly unsatisfactory situation, a situation in which, if an application to stay is rejected in error, a trial takes place which should never have taken place, and, if granted in error, a trial which ought to have taken place can never take place, as in such circumstances as the noble and learned Lord explained? The error may be corrected before substantive trial as regards any question of admissibility of evidence or any question of law. Why exclude the application to stay on grounds of abuse?

The effect of the amendment is none other than to introduce a procedure akin to that which obtains in Scotland. If my noble and learned friend the Lord Advocate were present, no doubt he would confirm that the procedure in Scotland is entirely satisfactory and occasions no unacceptable delay or tactical abuse. Indeed, as appears on the official record, the principle of the amendment has already claimed the sympathetic approval of my noble and learned friend the Lord Chancellor, albeit in another context. I am not aware that the amendment is opposed by any noble and learned Lord, any other member of the judiciary or any member of the legal profession.

This Bill is of general application, save as regards the serious and complex fraud cases to which the noble and learned Lord referred and which reflect similar provisions. As it is of general application, it would apply to proceedings under the War Crimes Act to avoid wrongful conviction on an abortive trial which ought not to have taken place, a matter--I stress this point--on which both Houses have made common cause. I am delighted to see the noble Lord, Lord Mishcon, in his place as it is a matter on which he addressed your Lordships, namely, the subject of a fair trial. Indeed, my noble friend Lord Ferrers gave an assurance on such matter to your Lordships' House.

Perhaps I may remind your Lordships that to that end your Lordships accepted the substance of this amendment under Clauses 2 and 3 of the War Crimes (Supplementary Provisions) Bill. To that extent, this amendment of general application would subsume those

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provisions already accepted by your Lordships. The Bill inevitably is at rest in the graveyard of another place. It is opposed by the Government.

Since Committee stage, the sands of objection have shifted to reveal an entirely new ground. But at this stage, it would be wrong to anticipate. To conclude, under the Royal prerogative, as exercised by Her Majesty's judges, the power to stay proceedings for abuse of process was assimilated by the common law as part of the inherent jurisdiction. Long before there was a Court of Appeal or an Appellate Committee of your Lordships' House, although your Lordships' House sat as a forum of appeal, that court of appeal was set up by statute. However, the statute fettered the appellate jurisdiction so as to prevent any review before conviction. This Bill proposes to remove that fetter in other respects, to which the noble and learned Lord referred, in order to avoid abortive trials.

The true and disinterested administration of justice is no exact science. Sound practical procedures such as are proposed by this amendment, your Lordships may think, are wholly requisite.


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