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Lord Williams of Mostyn: My Lords, before the Minister sits down and the noble and learned Lord replies, perhaps I can ask a question. How is it sustainable as the Government's position that the orders made on preparatory hearings must be final, when one sees in Clause 24(11) the specific contrary? The clause states that:
Secondly, if the attorney and director both say that there may be a significant number of appeals against rulings in applications in respect of abuse of process, does not that abundantly underline and confirm the importance of the amendment?
Baroness Blatch: My Lords, with the leave of the House, the examples I gave about finality refer to admissibility of evidence and points of law. What we are saying about an appeal for stay of proceedings on the basis of abuse of proceedings is that it is an application that can be made at any time during the process of the trial. Even if the application is not granted, it is open to the accused or to the accused's lawyer to continue, especially if circumstances change
Lord Williams of Mostyn: My Lords, I do not want to take up the time of the House or to trespass on the patience of your Lordships, but there is no finality about a ruling on admissibility of evidence or a ruling on any other question of law because Clause 24(11) specifically allows for it to be reviewed. That is not final; that is reviewable.
Baroness Blatch: My Lords, I am resting the Government's case on the balance with regard to allowing for interlocutory appeals at preparatory hearings on the particular issue of a stay of proceedings on the basis of abuse of proceedings. We have taken the view that the delay and the possibility of abuse of proceedings far outweigh giving in to this amendment. On that basis, I rest my case.
Lord Campbell of Alloway: My Lords, before the noble and learned Lord, Lord Bridge, replies, perhaps I may ask my noble friend one question. In her speech she referred to extending the preparatory hearing to all sorts of circumstances, such as severing the indictment and so on and so forth. Does she not appreciate that this is a limited extension in like circumstances to admissibility of evidence or a question of law? It is not extending; it is strictly limited. A distinction has not yet been drawn logically between the question of admissibility, a question of law and the substance of this amendment.
Baroness Blatch: My Lords, I understand what my noble friend is saying. He is right as it relates to the particular amendments that are being pressed by my noble friend and by the noble and learned Lord, Lord Bridge. I know that it is not their intention to extend it beyond that. The point I was making is that it would seriously weaken the case for allowing other grounds for interlocutory appeals if the amendment were accepted.
Lord Bridge of Harwich: My Lords, the noble Lords, Lord Williams of Mostyn and Lord Campbell of Alloway, have already replied to two of the points made by the Minister in support of the Government's opposition to the amendment. That saves me from making similar replies. What is left of the points is that the amendment is objectionable because a decision whether or not to stay proceedings on the ground of abuse of process is not necessarily final and is not necessarily made before the trial.
I should have thought that in the vast majority of cases an application to have proceedings on indictment stayed on the ground that they are an abuse of process would be made before the trial. Of course it is only such decisions which my amendment would bring within the ambit of the preparatory hearing and only such decisions as would become subject to interlocutory appeals under Clauses 28 and 29. The only ground I apprehend on which a further
Turning next to the case law to which the Minister referred, of course that is a set of decisions. I have looked at them all--all of the cases to which the Minister's advisers have drawn my attention. They are a set of decisions on the existing provisions in the Criminal Justice Act. It is true that the relevant provision corresponding to Clause 24(3) of the Bill is in the same terms. But they are decisions on the construction of that provision unamended. I am not in the least surprised that the courts have construed that provision narrowly. Indeed, the first position was that a decision on an application to stay proceedings on the ground of abuse of process was not a ruling as to any other question of law relating to the case under the corresponding provisions of subsection (3)(b) of the Bill. That is no doubt quite right. The language is not apt. But those cases do not throw any light on the merits of this amendment.
I cannot help wondering whether the Minister's advisers--who can blame her for depending on her advisers; it is only right that she should do so--are not attaching far too much importance to what they have read in decided cases. It is a habit some lawyers have that anything one can provide a specific authority for must be right if it saves one the trouble of trying to think out the general principle applicable.
Baroness Blatch: My Lords, I am most grateful to the noble and learned Lord. With the leave of the House, perhaps I may put a question to him. If, for the sake of my hypothesis, I cited the case that was put by the noble Lord, Lord Williams, and that fell outside preparatory hearings' territory, what is the case for saying that an application made in a preparatory hearing should carry with it the right of appeal--an interlocutory appeal--when the same application may have been made and a stay granted but there is no right of appeal? There seems to me to be a logic in the generality of cases but not a logic for it applying only in preparatory hearings. I think I know, underlying what the noble and learned Lord is saying, that he would prefer it to be applied in the generality of cases. But then one really does open it up to being available generally. I cannot see the distinction between allowing for an interlocutory appeal for preparatory hearings only and not for the generality of cases. In the generality of cases we would have a stronger case for saying that the scope for abuse was even greater.
Lord Bridge of Harwich: My Lords, the ground for distinction is precisely the same as the ground for distinguishing between preparatory hearings which lead to interlocutory appeals with reference to questions of admissibility of evidence and questions
As I said in commending the amendment initially, the object is to ensure that there are no miscarriages of justice and no abortive trials brought about through judicial error which could have been corrected. In the ordinary run of cases the objection to interlocutory appeals in criminal trials on the ground of the delay that they are capable of causing outweighs any advantage to be derived from having preliminary issues finally and authoritatively settled before the trial begins. But that consideration is in turn outweighed in the exceptionally long and complex case which in the judge's discretion has earned an order that it should be the subject of preparatory hearing. The whole scheme of rulings subject to interlocutory appeals in relation to questions of law and questions of admissibility can only be designed to ensure that those questions are rightly decided at the outset.
I found nothing in the case law, adopting a narrow construction of the corresponding provisions in the 1987 Act, which in any way bears on the merits of the present proposed amendment. There is an exception as regards one observation in one case, which I believe must have influenced the Minister's advisers. She said several times in her reply that the primary purpose of the preparatory hearing procedure was to ensure the satisfactory management of the case. There is a decision of the Court of Appeal--I do not quarrel with what was decided--where some of the observations of one of the Lord Justices, in the course of delivering judgment, suggest that the whole of the preparatory hearing procedure is in some way subject to the purposes set out in Clause 22(2), which the Minister referred to generally as referring to the management of the case, and quite rightly.
A number of the powers exercisable by the judge in a preparatory hearing are designed to enhance the management of the case, to define and narrow issues and expedite the trial. The whole scheme as regards rulings as to admissibility, questions of law and making those rulings subject to interlocutory appeal, which will be finally decided before the trial begins, have nothing to do with the management of the trial. They are designed, and can only be designed, to ensure that those issues are rightly decided before the trial begins.
In my submission, precisely the same considerations apply to the desirability that when an application to stay on the ground of abuse is made at the outset it should be rightly decided, if necessary, on appeal before the trial begins. I am not wholly surprised to note that the Minister did not feel able to respond to my specific invitation to address my hypothetical example and the difficulties which will arise if there is a right of interlocutory appeal in one case, but not in the other. In those circumstances it is right to seek the opinion of the House.