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Lord Thomas of Gresford moved Amendment No. 132K:

The noble Lord said: I am most grateful to the noble and learned Lord for his exposition of what he has set out in a letter which, I regret to say, has not come to my attention. Whether that is my fault or somebody else's, I do not know. It being the case that the Government propose to amend these provisions radically, as it seems from what the noble and learned Lord said, I shall be brief going through these amendments.

I am concerned to tighten, not to extend, the sort of appeals that can be brought by the prosecution. The noble and learned Lord referred to the distinction between terminating rulings and other rulings. Terminating rulings mean, without any question, an acquittal. If a person is acquitted on a particular charge, he is entitled to be discharged and that is the end of it. If the prosecution is to challenge that terminating ruling, when, in effect, a person has been acquitted, it should be within very strict parameters.

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The purpose of Amendments Nos. 132K, 132L and 133A—the latter refers to the other sort of rulings—is to limit the right of an adjournment to consider an appeal to seven days and also to make it quite clear, so that there should be no question about it, that there will be no application to extend that time by the prosecution. It is "make your mind up time" as far as they are concerned, and if they do not make their mind up within the seven days, the acquittal of the defendant should stand, as would any ordinary acquittal. This is the introduction of a new principle into the criminal justice system. At the very least, that sort of limitation should be introduced.

I shall be saying more about tightening up these clauses when we come to later amendments. I beg to move.

Lord Kingsland: We have amendments in groups 3 and 4 which would have the same effect as those of the noble Lord, Lord Thomas. For reasons of economy of time, I would like, respectfully, to adopt the arguments that the noble Lord has deployed in support of his own amendments in support of ours.

I was most grateful to the Attorney-General for his opening remarks, putting Part 9 in the context of the whole Bill. Will he indulge me by allowing me, in turn, to ask him some general questions about the philosophy that lies behind Part 9? I assure him that I shall be extremely brief in my observations and questions.

My first question is, what is the mischief that the Government are aiming at in Part 9? Is there a suspicion in their mind that judges on the criminal circuit are, in some way or other, pro-defendant? Or is there some other reason for wanting to introduce these proposals? I ask that question not only on its own merits but because the proposals in Part 9 have significant implications for the resources of the Court of Criminal Appeal. If there is no real mischief, what on earth is the point of making it even more difficult to get a case in front of the Court of Criminal Appeal than it is already? I understand that the delays in court for normal appeals run to about 15 to 18 months.

It is also quite clear that these new provisions will not only involve delay in themselves but will imply delay in the hearing of other totally unrelated criminal appeals. My supplementary question, in essence, is: if the Government really think there is a mischief, is solving it worth the cost that the criminal appeal system will have to bear?

My next question arises out of the remarks the noble and learned Lord made to your Lordships' House a little earlier about prosecution appeals against non-terminating decisions by judges. I am most grateful to the noble and learned Lord for writing to me in the way that he did; it was enormously useful in helping me to prepare for today's proceedings. But one issue that continues to lie fallow, following his letter, is whether or not there should be reciprocal rights for the defendant. If the prosecution can appeal against a non-terminating decision by a criminal judge, why cannot the defendant have the same rights of appeal?

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That, surely, is the principle that lies behind the notion of equality of arms, about which so much is spoken these days by human rights lawyers.

It also seems to me to be an issue of fundamental fairness in the conduct of criminal trials. If the prosecution can appeal, why cannot the defendant? I know the noble and learned Lord is still considering these matters, as he prepares his amendments for Report. He may already have this issue well in mind. But I thought it only fair that I should draw his attention to the point at this juncture so that he can reflect on the matter, if he feels it is worth while, over the summer adjournment.

Lord Lloyd of Berwick: I, too, am very interested in what the noble and learned Lord had to say in respect of his proposed amendments to Part 9, which seem to raise all sorts of rather different questions from those that I thought would be raised. I hoped that I might be, as it were, cut in on anything going on these amendments, along with all those who took part in the Second Reading debate—even those who would have taken part if they had not happened to lose their voice on the occasion in question.

Lord Goldsmith: I paused before rising simply because I see the noble and learned Lord, Lord Ackner, in his place. Amendment No. 133, which is in this grouping, is in his name, and I did not know whether the noble and learned Lord planned to speak to it. If he did, this might be an appropriate moment for him to do so, before I respond.

Lord Ackner: As your Lordships see, the amendment, on the face of it, would merely change "must" to "may". That sounds an innocent amendment and, indeed, coming from me, it is, as your Lordships would expect, an innocent amendment. But for once, I do not have to ask your Lordships to rely on what I say because this is what is to be found in the memorandum deposited by the Lord Chief Justice which has the imprimatur of not only the Lord Chief Justice but all the other senior Lords Justices who deal with crime. Their point is: why should the judiciary not have discretion? All this vaunted underlining of the independence of the judiciary looks a little odd when you suddenly find "must" where, clearly, there should be judicial discretion. That is the limited and simple nature of my amendment, and I hope it will commend itself to the Attorney-General.

2 p.m.

Lord Goldsmith: I plan to respond briefly first to the general questions asked by the noble Lord, Lord Kingsland. That may assist in understanding the nature of the provision we are discussing. The noble Lord asked what was the mischief at which the Government aim. Is there a suspicion that Crown Court judges are pro defendant? I unhesitatingly answer that latter question by saying, "Certainly not". But that does not mean that on occasion they may not make an error in the judgments that they reach, particularly errors of law in certain circumstances.

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I sent a letter to the noble Lord, and I believe that a copy has now been received in the Chamber at least by the noble Lord, Lord Thomas. I hope that the other copy will be discovered in his Chambers or at some other address. A copy is in any event in the Library but I shall also ensure that copies are sent individually to all Members of the Committee who participate in today's debate. That identifies by way of examples the kind of case where the measure we are discussing may apply. I wish to take a few moments to identify one or two of them without going through the detail just to give an idea of the circumstances in which the matter can arise.

There will be cases where a judge will make a ruling that there must be an acquittal and so directs the jury, or he grants a stay of the proceedings which is in effect final, or where the ruling is so damaging to the prosecution's case that they cannot continue. That case will come to an end at that stage without the matter ever going, as it were, on its merits to the jury to decide. If he makes an error in his ruling against the defendant, the defendant will have the opportunity to appeal, should the jury convict him, after the trial. But the prosecution has no such right. There is no way of testing whether or not that ruling was correct.

I give an example, referring to Case 2 in the list. Several defendants were acquitted on charges of conspiracy to defraud on a large scale. There was then a further prosecution of a further conspiracy to defraud. That had been severed from the original conspiracy quite deliberately by the court because it thought that dealing with all of the cases together would be too much for the jury. As I say, the further prosecution was deliberately severed so that it could be tried later. When it came to be tried, the trial judge ruled that it should not be allowed to go ahead on the grounds that it was an abuse of the process. Therefore, the defendant was acquitted on those counts. There was no possibility for the prosecution to test that ruling by the learned judge in another court.

I give another example, Case 9, where a man charged with attempted murder of an hotelier was found with the victim's blood on his boots and trousers. He admitted being at the scene. But at the close of the prosecution case the trial judge invited the defence to make a submission of no case to answer and then upheld it.

Some of these cases are cases where there has been what is known as an Attorney-General's reference; that is, a reference by the Attorney-General on a point of law to the Court of Appeal where the Court of Appeal has actually said that the judge below was wrong. But as it stands at the moment, such a ruling has no effect upon the acquittal that has taken place. One such case—Case 11—was a detailed case of a man charged with attempted rape. The evidence was that householders were disturbed by noises. The complainant was found with her underwear round her ankles and, indeed, the defendant was found with his trousers round his ankles. He was kneeling near her. When asked what he was doing, he replied, "What do you think?" He was asked whether the girl had agreed to have sex with him. He replied, "I do not know; I did not ask her". There was bruising on his and her genitals. The trial judge stopped the case and

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acquitted the defendant on the basis that the prosecution had to prove that the defendant had physically attempted penetration, and it had not done so. The Court of Appeal said on a reference that the trial judge was wrong and there was plainly evidence from which the jury could infer what had taken place. But notwithstanding that ruling, there was no possibility of the case being restored.

I refer to another example which concerns the other category of case; that is, the ruling where the prosecution has to stop the case. Case 13 is also an Attorney-General's reference case. The Committee will recall the circumstances. A DNA match was made in relation to DNA taken from a rape victim with a DNA sample that had been taken from someone previously acquitted of burglary. The police had not destroyed that DNA sample. The Committee will know of the circumstances because we have considered the consequences of the ruling that subsequently emerged from the House of Lords that notwithstanding that the sample should not have been retained, it was admissible in evidence. The trial judge had ruled that it was not admissible in evidence. The result was that there was not evidence upon which the prosecution could proceed. The man was acquitted although the House of Lords subsequently said as a matter of law, on the law as it stood, the evidence was admissible and the prosecution could have gone ahead.

I hope that those examples indicate that this has absolutely nothing at all to do with any suggestion or belief that trial judges are anything other than objective and even-handed as between prosecution and defence, but occasionally they may make errors. One circuit judge, when told that the Court of Appeal had reversed his judgment, said, "That is what they are for". It is what the Court of Appeal is for and occasionally it reaches a different view. We seek to give the prosecution the ability in a limited number of cases to test the correctness of such an important ruling before the Court of Appeal.

Secondly, the noble Lord asked me whether the measure would have enormous resource implications. The proposals have been developed in consultation with the senior judiciary. The Explanatory Notes at paragraph 785 give details of the resource implications which we believe will arise on the basis of best estimates. For the Crown Prosecution Service training and expenditure costs are estimated at 1.5 million over two financial years and about 1.3 million annually thereafter. Costs to the Department for Constitutional Affairs relating to the provision of additional Appeal Court capacity are estimated at about 0.8 million per year. Of course, there are resource implications but they are relatively modest and certainly justified in the Government's view by the importance of being able to test such rulings.

Thirdly, the noble Lord asked me—

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