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Lord Ackner: I hope that I may intervene on that point. Are the resource implications extended to assisting the Court of Appeal, or are they purely in relation to training the prosecution and other such matters?

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Lord Goldsmith: They cover the costs of what is described as,


    "the provision of additional Appeal Court capacity".

That is the estimate of the Department for Constitutional Affairs. There is also an estimate for legal aid costs of about 0.1 million annually from the financial year 2005–06. Of course I recognise that those are estimates based upon what has to be an estimate of the number of cases that may arise, but I hope that they are of help.

Thirdly, the noble Lord asked about provisions which do not at the moment appear in the Bill. I am grateful to him for giving me the opportunity to consider the matter. Of course, the question of whether there should be reciprocal rights for the defence has been considered. When we come to Report, I shall want to deal with that in more detail. However, I shall indicate in the broadest terms what the response will be. The defence has the ability to appeal. If a ruling is made by a trial judge in the course of the trial to the effect that certain evidence is admissible, and if the defendant is convicted, at the end of the day the defendant can include in his appeal a complaint that the conviction was wrong because it admitted evidence that was not admissible.

Lord Kingsland: Will the noble and learned Lord give way?

Lord Goldsmith: If I may, I shall continue for a moment. On this occasion, when we are talking about a provision not in the Bill—we have amendments in relation to the part on provisions that are, and to another part to which I know that Members of the Committee are anxious that we should get—I would really rather not develop it further. Of course, if Members of the Committee want to intervene I could not and would not prevent them.

Lord Kingsland: I am most grateful to the noble and learned Lord for giving way. I have been away from the House so long that I had quite forgotten the tranquillising effect that his words had on it. That makes me almost reluctant to intervene—it seems a kind of impertinence. Nevertheless, perhaps I might be permitted to reflect on what I think was the last substantive observation that he made.

The noble and learned Lord seems to suggest that the right of the accused to appeal against conviction after the jury's decision is in some way equivalent to any right that he might have to appeal against a non-terminating decision by a criminal judge made against him in the course of the trial. In my submission that view, if not naive, is certainly inaccurate.

As the noble and learned Lord well knows, the test for the Court of Criminal Appeal is whether a conviction is unsafe or not. It is perfectly possible for the Court of Criminal Appeal to decide that the judge's finding in relation to the accused's submissions on a point, say, of inadmissibility was incorrect, but at the same time to uphold his conviction. If I may respectfully submit it, the idea that the defendant has

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the same rights as a result of an appeal against conviction as he would have on an appeal against a non-terminating decision by a judge against him is a chimera.

2.15 p.m.

Lord Goldsmith: The noble Lord's absence from the Chamber certainly has not in any way dimmed the clarity or pointedness of his contributions. I am really not going to be tempted to debate a provision that is presently not in the Bill. The noble Lord's point is one that has, of course, been considered. It will be necessary on a future occasion to talk a little more about the current practice of the Court of Appeal in relation to appeals, but I do not want to go further into that. I offered the noble Lord a meeting with me—indeed, we had arranged it, and I do not for a moment complain that he was not able to make it—to discuss the provisions and the intended provisions, an offer that I am very happy to make available to any other noble Lord who would also like to discuss them. We could certainly discuss the topic on that occasion and come back to it on Report.

I shall turn specifically to Amendment No. 132K, which would insert,


    "for no more than seven days",

into the provision relating to the adjournment that the prosecution may seek if it wishes to consider whether to appeal against a particular ruling. Part 9 sets out a broad statutory framework for prosecution appeals, but the intention is that the detail of the procedures to be followed will be set out elsewhere, especially in rules of court and practice directions. We are anxious that those should be prepared after discussion and consultation with all interested parties, principally the judiciary. However, the provisions have been subject to consultation with the judiciary and, in the light of its concerns, we want to get the rules right and ensure that it is content with them. Of course we want to minimise delays to trials, while ensuring that trial judges have flexibility to deal with the variety of situations that may arise during a trial and which cannot be anticipated.

Clauses 58 and 59 set out the procedure to be followed where the prosecutor may wish to lodge an appeal against a judge's ruling. They allow the prosecutor to indicate an intention of appealing immediately, or to request an adjournment in order to consider whether to do so. The judge is required to grant the adjournment. The requirement is the subject of the amendment tabled by the noble and learned Lord, Lord Ackner, to which I shall come in a moment. As said by the noble Lord, Lord Kingsland, other amendments that we shall discuss separately suggested other time limits—for example, no more than 48 hours. In another place, the suggestion was no more than one day. We agree with the thinking that underlies the amendments—that the decisions need to be taken quickly so that there is not delay—but we do not agree that it is desirable to put such time limits in statute.

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The current expectation that we have in mind is that the likely time limit will be in most cases even shorter than that proposed by the noble Lord, Lord Thomas of Gresford. In another place, 24 hours was referred to. In many cases, that will be absolutely adequate, but there may be cases in which it is not. There is something to consider that is important and cuts the other way: the power should be used sparingly and judiciously. Therefore, it is intended, as I said in the letter to the noble Lord, Lord Kingsland, that the Director of Public Prosecutions will give guidance to prosecutors as to when they should use the power.

In certain cases, the power may require consultation with a more senior prosecutor. In those circumstances, I can certainly envisage that there may be cases in which, with the best will in the world, it is not possible to get that approval within, for example, 24 hours. Therefore, it may be sensible for the period to be a little longer in the interests, while keeping the delay down, of getting a sound decision that does not lead to too many appeals.

Fundamentally, we believe it better to go to rules for setting down time limits. Rules will be able to allow for exceptional circumstances—no doubt within the judge's discretion—better than placing something in statute. What is more, experience may tell that a time limit on which we originally fix is not the right time limit. In those circumstances, if it is in rules it is easy to take account of experience. If it is in statute it is much more difficult to do. Although agreeing with the underlying intention of the provisions, that is why we think it better to leave the matter to rules and practice directions rather than putting it in statute.

I shall move on to Amendment No. 133, tabled by the noble and learned Lord, Lord Ackner. Of course I recognise that it echoes concerns expressed by the noble and learned Lord, Lord Woolf, in the paper deposited after Second Reading. Mandatory procedural requirements are nothing new, and there is good reason in the Government's view for including this one in this instance. It is vital that the prosecutor is given sufficient time to consider lodging an appeal and, in appropriate cases, to take advice and consult senior colleagues. Indeed, he may have to get consent from a senior colleague.

The Government believe it better to provide a necessary protection for both prosecutors and defendants, to provide that there really has to be an adjournment for that consultation to take place if the prosecutor is not in a position to say there and then that an appeal should be brought. If not, there is a risk that an overly hasty decision will be taken. If a judge declines even the sort of short adjournment that I have in mind for the prosecutor to consider the position, there is every risk that the prosecutor will then say, "I must go ahead and appeal it", which would not be in anyone's interests if there had not been real consideration.

I can assure the noble and learned Lord, Lord Ackner, that I am a strong supporter both of the independence of judges and of having confidence in their abilities. I would want always to uphold them. However, it is a modest

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requirement in the interests of both prosecutors and defendants that a short adjournment takes place if the prosecutor feels that an appeal is required.

Lord Clinton-Davis: If the judge forms a view that there is absolutely no merit in what the prosecutor argues, why should he not have that discretion? It is very sensible.


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