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Lord Goldsmith: Before I deal with this series of amendments, I want to comment on the difference between expedited and non-expedited appeals. As yet, it has not been mentioned. When the prosecution informs the court of its wish to appeal, it is necessary under Clause 60 for the judge to decide whether it should be an expedited appeal or a non-expedited appeal. It is easy to see in what circumstances the judge might think it right for there to be an expedited appeal and in what circumstances it would not be necessary.

The main purpose of the clause is to allow prosecutors' appeals against rulings made in the course of the trial to be heard quickly, particularly if a jury has already been empanelled. It is less important that an appeal be expedited if the ruling is made before the trial has begun or if no jury is yet in place. In this respect, the prosecutor's appeal against a ruling under Part 9 at a pre-trial hearing will be like an appeal against a ruling made at a statutory preparatory hearing where there is a right to appeal.

Inevitably, there will be some cases in which an appeal is lodged during the trial. It will immediately be apparent that it cannot be expedited. The intention is that inquiries will be made of the Court of Appeal as to whether, for example, it is able to accommodate such an appeal. It may be that the arguments are complex. Where it appears that the appeal cannot be determined quickly, the Bill would allow the non-expedited route to be taken in that case also.

What then will happen? If the judge decides that the appeal should be expedited, he may order an adjournment and the length of that will depend on a consideration of how long it may be for the Court of

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Appeal to deal with the issue. In the case of an expedited case, that may happen on the Tuesday when it is indicated that the Court of Appeal will be able to deal with the matter on the Thursday, so the trial might be adjourned until the Friday. That will be for the trial judge to determine, with the ability for both the trial judge and the Court of Appeal to reverse that decision once it has been made, if it turns out to be unsatisfactory.

If the judge decides not to expedite the case, a different process will be followed. If it is being expedited, he would not discharge the jury because the jury would then be ready to deal with the case when it returned. Let us suppose that the Court of Appeal said that the ruling was wrong and that the case should proceed. Let us further suppose that, typically, the jury has heard all the evidence during three or four weeks, a submission has been made on behalf of the defence and the judge has ruled that the prosecution case has to stop. In such a case, it makes sense to get that ruling tested quickly in the Court of Appeal if it can accommodate it. If it upholds the judge's ruling, the case will come to an end. If it does not, the case will continue with the same jury in place. This provision has been built up in consultation with the senior judiciary who have been consulted about it.

That is the background. I turn now specifically to the amendment. Amendment No. 132P would require the court to expedite all prosecution appeals under Clause 58 against terminating rulings as defined by the Bill. Then the court would have to discharge the jury and bail the defendant. The amendment is highly inappropriate for several reasons. Imagine that we are dealing with a trial for murder. The accused is thought likely to abscond and has not received bail at any time since his arrest. The judge makes a terminating ruling which the prosecutor is firmly convinced is wrong and the prosecutor decides to appeal.

First, there is no reason why a terminating ruling should always follow the expedited route. Most pre-trial appeals will not be expedited, but those lodged after the jury has been empanelled generally will be. It will be for the trial judge to determine that, having regard to all the circumstances. However, if it is clear that an appeal is not capable of being expedited, the court ought to be able to determine which route is followed and the Bill to allow flexibility to decide that. If the court decides that a non-expedited appeal is necessary, a non-expedited appeal should be the outcome.

The second effect of the amendment would also be highly undesirable. Assuming that an appeal is expedited, what possible reason could there be for always requiring the jury to be discharged? The whole point of providing for an interlocutory appeal is so that the trial can continue if the Court of Appeal considers that the trial judge was wrong. Therefore, on the recommendation of the senior judiciary, we have provided for an expedited appeal so as to enable the same jury to remain in place, with less interruption to the trial.

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The third effect of the amendment would, frankly, be disastrous. The amendment would require the accused—I speculated that it might be someone charged with murder who was likely to abscond or perhaps someone who was thought capable of interfering with the witnesses—to be freed on bail in all cases, even where those risks existed. That cannot possibly be right.

No doubt the trial judge and the Court of Appeal will have in mind all those considerations—how long the defendant will remain in custody, how quickly the appeal can be dealt with, and the effect on the jurors of keeping them away from the trial for a period of time—when deciding whether it is a proper case to expedite. Therefore, we cannot accept the amendment.

The effect of the related amendments—Amendments Nos. 133E, 133F, 133H and 133J to Clause 60—would be similar. Curiously, their first effect would be to leave untouched the power of the court either to expedite or not to expedite a prosecution appeal under Clause 59 against a ruling which is not a terminating ruling as defined in Clause 56 but which is a ruling that the prosecutor regards as terminating. However, there is no reason why an appeal under Clause 58 against a formally terminating ruling should always be expedited but an appeal against a ruling which is, de facto, terminating should not. Both types of ruling lead inevitably to the conclusion of the proceedings for the offence in question.

At all events, the next effect of Amendments Nos. 133E, 133F, 133H and 133J would be to require the court to discharge the jury and bail the defendant where the appeal was not expedited. The court may well want to discharge the jury in a non-expedited case but, for the reasons I have given, an obligation to grant bail would be highly undesirable.

The effect of Amendment No. 133EA would be to require the court, where an appeal was expedited, to grant an adjournment in all cases. The effect of Amendment No. 133G would be to require the court, where an appeal was not expedited, either to grant an adjournment or to discharge the jury.

When similar amendments were debated in another place, I believe it became clear that the judge should not be obliged to grant an adjournment in the first situation or to discharge the jury or grant an adjournment in the second, but that he should have a discretion to do so. The reason for that is that the Bill allows proceedings for offences to which the appeal does not relate to continue at the court's discretion. The appeal is against the judge's ruling; it is not against an acquittal because no acquittal is ordered at that stage. The appeal is interlocutory and thus the acquittal is suspended.

At this point, I shall answer the question put by the noble Lord, Lord Kingsland. Clause 58(6) simply provides for the appeal ruling to be suspended while the appeal is in progress. It does not mean that the trial must continue. It is possible that in certain cases the

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trial judge will say that certain aspects of the case can continue, even while awaiting the ruling from the Court of Appeal. Then the trial would be able to continue in relation to those defendants or in relation to that matter, but that is to be determined at the discretion of the trial judge.

Therefore, the Bill provides the judge with a necessary flexibility. I am sure that at least on that point the noble and learned Lord, Lord Ackner, will agree that, if these procedures are to be in place at all, it is desirable that that should happen. For those reasons, I invite the noble Lord to withdraw his amendment, and I shall oppose the others if they are moved.

Lord Thomas of Gresford: The noble and learned Lord makes a very persuasive case, which I shall read with great interest. My concern is that, where there is a terminating ruling, the defendant should be acquitted. As the noble and learned Lord was addressing your Lordships, I was considering whether it was envisaged that, although the judge has made a terminating ruling, he will not discharge the defendant—that is, whether there will be some kind of limbo position until the prosecution have made up their mind whether to appeal that ruling. In the ordinary case, if the judge were to find no case to answer, he would direct the jury to order an acquittal. But is there to be a period of days while the jury are left to wonder what will happen? What is the position then?

Lord Goldsmith: With respect, I should have thought that that was clear from the preceding debate and from what I said. The whole purpose of providing the appeal is that, in certain circumstances, there can be an interlocutory appeal against a ruling which would otherwise be terminating. It would be disingenuous and misleading for the defendant to pretend that, while that was taking place, he had been acquitted. That is why Clause 58(6)—the provision to which the noble Lord, Lord Kingsland, drew attention—states that, while consideration is being given to whether there should be an appeal, perhaps overnight or a little longer, the ruling would have no effect in relation to the offence. If that were not right, we would need to add an additional category of cases where there could be a second trial to those already envisaged in Part 10, which we shall reach later today.


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