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Lord Goldsmith: My Lords, I profess to being extremely disappointed by what both noble Lords have said. Let me deal with the points raised. First, there is the principle that there should be a prosecution right of appeal—and we are here concerned with the principle that there should be a prosecution right of appeal against rulings which bring the case to a stop, whether it is because the ruling of the judge actually is that the case must stop, or because the effect of the ruling is that the prosecution cannot continue.

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I set out some examples as an annex to a letter that I sent to noble Lords, which was placed in the Library of the House, and to which I drew attention in Committee. It included, for example, the case where a man and a young woman were found with their clothes around their ankles. When asked whether or not the woman had consented to sex, the man said: "I don't know. I didn't ask her". There was bruising to both of them. At the end of the prosecution case the judge said that he was not going to allow the case to go to the jury. That is extraordinary. The matter never therefore went to the jury to determine whether or not they were satisfied of evidence of rape.

We dealt with a recent case involving serious offences of money laundering concerned with drug-taking, where the amount at stake was around £10 million. On day 66, the trial judge stayed the case against the defendants in the trial and nine other defendants in allied trials because of a failure of disclosure by the prosecution. He said in terms that there was no deliberate intention to mislead the court and that a mistake had taken place. He also said that, although the document had not been disclosed when it should have been, it had now been disclosed, that the position was not irretrievable and had been retrieved. None the less, the judge took the view that it was right to bring the case to a complete stop.

The Government believe that in such cases it is only right, in the interests of the public and victims in society, that that sort of ruling should be capable of being tested before another court. If the trial judge was right, so be it; if the Court of Appeal takes the view that he was wrong, the case should not have been brought to an end. I am therefore very disappointed by the proposition suggested by the noble Lord, Lord Kingsland, that the Government should simply abandon the possibility of having prosecution rights of appeal. The Government will not accept it.

Lord Kingsland: My Lords, I am extremely grateful to the noble and learned Lord for giving way. At the outset of my remarks, I was particularly careful to say that we had a hierarchy of concerns. There are ways of allowing prosecution appeals into the legislation, perhaps for perfectly sensible reasons, provided that the Government's solution is balanced. Our objection is that the Government propose a solution that is not balanced and fair and does not respect the rights of the defendants.

Lord Goldsmith: My Lords, I am picking up on the words of the noble Lord, who said towards the conclusion of his remarks that the Government ought either to remove prosecution rights of appeal from the Bill or take another course. He therefore proposes that it would be acceptable that there should be no prosecution right of appeal. I strongly disagree with that proposition.

The noble Lord makes a fundamental point about equality of arms. Obviously, we have looked at the matter very carefully. The principle of equality of arms is one aspect of the right to a fair hearing under Article 6 of the European Convention on Human Rights. But

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the Strasbourg court has made clear that the question of whether a trial conforms to the standard required by Article 6 will be decided on the basis of the trial as a whole, including any appeal proceedings.

The principle of equality of arms involves striking a fair balance between the parties to ensure that the defendant has a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-a-vis the prosecution. The content and operation of the principle does not require that the parties to a criminal trial should have exactly the same procedural rights. The defendant always has a general right of appeal against conviction at the conclusion of the trial; the prosecution has no such right. We have not suggested that the prosecution should have such a right, even though some have recommended it, or that it should have a right to appeal against unreasonable jury verdicts. There is sufficient balance to the interlocutory appeal that we propose.

I am grateful to the noble Lord for thanking me for holding the meeting and writing to him and the noble Lord, Lord Thomas. I pointed out then—and he graciously accepted my point—that the case law of the Court of Appeal is such that it is not possible that the defendant would be disadvantaged in his appeal, by comparison with a prosecution right of appeal.

Let us bear in mind that, at this stage, we are concerned with only one kind of ruling. Such a ruling is so serious that it says either that the case cannot continue at all—if, for example, it must be stayed for abuse of process or because no offence is made out in law—or that certain evidence is inadmissible; for example, that the prosecution cannot continue with the case. We are concerned with a fundamentally fatal ruling by the court. If a judge faced with such an application decides that there is no fatal flaw, but the Court of Appeal disagrees on grounds that there was insufficient evidence and states that the case should have been stayed, it is inconceivable that the Court of Appeal would allow a conviction to stand.

The two cases to which the noble Lord, Lord Kingsland, referred make that very clear.

Lord Renton: My Lords, I am grateful to the noble and learned Lord for giving way. He is right in the very general statement that he makes. But we must bear in mind that, when drafting legislation, especially that dealing with people's rights, if we express one thing and omit the other there is an assumption that the other is necessarily admitted. There is a well known Latin phrase for that, but one must not use it now. I would have thought that it could do no harm, but would clarify matters, if the rights of the defence were inserted in the way that my noble friend has so wisely suggested.

Lord Goldsmith: My Lords, I am grateful for that intervention. The defendant's right to appeal is already enshrined in statute and applied in leading judgments and precedents of the courts. At present, there is no prosecution right of appeal at all during the trial, and that is why we seek to introduce one.

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The two cases to which I have referred the noble Lord, Lord Kingsland, are important. It is worth referring to them briefly. In the case of Sargent, decided by the House of Lords, the noble and learned Lord, Lord Hope of Craighead, said:

    "The question is, as Mr Houlder QC for the Crown accepted, whether the jury would inevitably have convicted"—

I repeat, "inevitably have convicted"—

    "if the transcript of the interview had been edited so as to exclude all mention of the intercept".

The point in the case was whether the transcript should have been allowed in. In considering the appeal, the Court of Appeal thought that the trial judge was wrong in allowing it in. But the question was not whether they thought that the jury might have convicted, but whether it was inevitable that the jury would have convicted, if that evidence had not been in.

Secondly, in the case of Smith, the question arose of what should happen if the trial judge wrongly rejects a submission of no case yet the defendant goes on to give evidence. It is clear from the judgment of the Court of Appeal that the defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the prosecution case would be an abuse of process and fundamentally unfair. Even in the extreme case where the defendant goes on to give evidence, the conviction should be regarded as unsafe.

As I said previously in answer to the intervention of the noble Lord, Lord Thomas, in the event that a defendant pleads guilty on the basis of an incorrect ruling, the Court of Appeal will quash the conviction. Equally, it will quash the conviction if a stay ought to have been granted. We have a number of such examples going through the courts.

In the two cases of Francom and Togher, the Court of Appeal has made clear that fairness for Article 6 purposes goes along with unsafeness for appeal purposes. If something is unfair in accordance with Article 6 of the convention, the Court of Appeal will not allow the conviction to stand.

With respect, the equality of arms principle is not a good point to take. The defendant already has a general right which is even more extensive than the right that the prosecution here seeks. Finally, the noble Lord's argument fails to address at all my opening point. Under the head of prosecution rights of appeal, the prosecutor, when seeking leave, must say, "I accept and I agree that if leave is not granted or if leave is granted and the Court of Appeal dismisses the appeal, then this man is entitled to be acquitted".

No corresponding proposition is proposed for the defendant. Therefore, the effect of including the rights to which the noble Lord refers would mean that the defendant would have the ability to appeal any ruling—I repeat, any ruling—made by the judge with no sanction attached to it at all. If the Court of Appeal disagreed, the trial would simply go on. I repeat that that would simply bring the administration of justice to a grinding halt because appeal after appeal would be brought.

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While I fully respect the concerns for the rights of defendants, the Government carefully considered those; the Law Commission considered those. The Law Commission did not see this as a problem—neither did we—because the defendant has the extensive right of appeal which gives him all the safeguards and a greater right than the prosecution would have.

4.30 p.m.

Lord Kingsland: My Lords, once again, I am most grateful to the noble and learned Lord for his reply. I would not want your Lordships to think that the Opposition is opposed to Part 8 in principle. On more than one occasion, we have set out to the noble and learned Lord what we consider to be a reasonable solution to the issues that he seeks to face. A properly balanced system giving equivalent rights to prosecution and defence could be constructed. It could be constrained by the requirement that leave to appeal be given only for either an error of law on the basis that the decision by the trial judge was so unreasonable that no reasonable trial judge could have come to such a conclusion.

From what the noble and learned Lord has said, my understanding is that he is not prepared to accept such a solution. That being so, I would like to seek the opinion of the House.

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