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Lord Thomas of Gresford: My Lords, from these Benches I repeat that we are grateful to the noble and learned Lord for his discussions and for having listened to the concerns that we expressed in Committee and on Report. I think I said at the beginning that we were not opposed to prosecution appeals in principle; it was the practicalities that concerned us. Amendment No. 44 does a great deal to answer those concerns. It will limit the number of times that a prosecutor who has lost will, in a fit of pique, go to the Court of Appeal, and it will mean that the Court of Appeal will not have to read through reams and reams of material in order to second-guess the trial judge's decision. We welcome the provisions and endorse them.

Lord Goldsmith: My Lords, I am grateful for what both noble Lords have said. There is nothing more that I need to say at this stage. The noble Lord, Lord Thomas, may be holding out too rosy a promise to the Court of Appeal that there will not be occasions when it will have to read a lot of material, but now is not the occasion to go into that debate.

On Question, amendment agreed to.

17 Nov 2003 : Column 1784

Clause 50 [Further provision about right of appeal mentioned in section 50(3)]:

Lord Goldsmith moved Amendments Nos. 9 to 11:


    Page 34, line 5, leave out subsections (1) to (4) and insert—


"(1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.
(2) But the prosecution is to have no right of appeal under this Part in respect of—
(a) a ruling that a jury be discharged, or
(b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment." Page 34, line 23, leave out "who made the ruling"


    Page 34, line 25, leave out subsections (7) and (8).

On Question, amendments agreed to.

Clause 51 [Appeals against terminating rulings]:

Lord Goldsmith moved Amendments Nos. 12 to 19:


    Page 34, line 35, leave out from "judge" to end of line 36 and insert "makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.


(1A) The prosecution may appeal in respect of the ruling in accordance with this section." Page 35, line 1, leave out "it requests such an adjournment" and insert "such an adjournment is granted"


    Page 35, line 4, leave out "must" and insert "may"


    Page 35, line 9, at end insert—


"(5A) Where—
(a) the ruling is a ruling that there is no case to answer, and
(b) the prosecution, at the same time that it informs the court in accordance with subsection (3) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,
that other ruling, or those other rulings, are also to be treated as the subject of the appeal.
(5B) The prosecution may not inform the court in accordance with subsection (3) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (5C) is fulfilled.
(5C) Those conditions are—
(a) that leave to appeal to the Court of Appeal is not obtained, and
(b) that the appeal is abandoned before it is determined by the Court of Appeal." Page 35, line 11, after "ruling" insert "mentioned in subsection (1)"


    Page 35, line 15, leave out "and"


    Page 35, line 16, at end insert "and


(c) if he does so, any such steps are also to have no effect." Page 35, line 16, at end insert—


"(8) Where the prosecution has informed the court of its agreement under subsection (5B) and either of the conditions mentioned in subsection (5C) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.
(9) In this section "applicable time", in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the start of the judge's summing-up to the jury."

On Question, amendments agreed to.

17 Nov 2003 : Column 1785

Clause 52 [Appeals against certain other rulings]:

Lord Goldsmith moved Amendment No. 20:


    Leave out Clause 52.

On Question, amendment agreed to.

Clause 53 [Expedited and non-expedited appeals]:

Lord Goldsmith moved Amendments Nos. 21 and 22:


    Page 36, line 2, leave out "or 52(2)"


    Page 36, line 3, leave out "against a ruling"

On Question, amendments agreed to.

Clause 54 [Continuation of proceedings for offences not affected by ruling]:

Lord Goldsmith moved Amendments Nos. 23 and 24:


    Page 36, line 15, leave out "or 52(2)"


    Page 36, line 15, leave out "against a ruling"

On Question, amendments agreed to.

Clause 55 [Determination of appeal by Court of Appeal]:

Lord Goldsmith moved Amendments Nos. 25 to 38:


    Page 36, line 19, leave out "this Part" and insert "section 51"


    Page 36, leave out line 20 and insert "any ruling to which the appeal relates"


    Page 36, line 20, at end insert—


"(1A) Subsections (2) to (4) apply where the appeal relates to a single ruling." Page 36, line 21, leave out "a" and insert "the"


    Page 36, line 23, leave out first "the" and insert "that"


    Page 36, line 23, leave out second "the" and insert "that"


    Page 36, line 24, leave out "a" and insert "the"


    Page 36, line 27, leave out first "the" and insert "that"


    Page 36, line 29, leave out "fresh proceedings may be instituted" and insert "a fresh trial may take place"


    Page 36, line 30, leave out "the" and insert "that"


    Page 36, line 31, leave out second "the" and insert "that"


    Page 36, line 31, leave out third "the" and insert "that"


    Page 36, line 35, at end insert—


"(4A) Subsections (4B) and (4C) apply where the appeal relates to a ruling that there is no case to answer and one or more other rulings.
(4B) Where the Court of Appeal confirms the ruling that there is no case to answer, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.
(4C) Where the Court of Appeal reverses or varies the ruling that there is no case to answer, it must in respect of the offence or each offence which is the subject of the appeal, make any of the orders mentioned in subsection (3)(a) to (c) (but subject to subsection (4))." Page 36, line 36, leave out subsection (5).

On Question, amendments agreed to.

Lord Goldsmith moved Amendment No. 39:


    After Clause 55, insert the following new clause—


"APPEALS IN RESPECT OF EVIDENTIARY RULINGS
(1) The prosecution may, in accordance with this section and section (Condition that evidentiary ruling significantly weakens prosecution case), appeal in respect of—
(a) a single qualifying evidentiary ruling, or
(b) two or more qualifying evidentiary rulings.

17 Nov 2003 : Column 1786


(2) A "qualifying evidentiary ruling" is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.
(3) The prosecution may not appeal in respect of a single qualifying evidentiary ruling unless the ruling relates to one or more qualifying offences (whether or not it relates to any other offence).
(4) The prosecution may not appeal in respect of two or more qualifying evidentiary rulings unless each ruling relates to one or more qualifying offences (whether or not it relates to any other offence).
(5) If the prosecution intends to appeal under this section, it must before the opening of the case for the defence inform the court—
(a) of its intention to do so, and
(b) of the ruling or rulings to which the appeal relates.
(6) In respect of the ruling, or each ruling, to which the appeal relates—
(a) the qualifying offence, or at least one of the qualifying offences, to which the ruling relates must be the subject of the appeal, and
(b) any other offence to which the ruling relates may, but need not, be the subject of the appeal.
(7) The prosecution must, at the same time that it informs the court in accordance with subsection (5), inform the court of the offence or offences which are the subject of the appeal.
(8) For the purposes of this section, the case for the defence opens when, after the conclusion of the prosecution evidence, the earliest of the following events occurs—
(a) evidence begins to be adduced by or on behalf of a defendant,
(b) it is indicated to the court that no evidence will be adduced by or on behalf of a defendant,
(c) a defendant's case is opened, as permitted by section 2 of the Criminal Procedure Act 1865 (c. 18).
(9) In this section—
"evidentiary ruling" means a ruling which relates to the admissibility or exclusion of any prosecution evidence,
"qualifying offence" means an offence described in Part 1 of Schedule (Qualifying offences for the purposes of section (Appeals in respect of evidentiary rulings)).
(10) The Secretary of State may by order amend that Part by doing any one or more of the following—
(a) adding a description of offence,
(b) removing a description of offence for the time being included,
(c) modifying a description of offence for the time being included.
(11) Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 51."

The noble and learned Lord said: My Lords, this second group of government amendments is closely connected with those that the House has just accepted. This is the set of amendments that introduces a prosecution right of appeal against a non-terminating evidentiary ruling or series of evidentiary rulings. Once again I am grateful to the Opposition for agreeing to the amendments being brought forward at this stage. In the summer I signalled that we had it in mind to bring them forward. They were tabled on Report but not in the event moved. In fact, they have been under consideration for some time. We are bringing them forward now because we believe that this additional right of appeal is an important part of the prosecution appeals package as a whole.

17 Nov 2003 : Column 1787

The Bill gives the prosecution a right of appeal against a terminating ruling. This right of appeal will not always be enough. There are situations in criminal trials where an evidentiary ruling has a significant impact for the worse on a prosecution case but is not fatal to it. As the House may well recall, the lack of a right of appeal against rulings of this kind attracted some adverse comment in Bishop Sentamu's report on the Damilola Taylor case. In our view whether a case is high profile or not, there is a clear need for arrangements to have such rulings reviewed by the Court of Appeal. In the absence of such a right, a perception of injustice may arise which cannot properly be allayed. The amendments will allow rulings of this kind to be tested where they cannot be at present and are in the interests of justice.

I should make the following comment as I have never previously put this on the record. It may be helpful and for the convenience of the House to do so. So far as numbers of cases are concerned, we have introduced a range of measures here to limit the number of appeals that there may be. I wish to identify them. First, an appeal against an evidentiary ruling or rulings in a series will be allowed only where the ruling or rulings are made before the defence case opens. That timing is more restrictive than that now applicable to appeals against a single terminating ruling. Secondly, an appeal against an evidentiary ruling will be available only in relation to a qualifying offence as set out in the schedule. That schedule has intentionally been constructed so as to include only serious offences. Thirdly, the prosecution must obtain leave to appeal from either the judge or the Court of Appeal before it can appeal. Fourthly, that leave may be granted only if the relevant condition is met. That relevant condition is that the evidentiary ruling or rulings,


    "significantly weakens the prosecution case".

Fifthly, I anticipate that the guidance which the Director of Public Prosecutions will issue to prosecutors on the operation of the prosecution appeals regime as a whole will include specific guidance on evidentiary appeals. Finally—this matter arises from detailed discussions with the senior judiciary in the Court of Appeal—the evidentiary appeal regime will be implemented later than, and separately from, the terminating rulings appeals. That will give an opportunity to see how the terminating appeal works in practice and give us advance warning of any unexpected resource implications of the evidentiary regime.

I hope that your Lordships will agree that, taken together, those amendments represent a formidable battery of safeguards. The detail of the appeals is well set out in the amendments. I am happy to answer any questions which noble Lords may have but, subject to those questions, I hope that these provisions will commend themselves to the House. I beg to move.


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