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Lord Williams of Mostyn: My Lords, I support the amendment. I am happy to adopt the arguments put forward by the noble and learned Lord, Lord Bridge of Harwich, and by the noble and learned Lord, Lord Campbell of Alloway. None of the three of us could sensibly be accused of being the "villains' friend", in that particularly insulting and ill-judged phrase.
Perhaps I may offer a cruel example from the real world. A female child of three is raped. The trial judge wrongly sentences the accused to three years' imprisonment. The Attorney-General rightly takes that absurdly over-lenient sentence to the Court of Appeal, Criminal Division, which can hear the appeal and put matters right. The same judge may well rule that, because of publicity or the passage of time, the case should go no further. The child remains attacked, assaulted and wounded for life; her parents are appalled; the wider community is rightly incensed; and that cannot be put right. Where is the intellectual sensible justification for that? There is none.
I shall not touch on particular cases. I have discussed them privately with the noble Lord, Lord Campbell of Alloway. It is not suitable to mention them publicly. But, to my knowledge, there are Crown Court centres where there are serious questions about whether judges should properly have stopped cases on the grounds of abuse of process, either by virtue of delay, because of the difficulties in sexual complaints or because of adverse publicity.
The judges at first instance may be right or they may be wrong. There are no further alternatives. But their decisions in these important matters ought to be subject to review in the Court of Appeal, Criminal Division. Therefore, the importance of the amendment is not in its standing alone but in its irretrievable and necessary connection, as the noble and learned Lord, Lord Bridge of Harwich, pointed out, to Clause 28 of the Bill at present--in other words, the interlocutory appeal is allowed.
It is otiose for the Government to say that interlocutory appeals are bad as a matter of principle in criminal cases. They certainly have disadvantages, but Clause 28 provides for exactly that. Indeed, if one traces through Clause 28, the opportunity of an appeal lies not only to the Court of Appeal, Criminal Division, but also to the Judicial Committee of your Lordships' House. That has many virtues, but speed of decision--because of the delays of which we are all aware--is not one of them.
If rulings are made to stay cases on the grounds of abuse of process, which frequently attaches itself to adverse publicity or to the difficulties in sexual cases to which I referred earlier, the public may feel and conclude that the law is not only an ass, but also a cruel, unfeeling and unthinking ass.
I do not apply my remarks to anything to do with war crimes; that is a debate long since over and in which I have no specific pressing interest. However, I have a pressing interest in this. If trials should properly be seen through, an application to stay the proceedings should be made as soon as is sensibly possible. I suggest that that is the preparatory hearing time when the evidence is to hand and when both parties have armed themselves for the coming ordeal. But it is vital that that decision by a judge at first instance, which can be devastating for legitimate complainants who want their injury examined and to an extent redressed, should be subject to appeal. It is not at the moment.
To return to my first example--I am sorry it is brutal but circumstances of that kind are cruel--why is it that there may be an appeal against an over-lenient sentence, but no appeal against a wrong decision, made too late, that a trial ought not to continue?
Baroness Blatch: My Lords, following debate on this matter at Committee stage, I met my noble friend Lord Campbell and the noble and learned Lord, Lord Bridge, to discuss the issues raised. I am grateful to both of them because it was a very constructive meeting which helped to identify the arguments on both sides.
Before considering the practical effect of this amendment, it is important to be clear about the purpose of preparatory hearings. Any elaboration of procedures carries with it the risk of delay and of extra cost. We therefore considered long and hard whether to introduce preparatory hearings as an additional step in procedure but we concluded that, in exceptionally long or complex cases, the potential for streamlining the trial outweighed the possible risks. Accordingly, preparatory hearings have very specific purposes which relate to the good management of the trial. Those purposes are set out in Clause 22 of the Bill, while Clause 24 specifies the matters which may be dealt with by a judge prior to the swearing in of the jury. It was never envisaged that all matters which could arise in a case should be dealt with at the preparatory hearing. And the intention, endorsed at Second Reading by the noble and learned Lord the Lord Chief Justice is that such hearings will not be widely used.
On that limited basis, provision has been made for interlocutory appeals on points of law and admissibility of evidence only. Those are matters on which final and authoritative rulings can be given. Abuse of process is different. It may already be dealt with by the judge at any time prior to the trial without a preparatory hearing. Accordingly, the only practical effect of the amendment would be to create an interlocutory right of appeal. But a decision whether to stay proceedings on grounds of abuse of process at one particular stage of the proceedings cannot necessarily be regarded as final. It may have to be reviewed or a further application may be made at a later stage of the proceedings in the light of changed circumstances. The arguments for having an interlocutory appeal on points of law and admissibility of evidence on which final and authoritative rulings can be given do not apply to abuse of process applications. On that basis alone, we do not believe that it is right to adapt the purposes of preparatory hearings simply to enable them to deal with abuse of process and so attract interlocutory appeals.
But there are wider practical objections. The Court of Appeal has held, in cases of which my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Bridge, are aware, that there are a range of matters which are outside the scope of preparatory hearings. Those matters include applications to sever counts on an indictment; applications to quash counts on an indictment, and applications to discharge witness summonses. We can see no rational basis for bringing abuse of process within the scope of preparatory hearings, yet not to include those and other matters. It would make them more complicated and divert them from their primary purpose of securing better management of the trial. It would mean that they might take longer because there would be a wider range of matters which might have to be resolved. It would increase costs and delays because the additional matters to be resolved could generate additional interlocutory appeals.
I had hoped to be able to give your Lordships some figures about the number of additional interlocutory appeals which might result if all those matters were to be brought within the scope of preparatory hearings. I regret, however, that such information is not collected centrally. On the other hand, perhaps it will not be a matter of regret to the House if I refrain from plying it with statistics. However that may be, it does seem likely that the number of additional interlocutory appeals which would result if this amendment is passed would be significant. That is a matter which the Law Officers have pondered carefully on a number of occasions. It remains their view, having consulted the Director of Public Prosecutions who shares their view, that any benefits which might flow would be far outweighed by the additional delays which would be inevitable.
When ruling in one of the cases about matters which are outside the scope of preparatory hearings, the Court of Appeal itself commented on the plethora of applications being received for leave to appeal against judges' rulings at preparatory hearings and the delay that was causing to other cases. It is also the case that the grounds on which an abuse of process application can
This is a complex matter and it raises some complex issues. I have sought to explain as clearly as possible why we do not think it is right to bring decisions on abuse of process within the scope of preparatory hearings. They were not intended to deal with such matters and it would divert them from their primary purpose of the good management of the trial. I recognise that the noble and learned Lord, Lord Bridge, and my noble friend Lord Campbell have reached a different view.
Just before I sit down, perhaps I can refer to the specific case raised by the noble Lord, Lord Williams of Mostyn. As I understand the provisions of this Bill, the specific case raised by the noble Lord, Lord Williams, would simply not qualify for a preparatory hearing, unless the noble Lord is suggesting that interlocutory appeal should be considered in the generality of cases and not simply for preparatory hearings. That would make his example more pertinent. But for the reasons I have given, the Government are unable to accept the amendment.
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