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Resolved in the negative, and amendment disagreed to accordingly.
The noble Lord said: Clause 81 states that an application under Section 76(3) of the 1981 Act for a variation of the place fixed for Crown Court trial is no longer required to be heard in open court by a judge of the High Court. By asking for the deletion of the words,
It is undoubtedly a matter for discussion as to whether a judge of the High Court might want to be much more impartial about whether the case should be transferred, whereas a circuit judge might want to keep hold of the business. It would be interesting to know
Lord Carlisle of Bucklow: I ask in total ignorance, I am afraid, but is the present position that the application to transfer a case has to be heard by a High Court judge? I thought it could be heard by a judge at the Old Bailey or a recorder. I had not realised that it required a High Court judge. I thought the power was wider. There is no need for a High Court judge if it is obviously for the convenience of witnesses that matters should be transferred. I am surprised to hear it is necessary at the moment.
Lord Bassam of Brighton: I think what the noble Lord, Lord Carlisle, described is currently the situation. I want to go on to clarify the point the noble Lord, Lord Hunt of Wirral, raised and persuade him to withdraw his amendment.
Clause 81 amends some of the provisions of Section 76 of the Supreme Court Act 1981. That measure deals with alterations to the place of trial in the Crown Court. It currently requires that any application by the prosecution or defence to change the place of trial must be dealt with in open court by a judge of the High Court. That is often difficult because not all Crown Court centres are visited by High Court judges, and many that are do not always have such a judge in residence. So when considering this issue, the Government not only decided that it is no longer necessary for High Court judges to deal with these issues, but recognised that the applications can often be dealt with by a Crown Court judge without the need for a hearing in open court.
It had been our intention to amend subsection (3) of Section 76 in the manner currently set out and to repeal subsection (4), which contains the requirement for a hearing in open court. Unfortunately, through an oversight, that repeal was not made in the Bill as currently before the Committee. An amendment to Schedule 7, which deals with repeals, will therefore be tabled at Report stage by the Government to give effect to that intention. I trust that the Committee will recognise the need for such an amendment when the time comes to debate it. If that amendment is accepted, the effect will be that applications for alteration to the place of trial can be dealt with by any judge of the Crown Court and, where appropriate, without the need for a hearing in open court.
Lord Carlisle of Bucklow: I should like to return to the point. I have to my knowledge been involved in an application which, although heard by a High Court judge, was heard in chambers. The case involved a major drugs case which was moved from Manchester, I think, to Newcastle. Although I suppose that it might
Lord Bassam of Brighton: It is hard for me to comment on the particular case, but I am grateful to the noble Lord, Lord Carlisle, for explaining some of the circumstances in which it occurred. We are addressing the issue in this way to obviate the need for such a device. I hope that it will provide a practical solution to the problem that he has identified.
Lord Donaldson of Lymington: I should like to raise a point of construction. A double condition is being got rid of: first, that the application has to be heard in open court, and secondly that it be heard by a judge of the High Court. If one just leaves it at that, subject to the amendments which the Minister said he will makewhich I frankly do not understand; that is my fault, not hisone is left with the position that the High Court judge is no longer necessary or the open court is no longer necessary. However, it is certainly left open that one or the other is necessary. It seems a patent ambiguity which ought to be cleared up.
Lord Bassam of Brighton: I am grateful to the noble and learned Lord for his intervention. We will of course take careful cognisance of his remarks in framing our amendment. We think that we have a solution to the specific problem.
Lord Borrie: I am trying to help the Minister. Does he mean that the word "by" should be preceded by "or", so that it is no longer necessary to be heard either in open court or by a judge of the High Court?
Lord Hunt of Wirral: We are all deeply indebted to the noble Lord, Lord Borrie, for having come up with a solution which needs to be considered. However, I believe that the noble and learned Lord, Lord Donaldson, and my noble friend Lord Carlisle have highlighted a problem for the Government. I am not quite sure that they are there yet, but no doubt this will run and run. If the Minister wishes to give further clarification, I am perfectly willing to give him the opportunity to do so.
Lord Bassam of Brighton: I have listened to the advice given in the Committee and to the advice of my noble friend Lady Scotland. I shall seek to bring back a wording which takes on board the points that have been raised so that we can reflect accurately what we need to achieve. Not being a technician in these matters, I am content to leave the matter there.
At present, under the Criminal Appeal Act 1968, after the Court of Appeal has given a decision, the unsuccessful party has 14 days in which to apply to the Court of Appeal for leave to take the appeal to the House of Lords. If that application is turned down, the unsuccessful party has a further 14 days in which to apply to your Lordships' House for leave to appeal.
If the defendant is the unsuccessful party, he can apply for leave to appeal out of time. But, if the prosecutor is the unsuccessful party in the Court of Appeal, there is no possibility of an extension of time. So if the prosecutor fails to appeal within the due time, there is no possibility of an appeal.
Clause 83 maintains the present position so far as an unsuccessful defendant is concerned; that is, the defendant has 14 days to apply to the Court of Appeal for leave to appeal to your Lordships' House and, if that application is turned down, a further 14 days to apply to your Lordships' House itself, and continues to have a right to apply for leave to appeal out of time. However, Clause 83 extends to 28 days the time allowed to a prosecutor who has been unsuccessful before the Court of Appeal to appeal to your Lordships' House.
The Joint Committee on Human Rights in its first report of this Session asked the Lord Chancellor why he proposed to introduce this inequality into the system of appeals and why he thought that it was compatible with Article 6 of the European Convention on Human Rights. The Government responded that the defendant can apply for leave to appeal out of time but that the prosecutor cannot. The Government considered giving a prosecutor a right to apply for leave to appeal out of time but decided that it would be unfair to the defendant to allow the prosecution to do so on the ground that in that case the defendant would always be, at least in theory, potentially at risk of the prosecutor seeking to reopen the case. The Government therefore considered that the 28-day period for the prosecution being longer than that allowed to the defendant was balanced by the defendant's right to apply for leave out of time.
The Joint Committee on Human Rights was not satisfied with that answer and suggested in a subsequent report either that the defence should be allowed 28 days as of right or that the prosecutor should continue to have 14 days, with power to apply for leave to appeal out of time during a further 14 days, but not thereafter.
The position taken by the Joint Committee on Human Rights seems in the circumstances entirely fair and proper. Therefore, I would like to ask whether the Government are prepared to accept its further proposals. If not, why not? I beg to move.
Lord Bassam of Brighton: Sir Robin Auld, in his review of the criminal courts, recognised the disparity addressed by the noble Lord, Lord Goodhart. Sir Robin recommended that Section 34(2) of the Criminal Appeal Act be amended to empower the House of Lords and the Court of Appeal to extend the time within which the prosecution may apply for leave to appeal, as in the case of a defendant.
The conclusion reached was that an open-ended provision for the prosecution to extend the time to seek leave was undesirable, because it would leave the defendant with the prospect of having his conviction reinstated at any time in future. The issue has been discussed at considerable length with both the senior judiciary and the Registrar of Criminal Appeals. The state of affairs is not ideal. A defendant who has been successful in the Court of Appeal should be entitled to know for certain, at the end of a specified period, whether the decision in his favour is to be challenged or not.
Therefore, rather than create an open-ended provision for extension of time, the policy is simply to extend the time limit within which the prosecution may apply for leave to appeal to the House of Lords from 14 to 28 days. We are not taking anything away from the defence, as it retains the right to apply to the House of Lords or the Court of Appeal at any time to extend the time in which to make an application beyond the 14-day limit. The Bill as drafted provides for that.
We thank the noble Lord, Lord Goodhart, for his very considered view. After consultation, we intend to amend the wording of Clause 83 to address his concerns and those of the Joint Committee on Human Rights whose fourth report was published last week. As a consequence I rather hope that he will feel able to withdraw his amendment so that we can table an amendment that will satisfy the concern that he has raised.
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