Criminal Justice Bill

Part of the debate – in the House of Lords at 3:48 pm on 30th October 2003.

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Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers) 3:48 pm, 30th October 2003

My Lords, this, the first large group of government and opposition amendments, is broadly concerned with the prosecution rights of appeal listed in the Bill. Since the groupings were set out, I have come to understand that the Opposition desire to ungroup Amendments Nos. 70A and 96 and take them as two separate groups. I say that for the convenience of the House. I shall explain the government amendments first and then deal with the opposition amendments.

As the House is aware, the provisions are based on a Law Commission report and enjoy widespread support. I mentioned in Committee that we planned to refine them. The government amendments discharge my earlier commitment. There are five main points of interest.

First, the Bill as currently drafted grants the prosecution a right of appeal against two kinds of judges' rulings. There are those rulings which formally bring the trial to an end, and those rulings which do not formally terminate the trial, but are so fatal to the prosecution case that the prosecution feels bound to offer no further evidence. In the Bill, the two types of rulings are referred to respectively as "terminating rulings" and "certain other rulings".

There has been confusion among practitioners over the meaning of the clause on "certain other rulings"—the impression having been gained that it covered rulings which were not fatal to the prosecution case. As a result, we felt that those two separate sets of provisions could benefit from some improvement in order to reduce complexity and confusion. The first purpose of the amendments, therefore, is simply to combine the two separate clauses on what I will describe as formally and de facto terminating rulings into a single route of appeal. That has resulted in greater clarity and simplicity. I commend Parliamentary Counsel's work and I hope that noble Lords will agree that the result is much better. For the convenience of the House, we have placed since yesterday in the Printed Paper Office a version of this section as it would appear if the Government amendments were accepted, so that it can be seen as a whole. That has been sent to certain noble Lords in advance.

Secondly, we have replaced the judge's obligation to grant an adjournment at the beginning of the appeal proceedings with a discretion to do so. As currently drafted, the Bill enables the prosecution to appeal against a ruling immediately or to ask for an adjournment to consider whether to appeal. Under the present drafting of the Bill, the judge is required to grant the adjournment on the grounds that, if the judge declined to adjourn the proceedings, the prosecution would have no time to consider whether to appeal and would exercise without proper forethought the power which it has to appeal immediately. Our concern was to reduce the potential for possible unmeritorious appeals lodged in the heat of the moment.

This matter was much discussed in Committee. Noble Lords impressed upon us that the judge's discretion should not be fettered in such a way. They also suggested that there might be exceptional circumstances where an adjournment would be inappropriate and that the factors which might give rise to the need for an adjournment might only be known to the judge. Having considered that, and while emphasising that the only purpose in imposing that obligation was to ensure that there was time for reflection so as to keep down unmeritorious appeals, we have accepted the points made and therefore propose to leave the question of whether there should be an adjournment to the discretion of the judges. I hope that noble Lords who spoke in Committee for discretion will be pleased with our stance. I also make clear in passing the Government's intention that the granting of adjournments under this provision is likely to be subject to Rules of Court or such other guidance as may be necessary. That will be for the appropriate rules authorities to set down.

The third point of interest relates to rulings of no case to answer. Where the prosecution appeals against a ruling of no case to answer, we propose to allow it to nominate such earlier rulings as it specifies for the Court of Appeal to review at the same time. I shall say more about the matter later when I consider the Opposition amendments.

Fourthly, the government amendments deal with the matter of timing. The intention underlying the Bill in its original form was to restrict the prosecutor's right of appeal against formally or de facto terminating rulings to those rulings made before the end of the prosecution evidence. We had been intending—I signalled as much—to amend the Bill to extend that time limit to cover rulings made at "half time", but before the opening of the defence case. After further consideration, we have reached the conclusion that that would not go far enough and the amendments will therefore enable the prosecution to appeal against a terminating or de facto ruling which is made up to the end of the trial, but not after the judge's summing up has begun.

The reason for that is practical. It had been considered that judges' rulings made after half time would be so infrequent as to give no cause for concern. That matter had been considered before. The only possibility of such a ruling identified in the Law Commission report on prosecution appeals was a ruling on disclosure. However, there has been a recent case where a decision to stop the trial was made by the judge after the conclusion of the defence evidence. It is clear, therefore, that the prosecution right of appeal needs to cover rulings made late in the trial. I anticipate that those would be the exception.

Fifthly, we have amended Clause 53, which sets out the options the Court of Appeal has when it determines the appeal, to limit the clause to terminating rulings. We have also tightened up the drafting of the clause in response to comments made by noble Lords in Committee. The overall effect of these government amendments will be to make the existing provisions on prosecution appeals more practically effective and clearer to follow and implement.

I turn now to the opposition amendments, doing my best not to touch on those which have been ungrouped. I shall indicate briefly the Government's position on those amendments. Noble Lords will then speak to them with that in mind. Amendments Nos. 72, 73, 79 and 81 appear to have the aim of giving the defence the equivalent of the prosecution right of appeal against a de facto terminating ruling. As I have explained, the Bill presently gives the prosecution a right of appeal against a ruling which is formally or de facto terminating. Although the prosecutor can theoretically appeal against any ruling as a de facto terminating ruling, the requirement is to accept an acquittal in the event of losing the appeal. That means that the prosecution can appeal only against rulings which are fatal to the prosecution case. Those rights of appeal had the support of the Law Commission, which stated that introducing them was largely equivalent to a defence right of appeal against conviction.

There is no direct equivalent for the defence of a de facto terminating ruling. There is no ruling that a judge is capable of making which would end the trial in the prosecution's favour with the defendant's conviction. So the attempt to create the direct equivalent of a prosecution appeal which the amendments envisage is wrong in principle. In practical terms it would be disastrous. Without the sanction of losing the case in the event of losing the appeal, the defence could and would appeal against any ruling made by a judge. Trials would grind to a halt and the criminal justice system would suffer considerable disruption. That is in nobody's interest.

In this group of amendments I am dealing with prosecution appeals against terminating rulings or de facto terminating rulings. In a later grouping we shall come to the proposed addition of a right to appeal against evidentiary rulings. I wish to keep those two rights of appeal separate in this debate, as do the groupings.