Criminal Justice Bill

Part of the debate – in the House of Lords at 4:00 pm on 30th October 2003.

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Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers) 4:00 pm, 30th October 2003

My Lords, perhaps it is simplest if I briefly state what I want to say and at least it will stand, if necessary, for the subsequent grouping.

A terminating ruling as hitherto defined in the Bill could cover a range of different kinds of ruling of which a ruling of no case to answer is only one. The effect of amendments would be to remove from the Bill a prosecution right of appeal against any terminating ruling, and would be much wider than simply removing a ruling on a no case to answer submission. I assume for present purposes that that is not the intention of those moving the amendments, and that only rulings of no case to answer are intended, although that is not the effect of the amendments as they stand.

This kind of ruling was the subject of discussion in Committee. I want first to discuss the implications of the government amendments on this issue. As currently drafted, it is possible for the prosecution to appeal only where the judge makes a ruling which either stops the trial or is so fatal that the prosecution brings it to an end by offering no further evidence. The prosecutor cannot ask the Court of Appeal to review any other rulings which preceded that fatal final ruling. However, a ruling of no case to answer is a special case. It may well be preceded by a number of earlier rulings, each of them incrementally weakening the prosecution case. The effect of some or all of those earlier rulings might contribute significantly to the judge's eventual decision to make the ruling of no case to answer.

For that reason, where the prosecution appeals against a ruling of no case to answer, we consider that it should be able to nominate such earlier rulings as it specifies for the Court of Appeal to review at the same time all as part of the same appeal. It seems to us that it is only sensible and logical that where the prosecution appeals against a ruling of no case to answer there should be arrangements for the Court of Appeal to examine formally those earlier rulings which led up to the eventual ruling of no case. In that way the Court of Appeal will have a better grasp of the case and as a whole will be able to review more effectively the judge's terminating ruling.

We say that this right of appeal is desirable in principle. Removing it would remove one of the main planks of the Bill. In the well known case of Galbraith the Court of Appeal decided that there were two kinds of ruling of no case to answer. The first, known as the first limb, applies where there is no evidence of at least one essential element of the case against the defendant. The second limb applies where there is some prosecution evidence but that taken at its highest it is such that a jury could not properly convict.

The first limb is concerned with a pure point of law on which the Government believe it would be entirely appropriate to enable the prosecution to seek a review of the trial judge's decision by the Court of Appeal. We agree with the Law Commission's conclusions on this point. There is no logical distinction between a terminating ruling of law made during the prosecution case and one made at its conclusion. The Law Commission stated:

"If a case is to fail on legal argument, it is better for public confidence in the criminal justice system that it should be susceptible to the second opinion of a higher court, than it be unappealable".

Again, the Government fully concur with that view. The Law Commission drew an analogy with the present case-stated procedure in magistrates' courts, which already provides for a prosecution right of appeal on a point of law in summary cases. That is, therefore, the first limb.

I turn to the second limb, the second kind of ruling of no case to answer identified in Galbraith; namely, one where a properly directed jury could not convict on the evidence. In its explanation of this kind of ruling, the Court of Appeal also reminded us that matters of evidence are normally within the province of the jury. Where on any one possible view of the facts there was evidence that a jury might convict, the case should be left to the jury; that is, only where the evidence is self-contradictory, out of reason and all common sense is it to be considered so inherently weak and tenuous that such a ruling should be given. I refer to the remarks of Lord Justice Turner in Shipping. In other words, where the second limb of Galbraith is concerned, judges should not normally be making a ruling of no case to answer.

I indicated in Committee that I would expect it to be exceptional in practice for the Court of Appeal to overturn a judge's ruling of no case to answer falling within the second limb of Galbraith. But, given the regularity with which such rulings are made and the nature of such rulings, it is vital that the prosecution also has the right to test this kind of ruling. I gave an example in Committee, which I shall not repeat; it is recorded in Hansard.

We consider also that it would be impossible to draw a line between the first and second limb of Galbraith. The distinction between there being absolutely no evidence for an element of an offence and there being some very tenuous evidence for it is too slight to provide a basis for an important procedural distinction.

One of the themes which runs through the Bill is that the jury should be allowed to hear and to decide upon the evidence. If the judge second guesses a decision which is normally for a jury to make, it is only right that the prosecution should be able to test the judge's ruling by an appeal to the Court of Appeal. If the prosecutor wins the appeal, the evidence will then go on to be placed before the jury and the final decision on conviction or acquittal will be for the jury to make.

For those reasons—I hope it has been helpful to deal with them at this stage—we consider that it is entirely proper that a ruling of no case to answer and, what is more, a ruling of no case to answer under both limbs, should fall within the ambit of the Bill. That is why in due course I shall resist the amendments which seek to remove that from the Bill. I beg to move.