My Lords, first I thank the noble and learned Lord for giving such a full explanation of the government proposals. He was kind enough in his characteristically hospitable way to invite the noble Lord, Lord Thomas of Gresford, and me to talk to him about these matters the other day and we are extremely grateful to him for giving us that opportunity.
Perhaps I may explain to your Lordships why we have asked for Amendments Nos. 70A and 96 to be degrouped and treated separately. We have a hierarchy of concern about Part 8. Our main concern is based on the principle of equality of arms. What is sauce for the goose should be sauce for the gander. If the prosecution is to have a right of appeal against evidentiary decisions by the trial judge, why should not the defendant have a similar one?
That is our main theme, but we have two sub-themes. If the Government are to get their way on prosecution appeals only, we believe, first, that it should exclude appeals to decisions of no case to answer by the trial judge. In our view those decisions fall into a very special category.
Secondly, in order to contain the huge extra burden that will be imposed on the Court of Appeal Criminal Division there should be some constraint on the face of the Bill on the type of evidentiary decisions which are subject to appeal. As I shall explain to your Lordships, if I have the opportunity later today, those constraints would fall into two categories of evidentiary appeal: first, those which concerned errors of law and/or secondly, appeals against evidentiary decisions which were so unreasonable that no reasonable judge could possibly have come to the conclusion to which he came.
For the purposes of this group of amendments I shall address only the issue of principle, the issue of equality of arms. As noble Lords are well aware, the principle of equality of arms is laid down in the European Convention on Human Rights. There is some jurisprudence about it in the courts.
It seems to us that there is a real possibility that these provisions in the Bill breach that principle. The Government have already proclaimed that the Bill accords with the European Convention on Human Rights and that is an assumption that we all have to make in the course of considering the Bill. However, it is important at this juncture to signal that here is a possible area where the Government have made a misjudgment.
The matter was debated at some length in Committee. The noble and learned Lord the Attorney-General said in response to argument that the Opposition and, indeed, the noble Lord, Lord Thomas of Gresford, and the Liberal Democrat Front Bench, are wrong about their equality of arms proposition because a defendant will always have the right in appealing against his or her conviction, to argue, as part of his or her appeal, that the trial judge made an incorrect decision about the evidence.
That is of course perfectly true, but, as we pointed out, even if the Court of Appeal Criminal Division comes to the conclusion that the trial judge has made an incorrect evidential decision, it may go on to say that, nevertheless, the conviction is perfectly safe because a reasonable jury, considering the remaining admissible evidence, would have found the defendant guilty.
In our discussions the other day with the noble and learned Lord the Attorney-General, his response to that was to say, "Look at the Bill; look at the kind of decisions that prosecution appeals are aimed at. They are aimed at two types of decisions: first, terminating decisions, or decisions which would in effect be terminating; and, secondly—the other class of decisions which we have only just introduced at this stage—evidentiary decisions which would significantly weaken the prosecution case. Imagine the situation in which the defence had equivalent rights. Suppose in the Bill the defence"—as we would wish—"had the right to appeal against decisions that if the judge had made them correctly would have been terminating, or decisions which, if the judge made them correctly, would have significantly strengthened the defendant's case".
The noble and learned Lord went on to say, "Suppose these evidentiary decisions were appealed against at the Court of Appeal and the Court of Appeal held that the defendant's arguments were correct and that the trial judge was wrong. Would it be conceivable that the Court of Appeal would nevertheless have gone on to say that the conviction was safe? No, it would not", said the noble and learned Lord the Attorney-General, and he referred me specifically to two cases—the cases of R v. Sargent and R v. Smith. I went off and looked at Blackstone to refresh my memory, like a constable in the witness box, about the range of cases which had been decided on these matters over the past few years.
I have thought very carefully about the noble and learned Lord's argument. In the end I came to the conclusion that it was not convincing. My reason for deciding that relates to the very strong position taken by the Opposition about the principle of trial by jury—the right of a defendant, in a criminal trial, to be tried by his peers.
In the case of prosecution appeals under the Bill, the prosecution goes to the Court of Appeal, and whatever decision the Court of Appeal makes—unless it falls into the terminating category—the matter goes back to the criminal trial. The evidence continues to be heard within the context of the Court of Appeal's decision, and the jury takes the final decision. That will not be the case for the defendant. In the defendant's case, if his rights only remain to raise evidentiary points in the Court of Appeal after conviction, it will not be the jury that determines his fate, it will be the three Law Lords in the Court of Appeal who decide whether or not a reasonable jury would have come to a particular conclusion.
For those reasons we feel that it is perfectly proper, and indeed right, for us to continue to require either that the provisions for prosecution appeals are removed from the Bill or that the defendant is given similar rights to the prosecution.