My Lords, I support everything said by the noble Lord, Lord Kingsland, on the topic. I shall not repeat his arguments. Perhaps I may give an illustration of the kind of situation which we both have in mind. The matter is very fresh in my mind, having sat through a judgment that took one and a half hours this morning.
Let us suppose that under the Bill—the Bill having been put into effect—an application is made in the course of the defence for the defence statement to be put before the jury, and the judge rules against it. The trial proceeds and ultimately the defendant appeals on the basis that the judge's ruling was wrong and that the defence statement, had it been before the jury members, might very much have influenced their minds. It would, for example, have rebutted inferences that might be drawn under Section 34 of the 1994 Act, where a person does not answer when questioned in a police station; he does not give facts upon which he subsequently relies.
Let us further suppose that the case then goes to appeal—and the appeal that was heard today is more than three years since the date of the beginning of that trial—and the judges in the Court of Appeal were to decide that the defence statement should in all fairness have gone before the jury; but, they look at the facts and at the prosecution case and they conclude that, notwithstanding their ruling in the hypothetical situation I am putting forward, the conviction was safe anyway. That is simply not the kind of situation that arises if there is a prosecution appeal on a matter envisaged under these provisions. Under these provisions, if it were held that the judge was wrong to exclude some evidence the prosecution wanted to put before the jury, the trial goes on and the defendant remains at risk.
The noble Lord, Lord Kingsland, is absolutely right to point out that there is no equality of arms in these provisions. We should not be enacting legislation which contravenes a basic principle of the European convention. For those reasons, we on these Benches will support the noble Lord, Lord Kingsland.