My Lords, I am picking up on the words of the noble Lord, who said towards the conclusion of his remarks that the Government ought either to remove prosecution rights of appeal from the Bill or take another course. He therefore proposes that it would be acceptable that there should be no prosecution right of appeal. I strongly disagree with that proposition.
The noble Lord makes a fundamental point about equality of arms. Obviously, we have looked at the matter very carefully. The principle of equality of arms is one aspect of the right to a fair hearing under Article 6 of the European Convention on Human Rights. But the Strasbourg court has made clear that the question of whether a trial conforms to the standard required by Article 6 will be decided on the basis of the trial as a whole, including any appeal proceedings.
The principle of equality of arms involves striking a fair balance between the parties to ensure that the defendant has a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-a-vis the prosecution. The content and operation of the principle does not require that the parties to a criminal trial should have exactly the same procedural rights. The defendant always has a general right of appeal against conviction at the conclusion of the trial; the prosecution has no such right. We have not suggested that the prosecution should have such a right, even though some have recommended it, or that it should have a right to appeal against unreasonable jury verdicts. There is sufficient balance to the interlocutory appeal that we propose.
I am grateful to the noble Lord for thanking me for holding the meeting and writing to him and the noble Lord, Lord Thomas. I pointed out then—and he graciously accepted my point—that the case law of the Court of Appeal is such that it is not possible that the defendant would be disadvantaged in his appeal, by comparison with a prosecution right of appeal.
Let us bear in mind that, at this stage, we are concerned with only one kind of ruling. Such a ruling is so serious that it says either that the case cannot continue at all—if, for example, it must be stayed for abuse of process or because no offence is made out in law—or that certain evidence is inadmissible; for example, that the prosecution cannot continue with the case. We are concerned with a fundamentally fatal ruling by the court. If a judge faced with such an application decides that there is no fatal flaw, but the Court of Appeal disagrees on grounds that there was insufficient evidence and states that the case should have been stayed, it is inconceivable that the Court of Appeal would allow a conviction to stand.
The two cases to which the noble Lord, Lord Kingsland, referred make that very clear.