My Lords, I am grateful for that intervention. The defendant's right to appeal is already enshrined in statute and applied in leading judgments and precedents of the courts. At present, there is no prosecution right of appeal at all during the trial, and that is why we seek to introduce one.
The two cases to which I have referred the noble Lord, Lord Kingsland, are important. It is worth referring to them briefly. In the case of Sargent, decided by the House of Lords, the noble and learned Lord, Lord Hope of Craighead, said:
"The question is, as Mr Houlder QC for the Crown accepted, whether the jury would inevitably have convicted"—
I repeat, "inevitably have convicted"—
"if the transcript of the interview had been edited so as to exclude all mention of the intercept".
The point in the case was whether the transcript should have been allowed in. In considering the appeal, the Court of Appeal thought that the trial judge was wrong in allowing it in. But the question was not whether they thought that the jury might have convicted, but whether it was inevitable that the jury would have convicted, if that evidence had not been in.
Secondly, in the case of Smith, the question arose of what should happen if the trial judge wrongly rejects a submission of no case yet the defendant goes on to give evidence. It is clear from the judgment of the Court of Appeal that the defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the prosecution case would be an abuse of process and fundamentally unfair. Even in the extreme case where the defendant goes on to give evidence, the conviction should be regarded as unsafe.
As I said previously in answer to the intervention of the noble Lord, Lord Thomas, in the event that a defendant pleads guilty on the basis of an incorrect ruling, the Court of Appeal will quash the conviction. Equally, it will quash the conviction if a stay ought to have been granted. We have a number of such examples going through the courts.
In the two cases of Francom and Togher, the Court of Appeal has made clear that fairness for Article 6 purposes goes along with unsafeness for appeal purposes. If something is unfair in accordance with Article 6 of the convention, the Court of Appeal will not allow the conviction to stand.
With respect, the equality of arms principle is not a good point to take. The defendant already has a general right which is even more extensive than the right that the prosecution here seeks. Finally, the noble Lord's argument fails to address at all my opening point. Under the head of prosecution rights of appeal, the prosecutor, when seeking leave, must say, "I accept and I agree that if leave is not granted or if leave is granted and the Court of Appeal dismisses the appeal, then this man is entitled to be acquitted".
No corresponding proposition is proposed for the defendant. Therefore, the effect of including the rights to which the noble Lord refers would mean that the defendant would have the ability to appeal any ruling—I repeat, any ruling—made by the judge with no sanction attached to it at all. If the Court of Appeal disagreed, the trial would simply go on. I repeat that that would simply bring the administration of justice to a grinding halt because appeal after appeal would be brought.
While I fully respect the concerns for the rights of defendants, the Government carefully considered those; the Law Commission considered those. The Law Commission did not see this as a problem—neither did we—because the defendant has the extensive right of appeal which gives him all the safeguards and a greater right than the prosecution would have.