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Lord Ackner: I stated at the outset that the amendment was designed to do away with some of the anomalies which exist between the discretionary life sentence and the mandatory life sentence. I am bound to say that the Minister has not really addressed her mind to that issue. Section 34 of the 1991 Act has almost entirely escaped her observations. Section 34 of the 1991 Act gives the judge the right in open court to specify the tariff; and when he does so there is a right of appeal. In order to ensure that it became the practice of judges in discretionary life sentence cases to indicate what the tariff was, except in exceptional circumstances, my noble and learned friend the Lord Chief Justice issued a practice direction that judges should use Section 34. I have not heard any criticism from the Government with regard to that practice direction; and I cannot see why, if the amendment is allowed, an analogous practice direction requiring judges, except in exceptional circumstances, to make the minimum recommendation in all murder cases is open to any criticism. It is a complete analogy. That is where the anomaly exists: that cannot as yet be done.

In my respectful submission, the noble Baroness overlooks this point. On the one hand, she says that the Home Secretary takes very seriously—it is a very important element in his thinking—what the judicial

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advice is as to the minimum period. But she rejects the opportunity of that advice being the best advice that can be obtained—not the advice merely of the trial judge, but, if he has got it wrong, the advice of the Court of Appeal (Criminal Division). It is difficult to follow on what basis the opportunity to have that advice is rejected.

The noble Baroness says—I think that it is complete misunderstanding on her part as to what has been suggested—that the view of the Lord Chief Justice as at present will always be wanted. But that overlooks the fact that the Lord Chief Justice is presiding in the Court of Appeal (Criminal Division) in the cases where there are appeals from the trial judge's recommendation. The Home Secretary not only has the benefit of his advice as a result of the decision of the Court of Appeal (Criminal Division) but the advice of a Lord Chief Justice who has had the advantage of sitting in a Court of Appeal and—I stress this—having the case argued in front of him. At present, he makes the decision perhaps after consultation with the trial judge, with no argument, and without the assistance of members of the Court of Appeal. I do not follow why the amendment should in any way be rejected. I give way to the noble Baroness.

Baroness Blatch: I am most grateful to the noble and learned Lord for allowing me to intervene at this point. It is true that Parliament has taken the view supported by my right honourable friend the Home Secretary that there should be a distinction between murder and other crimes which are subject to life sentences. That is the point at issue. There is not only a distinction but a distinct process through which cases have to go and it was that to which I spoke. It is for the Committee to address the issue that those guilty of murder should be treated under the same system as those treated under the discretionary system, but that is not the case. The amendment simply interferes with that distinct process for the category of murder as opposed to other crimes which are subject to life sentences.

5 p.m.

Lord Ackner: With the greatest respect, the distinction between the two sentences is that in the discretionary life sentence the Home Secretary has no entitlement at all to determine the period that the prisoner spends in prison. It is determined by the trial judge and subsequently by the Parole Board in relation to what remains after the tariff has been settled—namely, that part that is necessary for the protection of society.

In the mandatory life sentence, the Home Secretary has the ultimate discretion as to when the prisoner should be released. That is the distinction and no interference of any kind is being made in that distinction. What is being provided is, no doubt in many cases, better quality advice from the judiciary as to what the minimum period should be, as a result of an appellate process which is open and capable of being argued. The Home Secretary remains fully entitled to ignore that advice. The impression I receive is that the Home Secretary is deeply concerned that he will be criticised the more for disregarding the advice because that advice will have been given in open court by the Court of Appeal after argument. However, the present process is a secretive one with no argument,

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no appeal and the prisoner himself only entitled to the gist of what has gone on. That ensures that the public is insulated from the true situation. Therefore, the Home Secretary can—as he does—alter essentially upwards the judicial tariff without being open to public criticism.

I gather from the resistance and the way in which the Government have presented their resistance that the Home Secretary is anxious to remove himself from the criticism that might occur were he flagrantly to ignore the advice of the Court of Appeal (Criminal Division) as to the justified minimum period.

That is so unsatisfactory a way of dealing with the amendment that I would have been minded to divide the Committee but for a simple matter. Members of the Committee have had the advantage, for what it is worth, of retired Law Lords giving their views and the great advantage of the views of the present Lord Chief Justice. But the Committee has been denied the views of the sitting Law Lords because of the current outstanding application for leave to appeal in the Leaney case. Accordingly, I beg leave to withdraw the amendment, purely on that basis that I intend to return to it at Report stage. By that time, we may know more about whether there is to be an effective appeal in the Leaney case.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Lord Campbell of Alloway moved Amendment No. 2:

After Clause 1, insert the following new clause:

("Applications to quash indictments appeals

. Where a person makes an application, on or before arraignment, to quash an indictment laid against him, on the ground that in the circumstances of the case the lapse of time from the time when the offence was alleged to have been committed to the date when the prosecution was instituted—
(a) is likely to cause substantial prejudice to the defendant in the conduct of his defence; or
(b) is likely to make a fair trial impossible,
an appeal shall lie to the Court of Appeal (Criminal Division) from the decision of the Crown Court granting or refusing the application.").

The noble Lord said: The object of the amendment is four-fold. First, it is to confer direct appellate jurisdiction on the Court of Appeal (Criminal Division) to entertain an appeal from the Crown Court in respect of a decision to grant or refuse an application to quash an indictment on grounds of delay. It would thus avoid the expense, inconvenience and untoward publicity of a trial which should never have taken place.

Secondly, it will enable a preliminary submission to be made before arraignment and so avoid the summoning and empanelling of the jury and arrangements for a substantive trial, including the attendance of witnesses. At the moment, preliminary submissions are made after the jury has been empanelled but before plea. All the witnesses are there and all the arrangements have been made for the trial.

Thirdly, it is to confer jurisdiction on the leave to be granted by the Crown Court or the Court of Appeal (Criminal Division) to stay the proceedings on substantive trial on grounds such as the alleged abuse of

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process, pending the decision of the appellate court. So in a sense and to a large measure it entirely reflects the procedure which operates in Scotland.

Lastly, its purpose is to avoid substantial prejudice to the defence or the prospects of a fair trial—the most usual ground upon which the application is made.

During the passage of the War Crimes (Supplementary Provisions) Bill, the noble and learned Lord, Lord Bridge of Harwich, moved an amendment substantially in that form. I am relieved to see him in his place. The amendment was carried without dissent. The noble and learned Lord was of the opinion that it was a matter of such importance, being concerned with the exercise of judicial discretion under the inherent jurisdiction of the Crown Court, that it was appropriate that such a decision should be subject to the direct appellate process; it should not be left to a single judge, and the Crown as well as the defence should have a right of direct appeal. The noble and learned Lord felt that a provision along those lines should be of general application and not limited to indictments laid under the War Crimes Act.

The noble and learned Lord put it so clearly that with the leave of the Committee I propose to quote what he said:

    "A decision whether or not the prosecution should proceed when it is very stale and when an application for stay on the grounds of abuse of process has been made is a difficult one. As I understand it, it is a decision partly of law and partly of discretion. It is a decision in which a judge may clearly err, and some judges have erred in the past. Not only, in my view, is it desirable—as a matter of general law, quite independently of war crimes trials—that the law should be amended so as to render such a decision subject either to review or appeal in a case where an application to stay has been refused, to avoid what may turn out to be a long, expensive and quite unnecessary trial, it is perhaps even more desirable that the prosecution should be able to appeal against the wrongful grant of stay when, if the stay has been wrongfully granted, the defendant will wrongly and unjustly escape the prosecution altogether. But if that amendment to the law is desirable in general, which is the view that I would commend, it is still more particularly desirable—indeed, I would say essential—in war crimes cases".—[Official Report, 1/2/95; col. 1576.]

The noble and learned Lord then pointed to the fact that in war crimes trials it was inevitable that an application would be made in each case. He said:

    "In my submission, it would be right that the burden and responsibility of pronouncing the last word in such circumstances on the question of whether or not the prosecution should go ahead should rest with a single judge. It would be right that it should be subject to an appeal to the Court of Appeal (Criminal Division)".—[col. 1577.]

My noble and learned friend the Lord Chancellor appeared to take a somewhat similar view to the questions of drafting; namely, that one day the introduction of a general provision along the lines proposed by this amendment should be considered. He said:

    "We are therefore agreed that at present, under the law, no intervention is possible by any higher court in a decision of this kind unless it goes in favour of the prosecution and the review will only take place after the matter has proceeded. It may therefore be subject to appeal if there is a conviction.

    I can understand the argument that there should be some form of possible appeal at that stage generally. The argument that there should be a right of appeal by the defence is usually met with the answer that, if the whole matter goes against the defence, they will have the right of appeal at the end of proceedings under the present law. But as my noble and learned friend forcefully pointed out, there is no such provision for the prosecution. Therefore one can find that the decision of a judge at first instance in relation to a prosecution generally, not

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    just in relation to war crimes, may defeat the prosecution with no effective appeal in a situation where some may feel that the judge's decision was at least open to question.

    That is a question of general importance and there is much to be said for it being considered".—[col. 1578.]

My noble and learned friend then said:

    "The general matter is one on which different views may be expressed. I can see that in the future your Lordships' House may be asked to consider the matter as a general question".—[col. 1578.]

Therefore, on the basis of the analysis and the argument of the two noble and learned Lords, I rest this amendment. It would not apply in a multi-count indictment unless an application to quash on all counts on grounds of delay had been granted or refused, at least as at present drafted. It would not apply to an application to quash an indictment on any ground other than delay—entrapment, for example—as at present drafted; or while the charge as laid was misconceived as not being supportable on the evidence sought to be adduced, taking the evidence at its face value.

So it could be that noble Lords, or indeed the Government, may consider that the scope and incidence of this amendment should be enlarged, as the jurisdiction of the Court of Appeal (Criminal Division) is as provided by statute which excludes the exercise of inherent jurisdiction. That lies only within the exclusive remit of the Crown Court trial judge. It is only on conviction that the Court of Appeal (Criminal Division) may correct an erroneous decision of that type and set it aside or order a new trial on grounds which include a refusal to quash.

There is a strong case in principle for the introduction of the proposed amendment, irrespective of redrafting or putative enlargement, to include perhaps any abuse of process, to which I believe the noble and learned Lord, Lord Bridge, referred. Such is the spirit in which this amendment is moved, in the hope, first, that in the light of today's debate it may be largely acceptable to all sides of the Committee. And in the hope that the Government will introduce their own amendment at a subsequent stage—one hopes at Report stage—and indulge in a measure of consultation with noble and learned Lords who are interested in this matter. I have no intention of dividing the Committee today. I beg to move.

5.15 p.m.

Lord Bridge of Harwich: The Committee may well feel that it has heard enough from judicial voices for one afternoon. But I hope that I may be allowed briefly to express my support in principle for the amendment, although I should wish to see it more widely drafted, so as to apply to any application to stay proceedings on indictment on the ground that the prosecution was an abuse of the process of the court. I shall be brief, for the additional reason that the noble Lord, Lord Campbell of Alloway, has already quoted my views expressed on this subject on an earlier occasion.

An application to stay a prosecution on the ground that it is an abuse of procedure, which may be normally on the ground of delay but may also be on other grounds, always raises a serious question, often raises a difficult question and is not an issue which, in my submission, should be left for final decision by a single Crown Court judge, who may be a High Court judge, circuit judge, a recorder or an assistant recorder.

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It is perfectly true that if an application to stay is refused and the trial proceeds, there will be an opportunity, if the defendant is eventually convicted, for him to appeal against his conviction. But that is small consolation. The truth is that, where a prosecution has been brought in circumstances which make it an abuse, the defendant ought not to have had to undergo the trauma of standing trial. But as the law now stands, the case is still worse where the Crown unsuccessfully resists the application for a stay of proceedings and the judge grants a stay. In that situation, the Crown has no remedy. If the judge has granted the stay on inadequate grounds, the result is that a guilty man, who probably richly deserves to be punished, walks free and there is nothing that the prosecution can do about it. To my mind, that is a grave defect in our criminal procedure which cries out for remedy.

I understood from the passage which my noble friend cited from what was said by my noble and learned friend the Lord Chancellor on the occasion of the Committee stage of the War Crimes (Supplementary Provisions) Bill, that my noble and learned friend the Lord Chancellor gave at least a qualified welcome to my general proposition that that was an aspect of the criminal procedural law which required remedy. I hope that the noble Baroness the Minister will at least be able to tell us that the Government will favourably consider introducing such a provision.

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