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Lord Goldsmith: Those of us who have sat as judges have had the experience of believing that there was absolutely no merit in what someone was saying, only to find that, on appeal, not only was there merit, but also that he was right and we were wrong. If the judge believes that it was wholly inappropriate even to have thought about the appeal, I have no doubt that he will make very clear his views when the prosecutor comes back and says, "No, after all, we are not going to appeal". And it frequently does happen in criminal courts, as in other courts, that, for all kinds of reasons, both prosecutors and defence ask for short adjournments to consider matters. While I am the last person to want to see delay in the courts, the kind of period that we are talking about—one designed to allow for a sensible decision to be made—is entirely justified.

Lord Lloyd of Berwick: Those of us who have sat as trial judges have always been brought up to believe that the question of whether or not to grant an adjournment is essentially a question for the trial judge, who has the feeling of the whole case. Those of us who have had the advantage of sitting in the Court of Appeal have always taken the view that to interfere with the judge's discretion in such cases is something that we will not do.

Lord Renton: I speak as one who did a lot of work as a recorder and, who, for two years, was an occasional relief judge at the Old Bailey. Circumstances can vary so much that it seems to be wrong to deprive the judge of the opportunity to refuse to grant the adjournment.

Lord Goldsmith: It is not a question of requiring the judge to allow the appeal to take place. That will be a matter for leave. It is our intention that important safeguards and guidance will be given to prosecutors so the adjournment is used judiciously.

It is important that an opportunity is provided to a prosecutor to consider properly whether that new procedure should be implemented in a given case. It is much better that there is an adjournment to allow that to take place than that people, as a result of a refusal of an adjournment, are simply driven into saying, "Well, then, I do wish to appeal". That will set in train the need to consult the Court of Appeal about whether an expedited hearing is possible.

Someone may reach the point of asking, for example, "I think that I may well want to seek leave to appeal. May I have a short adjournment until tomorrow

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morning in order to consider that and to consult?" If the trial judge says, "No, I do not think there is any merit in that", I respectfully suggest that in nine cases out of 10 the prosecutor will say, "Well, in those circumstances, I must now stand by my initial reaction, which is to seek leave to appeal and that is what I will do". That does not seem to be sensible at all. As far as the short adjournment is concerned, without in any way undermining our belief in the importance of judicial independence and the confidence in judges, we believe that it is appropriate to leave the word "must" rather than insert "may" in the provision.

Lord Thomas of Gresford: I am grateful to the noble and learned Lord the Attorney-General for his reply. The noble Lord, Lord Kingsland, beat me to the gun on the question of equating the prosecution's right of appeal in an interlocutory matter with the defendant's right of appeal at the end of a case. As he said, it is frequently the case that one succeeds in the Court of Appeal and establishes that a ruling made by the judge during the trial to allow evidence was wrong. The court then says, "But we think that the conviction was entirely safe". That has to be pure guess work. Let us take, for example, an "introducing evidence" point. On the one hand, the prosecution will perhaps have the right to introduce evidence before the jury following an appeal, but, on the other hand, the Court of Appeal may say to a defendant, "Well, that evidence was included and you were right to object to it, but you would have been convicted anyway". That is just a guess. One cannot equate one with the other.

I am impressed by the assurance of the noble and learned Lord that rules will be promulgated to deal with matters such as time limits. I inserted "seven days" in the amendment because it is essential that the prosecutor takes advice. I hope that any guidance from the DPP will make it clear that in the heat of the moment—and matters do become heated—it is not the prosecutor who will quickly take that decision to appeal. There should be time for reflection and consultation; that should be a matter of procedure. I see that the noble and learned Lord agrees with me on that point. I would be grateful if he would say so.

Lord Goldsmith: I was nodding in assent to the general point that the noble Lord was making. It is important that decisions are not made just in the heat of the moment. It is likely that, in those circumstances, advice will need to be sought. I rise because I would not want to give the impression of having agreed with every aspect of what the noble Lord said about what the guidance should be. The invitation that I made to the noble Lord, Lord Kingsland, to discuss these matters, including the issues touched on by subsequent amendments—which I will not be drawn into today—is of course extended to the noble Lord, Lord Thomas. I am sure that we would benefit if he were able to take up that offer.

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Lord Thomas of Gresford: I have a feeling that the noble and learned Lord has already made that offer to me in the course of earlier proceedings. For the reasons that I have given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132L to 132N not moved.]

Lord Thomas of Gresford moved Amendment No. 132P:

    Page 40, line 20, at end insert—

"(8) Where the prosecution informs the court in accordance with subsection (3) that it intends to appeal against a ruling, the judge must—
(a) order the expedition of the appeal;
(b) discharge the jury (if one has been sworn);
(c) grant bail to a defendant in respect of the charge or charges which are subject to the appeal."

The noble Lord said: I am concerned about what happens when a notice of appeal is given by the prosecution. As I indicated in the debate on the previous amendment, where there is a terminating ruling the person will be acquitted. Consequently, if he is in prison on remand, he will be released. If it is the view of the trial judge that he should be acquitted by reason of the terminating ruling that he has made, my proposed subsection (8) should come into play. Pace the noble and learned Lord, Lord Ackner, the judge must,

    "order the expedition of the appeal",

so that the matter is addressed quickly. He must also,

    "discharge the jury (if one has been sworn)".

Where there has been a terminating ruling, it seems quite wrong that the jury should hang around until the Court of Appeal has pronounced on the matter and then come back, maybe months later, to continue the trial.

Finally, the judge must grant bail to a defendant in respect of the charges which are the subject of the appeal. If he is on remand for other charges, or if the trial proceeds on other charges, so be it, he will not be released. But he will have the advantage of the ruling which has been made in his favour until the Court of Appeal states that it is wrong. Amendment No. 132P splits Clause 60, which deals with expedited and non-expedited appeals into two kinds—those which are concerned with a terminating ruling and those which are concerned with other rulings.

Coupled with that are Amendments Nos. 133E, F, H and J in my name. The proposal in Amendment No. 133F is that where the ruling is not a terminating ruling but an interlocutory matter, the judge must discharge the jury. Again, in my view it is wrong that the jury should hang around waiting for the Court of Appeal to decide on a particular matter. For the same reasons I have given in relation to Amendment No. 132P, the judge must grant bail in respect of the charge or charges which are the subject of the appeal.

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Amendments Nos. 133H and J are consequential to that principle. If the prosecution is going to exercise this new right of appeal, it has to be subject to stringent conditions as to time and as to what happens to the defendant and to the trial while that appeal is awaiting hearing. The noble Lord, Lord Kingsland, referred to 15 or 18 months currently for an appeal to be heard. I know of an appeal which is coming up in October resulting from a conviction three years ago. The pressure upon the Court of Appeal is enormous. We cannot have a system which stuffs the Court of Appeal with prosecution after prosecution appeal, expedited or non-expedited, and causes people who are awaiting appeals against conviction in the ordinary way to have to wait their turn. I beg to move.

2.30 p.m.

Lord Kingsland: I support the speech of the noble Lord, Lord Thomas of Gresford. In doing so, I want to ask the noble and learned Lord the Attorney-General what I hope he will not think a naive question.

Am I right in thinking that the effect of Clause 58(6) is that, if there is an application for leave to appeal against a terminating ruling by the judge, the judge must continue with the trial? Is that the effect of that provision? Or is there an obligation once leave is granted, to adjourn and either expedite or not expedite the appeal?

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