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Criminal Justice Bill
3.30 p.m.
Clause 59 [Appeals against certain other rulings]:
Lord Ackner moved Amendment No. 133:
- Page 40, line 32, leave out "must" and insert "may"
The noble and learned Lord said: Before moving the amendment, I must say that it is a great pleasure to see the noble Lord, Lord Kingsland, back with us again. His effortless advocacy always reminds me, somewhat nostalgically, of a well run tutorial.
I listened with great care to what the noble and learned Lord the Attorney-General said. Despite that, I wish to move the amendment. The reason is simply that the noble and learned Lord, with almost bromidal efforts, has emphasised the degree of co-operation that has been provided by the judiciary, as well he might. The paragraph of the report produced by the noble and learned Lord, Lord Woolf, that reflects his views and those of all the senior Court of Appeal judges who are involved with crime says in terms that the judiciary has no objection to a right of appeal in relation to a terminating ruling or a non-terminating ruling, as proposed, as long as the Court of Appeal is given the necessary resources.
The important point is that appeals must be brought with the leave of the trial judge or the Court of Appeal, as set out in Clause 57(6). The concern is the obligation that is placed on the judge to grant an adjournment. It would have been preferable if the judge had had broad discretion as to whether to grant an adjournment. In his most recent observations, the noble and learned Lord the Attorney-General drew attention to Clause 60, under which the judge has full discretion. He says that that allows for flexibility. Indeed it does; it is the same flexibility that I seek now.
The noble and learned Lord's resistance shows the lack of confidence that the executive has, from time to time, in the judiciary. I believe that that will be emphasised later. It will be highlighted when we come to sentencing. The Home Secretary's revenge on the Court of Human Rights is reflected in Schedule 17, which places on the judiciary an obligation to impose sentences about 50 per cent above the agreed—when I say "agreed", I mean agreed with the Home Secretary—guidelines that were brought in the previous year. It is also reflected in the constitution of the new sentencing council and in the minimum terms for burglary.
That is why the amendment is important, and that is why I move it. I beg to move.
Lord Renton: I support the amendment. The noble and learned Lord the Attorney-General gave strong reasons against the use of the word "must" in Amendment No. 132P. It has been a necessary part of our system of justice, in order that justice may be achieved, to give the judiciary the widest discretion possible in the circumstances, which vary so much. I would have thought that it was even more important that, under Clause 59, the judge should have the widest
discretion possible and that he should not be tied down to a particular exercise of that discretion. The noble and learned Lord, Lord Ackner, has made an important point that the Government should acknowledge.
Baroness Warnock: As a non-lawyer, I support the amendment strongly. As the noble and learned Lord, Lord Ackner, said, this is the first of many clauses and schedules that we will discuss—Schedule 17, in particular—but, as it is the first, it is important that a marker should be put down here.
It is extraordinary that the Government, who have properly insisted, in another context, on the separation of powers and the protection of the judiciary from any interference—or suspicion of interference—by government, should insist on these clauses and the clauses that we will discuss later. In those clauses, political interference in the powers of the judiciary becomes more and more manifest, but this clause is the first that presents those of us who feel strongly about that with the possibility of pointing that out.
In the view of non-lawyers such as myself, there is a danger that the political element can often be over-influenced by elements of the press that are extremely insistent on the horrors of crime and the way that crime must be dealt with. That will come up again strongly with regard to sentencing. I deplore the thought that the national press should have any influence on sentencing in the courts. But this is the first instance in the Bill where the danger shows itself. It is for that reason that I strongly support my noble and learned friend.
Lord Thomas of Gresford: As the noble Lord, Lord Renton, pointed out, the Attorney-General's argument against my "mandatory procedural requirements", as he puts it, in Amendment No. 132P was so overwhelming that I feel obliged to support this and restore discretion to the court.
Lord Goldsmith: This is an odd situation because the noble and learned Lord, Lord Ackner, had already spoken to this amendment in the second grouping. Indeed, I invited him to say whether he wanted to speak to his amendment at that stage, which he did. So I already have responded to his amendment. I see that the noble Lord, Lord Renton, wishes to intervene.
Lord Renton: Perhaps I may ease the conscience of the noble and learned Lord. It is a custom in this House, which has prevailed for a long time, that the grouping of amendments is merely to help discussion when the amendments to some extent overlap. But it always has been part of the freedom of noble Lords to deal separately with any amendment in any group if the need to do so arises. That is why the noble and learned Lord, Lord Ackner, with the very strong point that he had, has done so.
Lord Goldsmith: I did not intervene to prevent either the noble and learned Lord, Lord Ackner, saying anything, or the noble Lord, Lord Renton. As the
noble Lord, Lord Renton, raised it, my understanding is that it certainly is open to any noble Lord to ungroup an amendment from the grouping. The noble and learned Lord, Lord Ackner, did not seek to do that. Be that as it may, this is by way of explanation, for example, to the noble Baroness, Lady Warnock, who I did not notice in the Chamber before lunch. I may be wrong and if I am wrong, I apologise. I gave the answer to the amendment proposed by the noble and Lord, Lord Ackner, earlier. Perhaps I may point out that this is not the first opportunity for this point to be made. The debate before the Statement will reveal what I had to say about the independence of the judges and my confidence in them. I shall summarise the response that I gave.A short adjournment—we spent quite some time talking about a short adjournment—should take place so as to enable a prosecutor not in the heat of the moment, as the noble Lord, Lord Thomas of Gresford, said, to be forced into a decision, but to consider out of the heat of the moment whether it is appropriate. It is so as to avoid that situation that it is right that there should be an adjournment. That is what the Bill seeks to do. I continue to resist the amendment.
Lord Ackner: I still lack a proper answer to the points which I have made. I am sorry that the noble Baroness, Lady Kennedy of The Shaws, has just left the Chamber because I thought that she made a most impressive speech when we were dealing with juries this week. I complained that behind such amendments was the Treasury hand seeking justice which satisfied its views of justice being returned in a manner which it thought the most economic.
The noble Baroness, Lady Kennedy, provided an additional and stronger reason. Behind this amendment, and the others when we come to sentencing, will be found the desire of the executive to exercise control over elements of the criminal justice system. However, this is neither the right time of day nor the right stage in the term to force Divisions. I accordingly ask leave to withdraw the amendment, but promise that it is really part of a strategy for mieux sauter when we reach the Report stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 133A to 133C not moved.]
3.45 p.m.
Lord Thomas of Gresford moved Amendment No. 133D:
- Page 41, line 2, at end insert—
The noble Lord said: All I require from the noble and learned Lord is for him to say that the judge will obviously order the acquittal of the defendant in the circumstances envisaged in this amendment. His reassurance is all that I seek. In my respectful view, it would not be open to the judge to do anything other
Lord Goldsmith: The scheme of the Bill is to enable the prosecution to appeal against any ruling terminating from the prosecutor's point of view. The provisions require that the prosecution accept an acquittal under the Bill as drafted. Clause 62(2) provides for the Court of Appeal to order an acquittal where the prosecution loses the appeal. I accept that it is silent as to what happens after the prosecution abandons an appeal or fails to obtain leave to appeal in the first place. I understand therefore why the amendment has been put forward. I undertake to take away the amendment and to consider it with a view to making our views known further on Report. I hope that that will be sufficient for the noble Lord's purposes.
"(7) Where the prosecution has agreed that the defendant shall be acquitted in the circumstances mentioned in subsection (5) and either of the conditions mentioned in subsection (6) are fulfilled, the judge shall order the acquittal of the defendant accordingly."
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