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Lord Thomas of Gresford: I am very grateful for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 agreed to.

Clause 60 [Expedited and non-expedited appeals]:

[Amendments Nos. 133E to 133J not moved.]

Clause 60 agreed to.

Clause 61 agreed to.

Clause 62 [Determination of appeal by Court of Appeal]:

Lord Kingsland moved Amendment No. 133K:

"reverse or vary the ruling appealed against where the ruling—
(a) was wrong in law;
(b) involved an error of law; or
(c) was one which no reasonable judge could have reached;
and in all other cases the Court must confirm the ruling."

The noble Lord said: Amendment No. 133K is an addition to Clause 62(1). It would add, at the end of the present wording,

    "where the ruling—

    (a) was wrong in law;

    (b) involved an error of law; or

    (c) was one which no reasonable judge could have reached; and in all other cases the Court must confirm the ruling".

There is a general and a particular motive behind the amendment. The general motive is that if the jurisdiction of the court is not constrained in this, or a similar, way it is likely to be swamped with appeals from the prosecution. It will be particularly easy for the prosecution to seek to appeal decisions by the criminal judge which are purely fact based and, very quickly, the predictions that the noble and learned Lord made about the likely burden on the Court of Appeal will have been proved wrong.

There is also a particular reason for the amendment, especially subsection (c), which concerns appeals against a decision by a judge of no case to answer.

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A decision by a judge of no case to answer at the end of a prosecution case is essentially a fact-based decision. It is either the view of the judge that there is no prosecution evidence at all against the defendant or a view that, although there is evidence, it is so slender that it carries no weight.

In my submission the situation is simply this: if a judge's decision that there was no case to answer is so unreasonable that no reasonable judge could have reached that decision, then I accept that that is fair enough. Earlier in the proceedings the noble and learned Lord the Attorney-General gave a good example to the Committee in relation to a rape case. But if a judge could reasonably have reached the decision, surely in those circumstances there is no case for the Court of Appeal to intervene. I beg to move.

Lord Thomas of Gresford: Noble Lords on these Benches strongly support this important amendment because it will limit the prosecutor in considering whether to appeal, in particular, a terminating ruling. The noble Lord, Lord Kingsland, referred to rulings of no case to answer. If the Court of Appeal were to be invited to rule on no case to answer decisions, it really would be swamped. It would be necessary for transcripts of all the evidence to be placed before it and the appeal judges would need to second-guess the trial judge, who would have had the opportunity to hear the witnesses, to assess their veracity and so forth. It would be an impossible task. For those reasons, we support this amendment.

Lord Goldsmith: When I spoke earlier about the purpose behind this part of the Bill, I referred to the existing right of appeal for the defendant. At the end of the trial, the defendant has the right of appeal against both the conviction and the sentence. The prosecution has no right of appeal against decisions made by the trial judge which end the trial. I stress that we are talking about decisions made by the judge, not by the jury.

The Bill seeks to create a right of appeal which is equivalent to that for the defendant, but with very different requirements in relation to the circumstances in which it is brought. The appeal can be brought only with the leave of the trial judge or of the Court of Appeal. That is a very important provision because it is through that provision, together with the guidance which the Director of Public Prosecutions will give to Crown prosecutors—I envisage that other prosecuting agencies will be given similar guidance—that the number of appeals made will be limited.

In moving the amendment, the noble Lord, Lord Kingsland, made two points. The first was his concern about the number of appeals that may be brought, which is an important consideration. We have already touched on it in the course of our Committee proceedings today. It is a matter which, for example, concerns the resources to be provided for the Court of Appeal. I estimated the level of costs to ensure that the Court of Appeal would have the necessary capacity to deal with such cases. But that will

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be controlled by the leave requirement and by the guidance which will be given, as well as by the general principle, to which I have also referred, that this right of appeal is one to be exercised judiciously and sparingly.

However, I do not agree with the noble Lord's second point, to the effect that there should be some necessary limitation on the basis upon which the Court of Appeal could allow the appeal. I readily accept as a matter of fact that if the Court of Appeal is asked to review an exercise of discretion by a trial judge, then the court, in deciding whether to allow an appeal against that discretion, is unlikely to or perhaps even never would do so if it thought that the discretion was one which could reasonably have been exercised by the trial judge in the way that he did.

Equally, I readily accept that in this case, as it is in all others, the Court of Appeal is likely to recognise the specially privileged and favoured position that the trial judge will be in if it comes to a question of assessment of evidence because the trial judge will have seen and heard the witnesses. These are reasons why, in a case which turned on a question of discretion or on a question of fact, it is very likely that the leave requirement will be operated in such a way that the court will simply not grant leave in cases which would require that kind of exercise. Moreover, once the jurisdiction is up and running, the kind of cases that the Court of Appeal would or would not be prepared to entertain would become apparent from its decisions.

However, there will be cases in which, in the Government's view, it would be appropriate for the Court of Appeal to say, "Yes, it is true that this turns on a question of fact, but on looking at it we are in a position to judge—and it is so important that we can judge—that on this occasion it is legitimate for us to say that this particular ruling from the judge, although it turned on a question of fact, was wrong". I strongly suspect that those will be exceptional cases. If we are to provide a right of appeal which will enable the prosecution to test important rulings of the trial judge, it should not be restricted in the way proposed in the amendment. In short, therefore, the control will be through the discretion of the court.

I am loath to give further ammunition to those who complained about an earlier amendment, Amendment No. 133, but that is where the judgment and discretion will lie. So I resist the amendment.

4 p.m.

Lord Mayhew of Twysden: I was in my place before the Statement. Perhaps the noble and learned Lord can help me on a matter to which he alluded before the adjournment and to which he has returned in this debate. Guidance is to be given to prosecuting authorities as to how this new jurisdiction to appeal shall be exercised. Before the adjournment, the noble and learned Lord referred only to the director; he has now referred to other prosecuting authorities receiving no doubt similar guidance. Where is the guidance for these authorities to come from? Will the guidance

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come essentially from the Attorney-General—who superintends, by statute, the Director of Public Prosecutions—through the director?

What kind of guidance will it be? This new jurisdiction cannot be exercised except with the leave of the court; that is to say, either from the trial judge or the Court of Appeal. I can visualise a trial judge who has made a controversial decision being very reluctant to refuse leave, particularly when Parliament has so recently gone to the trouble of making this appeal available. How will the guidance assist either the judge or the prosecutor?

Words which have a familiar ring have been used; for example, "sparingly"—what does that mean? It is a good fudge word, but what does it mean? What are you sparing? Sparing its use, perhaps, but surely not to the extent of not making use of this new facility in a proper case. What is a "proper case?" That is another good fudge expression that lawyers are used to. Then we have the word "judiciously". We hope that everything done by a prosecuting authority is done judiciously.

How will is this guidance be shaped? How will it help? If it is to come from the Attorney-General, it is difficult to see how, for example, the Commissioner for Customs and Excise can be so guided by the Attorney-General. Is there not a wee embarrassment in the fact that the Attorney-General, although not a member of the Cabinet, is a member of the Government at a time when they are looking so closely at anything which might give rise to an adverse perception?

Lord Goldsmith: The debate has ranged quite widely. I hope that all Members of the Committee will recognise that making the leave of either the trial judge or the Court of Appeal a requirement of this new right we are already putting within the hands of the judiciary and the Court of Appeal a strong power to regulate the number and type of cases they hear. I have no doubt that once the jurisdiction starts the Court of Appeal will make clear the kind of cases it expects to see. That may not be by way of a single judgment at the outset, but it will become apparent as the jurisdiction develops and the Court of Appeal will indicate what kinds of cases are appropriate.

In addition, as I indicated in the letter I sent to the noble Lord, Lord Kingsland—a copy of which is in the Library and which includes the statement to which I referred earlier—the Director of Public Prosecutions intends to develop internal guidance for CPS prosecutors. I have no doubt that the director will show me the guidance that he has in mind to issue. I expect that guidance to include not only matters such as the kinds of cases concerned but who should be consulted, whether or not a matter should be looked at by a chief Crown prosecutor, and so on. I do not seek at this stage to say what the guidance will be.

I hope that the Committee will find that statement helpful because it indicates that people will look at this issue in a way which, subject to the overall control of the court, will lead to cases being brought only where it is appropriate to do so.

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The noble and learned Lord criticised me for saying that the power will be used "sparingly". With all respect to him, I find the expression perfectly intelligible. As to whether the power will be used "judiciously", I am glad that the noble and learned Lord said that all things that prosecutors do are judicious. In that context, I was saying that thought will be given as to how it should be exercised. I protest that the powers and controls are strong and adequate.

The noble and learned Lord asked me about the position of other prosecutors. He cited the example of HM Customs and Excise. I should tell him that, since the days when the noble and learned Lord held the position that I am privileged to hold at the moment, responsibility for Customs and Excise prosecutors has been taken by the Attorney-General. A report published earlier this week emphasised the desirability of that and of taking it further. In relation to those prosecutors, the guidance that the Director of Public Prosecutions intends to give will be extremely influential in the drawing up of the guidance which will apply to them. The letter states:

    "I expect the other prosecuting authorities to do the same, possibly drawing on the CPS's approach".

However, I hope that I do not need to engage today in a debate about whether or not the Attorney-General who, although a government Minister, exercises an independent position, particularly when it comes to prosecuting—as the noble and learned Lord knows all too well—is the appropriate person to control the way that that prosecuting authority operates.

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