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Lord Goldsmith: My Lords, perhaps it is simplest if I briefly state what I want to say and at least it will stand, if necessary, for the subsequent grouping.

A terminating ruling as hitherto defined in the Bill could cover a range of different kinds of ruling of which a ruling of no case to answer is only one. The effect of amendments would be to remove from the Bill a prosecution right of appeal against any terminating ruling, and would be much wider than simply removing a ruling on a no case to answer submission. I assume for present purposes that that is not the intention of those moving the amendments, and that only rulings of no case to answer are intended, although that is not the effect of the amendments as they stand.

This kind of ruling was the subject of discussion in Committee. I want first to discuss the implications of the government amendments on this issue. As currently drafted, it is possible for the prosecution to appeal only where the judge makes a ruling which either stops the trial or is so fatal that the prosecution brings it to an end by offering no further evidence. The prosecutor cannot ask the Court of Appeal to review any other rulings which preceded that fatal final ruling. However, a ruling of no case to answer is a special case. It may well be preceded by a number of earlier rulings, each of them incrementally weakening the prosecution case. The effect of some or all of those earlier rulings might contribute significantly to the judge's eventual decision to make the ruling of no case to answer.

For that reason, where the prosecution appeals against a ruling of no case to answer, we consider that it should be able to nominate such earlier rulings as it specifies for the Court of Appeal to review at the same time all as part of the same appeal. It seems to us that it is only sensible and logical that where the prosecution appeals against a ruling of no case to answer there should be arrangements for the Court of Appeal to examine formally those earlier rulings which led up to the eventual ruling of no case. In that way the Court of Appeal will have a better grasp of the case and as a whole will be able to review more effectively the judge's terminating ruling.

We say that this right of appeal is desirable in principle. Removing it would remove one of the main planks of the Bill. In the well known case of Galbraith the Court of Appeal decided that there were two kinds of ruling of no case to answer. The first, known as the first limb, applies where there is no evidence of at least one essential element of the case against the defendant. The second limb applies where there is some prosecution evidence but that taken at its highest it is such that a jury could not properly convict.

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The first limb is concerned with a pure point of law on which the Government believe it would be entirely appropriate to enable the prosecution to seek a review of the trial judge's decision by the Court of Appeal. We agree with the Law Commission's conclusions on this point. There is no logical distinction between a terminating ruling of law made during the prosecution case and one made at its conclusion. The Law Commission stated:

    "If a case is to fail on legal argument, it is better for public confidence in the criminal justice system that it should be susceptible to the second opinion of a higher court, than it be unappealable".

Again, the Government fully concur with that view. The Law Commission drew an analogy with the present case-stated procedure in magistrates' courts, which already provides for a prosecution right of appeal on a point of law in summary cases. That is, therefore, the first limb.

I turn to the second limb, the second kind of ruling of no case to answer identified in Galbraith; namely, one where a properly directed jury could not convict on the evidence. In its explanation of this kind of ruling, the Court of Appeal also reminded us that matters of evidence are normally within the province of the jury. Where on any one possible view of the facts there was evidence that a jury might convict, the case should be left to the jury; that is, only where the evidence is self-contradictory, out of reason and all common sense is it to be considered so inherently weak and tenuous that such a ruling should be given. I refer to the remarks of Lord Justice Turner in Shipping. In other words, where the second limb of Galbraith is concerned, judges should not normally be making a ruling of no case to answer.

I indicated in Committee that I would expect it to be exceptional in practice for the Court of Appeal to overturn a judge's ruling of no case to answer falling within the second limb of Galbraith. But, given the regularity with which such rulings are made and the nature of such rulings, it is vital that the prosecution also has the right to test this kind of ruling. I gave an example in Committee, which I shall not repeat; it is recorded in Hansard.

We consider also that it would be impossible to draw a line between the first and second limb of Galbraith. The distinction between there being absolutely no evidence for an element of an offence and there being some very tenuous evidence for it is too slight to provide a basis for an important procedural distinction.

One of the themes which runs through the Bill is that the jury should be allowed to hear and to decide upon the evidence. If the judge second guesses a decision which is normally for a jury to make, it is only right that the prosecution should be able to test the judge's ruling by an appeal to the Court of Appeal. If the prosecutor wins the appeal, the evidence will then go on to be placed before the jury and the final decision on conviction or acquittal will be for the jury to make.

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For those reasons—I hope it has been helpful to deal with them at this stage—we consider that it is entirely proper that a ruling of no case to answer and, what is more, a ruling of no case to answer under both limbs, should fall within the ambit of the Bill. That is why in due course I shall resist the amendments which seek to remove that from the Bill. I beg to move.

Lord Kingsland: My Lords, first I thank the noble and learned Lord for giving such a full explanation of the government proposals. He was kind enough in his characteristically hospitable way to invite the noble Lord, Lord Thomas of Gresford, and me to talk to him about these matters the other day and we are extremely grateful to him for giving us that opportunity.

Perhaps I may explain to your Lordships why we have asked for Amendments Nos. 70A and 96 to be degrouped and treated separately. We have a hierarchy of concern about Part 8. Our main concern is based on the principle of equality of arms. What is sauce for the goose should be sauce for the gander. If the prosecution is to have a right of appeal against evidentiary decisions by the trial judge, why should not the defendant have a similar one?

That is our main theme, but we have two sub-themes. If the Government are to get their way on prosecution appeals only, we believe, first, that it should exclude appeals to decisions of no case to answer by the trial judge. In our view those decisions fall into a very special category.

Secondly, in order to contain the huge extra burden that will be imposed on the Court of Appeal Criminal Division there should be some constraint on the face of the Bill on the type of evidentiary decisions which are subject to appeal. As I shall explain to your Lordships, if I have the opportunity later today, those constraints would fall into two categories of evidentiary appeal: first, those which concerned errors of law and/or secondly, appeals against evidentiary decisions which were so unreasonable that no reasonable judge could possibly have come to the conclusion to which he came.

For the purposes of this group of amendments I shall address only the issue of principle, the issue of equality of arms. As noble Lords are well aware, the principle of equality of arms is laid down in the European Convention on Human Rights. There is some jurisprudence about it in the courts.

It seems to us that there is a real possibility that these provisions in the Bill breach that principle. The Government have already proclaimed that the Bill accords with the European Convention on Human Rights and that is an assumption that we all have to make in the course of considering the Bill. However, it is important at this juncture to signal that here is a possible area where the Government have made a misjudgment.

The matter was debated at some length in Committee. The noble and learned Lord the Attorney-General said in response to argument that the Opposition and, indeed, the noble Lord, Lord Thomas of Gresford, and the Liberal Democrat Front Bench,

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are wrong about their equality of arms proposition because a defendant will always have the right in appealing against his or her conviction, to argue, as part of his or her appeal, that the trial judge made an incorrect decision about the evidence.

That is of course perfectly true, but, as we pointed out, even if the Court of Appeal Criminal Division comes to the conclusion that the trial judge has made an incorrect evidential decision, it may go on to say that, nevertheless, the conviction is perfectly safe because a reasonable jury, considering the remaining admissible evidence, would have found the defendant guilty.

In our discussions the other day with the noble and learned Lord the Attorney-General, his response to that was to say, "Look at the Bill; look at the kind of decisions that prosecution appeals are aimed at. They are aimed at two types of decisions: first, terminating decisions, or decisions which would in effect be terminating; and, secondly—the other class of decisions which we have only just introduced at this stage—evidentiary decisions which would significantly weaken the prosecution case. Imagine the situation in which the defence had equivalent rights. Suppose in the Bill the defence"—as we would wish—"had the right to appeal against decisions that if the judge had made them correctly would have been terminating, or decisions which, if the judge made them correctly, would have significantly strengthened the defendant's case".

The noble and learned Lord went on to say, "Suppose these evidentiary decisions were appealed against at the Court of Appeal and the Court of Appeal held that the defendant's arguments were correct and that the trial judge was wrong. Would it be conceivable that the Court of Appeal would nevertheless have gone on to say that the conviction was safe? No, it would not", said the noble and learned Lord the Attorney-General, and he referred me specifically to two cases—the cases of R v. Sargent and R v. Smith. I went off and looked at Blackstone to refresh my memory, like a constable in the witness box, about the range of cases which had been decided on these matters over the past few years.

I have thought very carefully about the noble and learned Lord's argument. In the end I came to the conclusion that it was not convincing. My reason for deciding that relates to the very strong position taken by the Opposition about the principle of trial by jury—the right of a defendant, in a criminal trial, to be tried by his peers.

In the case of prosecution appeals under the Bill, the prosecution goes to the Court of Appeal, and whatever decision the Court of Appeal makes—unless it falls into the terminating category—the matter goes back to the criminal trial. The evidence continues to be heard within the context of the Court of Appeal's decision, and the jury takes the final decision. That will not be the case for the defendant. In the defendant's case, if his rights only remain to raise evidentiary points in the Court of Appeal after conviction, it will not be the jury that determines his fate, it will be the

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three Law Lords in the Court of Appeal who decide whether or not a reasonable jury would have come to a particular conclusion.

For those reasons we feel that it is perfectly proper, and indeed right, for us to continue to require either that the provisions for prosecution appeals are removed from the Bill or that the defendant is given similar rights to the prosecution.

4.15 p.m.

Lord Thomas of Gresford: My Lords, I support everything said by the noble Lord, Lord Kingsland, on the topic. I shall not repeat his arguments. Perhaps I may give an illustration of the kind of situation which we both have in mind. The matter is very fresh in my mind, having sat through a judgment that took one and a half hours this morning.

Let us suppose that under the Bill—the Bill having been put into effect—an application is made in the course of the defence for the defence statement to be put before the jury, and the judge rules against it. The trial proceeds and ultimately the defendant appeals on the basis that the judge's ruling was wrong and that the defence statement, had it been before the jury members, might very much have influenced their minds. It would, for example, have rebutted inferences that might be drawn under Section 34 of the 1994 Act, where a person does not answer when questioned in a police station; he does not give facts upon which he subsequently relies.

Let us further suppose that the case then goes to appeal—and the appeal that was heard today is more than three years since the date of the beginning of that trial—and the judges in the Court of Appeal were to decide that the defence statement should in all fairness have gone before the jury; but, they look at the facts and at the prosecution case and they conclude that, notwithstanding their ruling in the hypothetical situation I am putting forward, the conviction was safe anyway. That is simply not the kind of situation that arises if there is a prosecution appeal on a matter envisaged under these provisions. Under these provisions, if it were held that the judge was wrong to exclude some evidence the prosecution wanted to put before the jury, the trial goes on and the defendant remains at risk.

The noble Lord, Lord Kingsland, is absolutely right to point out that there is no equality of arms in these provisions. We should not be enacting legislation which contravenes a basic principle of the European convention. For those reasons, we on these Benches will support the noble Lord, Lord Kingsland.

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