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Lord Goldsmith: My Lords, the noble Lord has not moved his amendment yet. I should certainly like to know what the House thinks about my amendment, if the Question could be put.

4.33 p.m.

On Question, Whether the said amendment (No. 70) shall be agreed to?

Their Lordships divided: Contents, 104; Not-Contents, 111.

Division No. 2

CONTENTS
Ackner, L.
Allenby of Megiddo, V.
Amos, B. (Lord President)
Ampthill, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Bledisloe, V.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Colville of Culross, V.
Condon, L.
Corbett of Castle Vale, L.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Donaldson of Lymington, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Erroll, E.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Filkin, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jordan, L.
Judd, L.
Lane, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Marsh, L.
Massey of Darwen, B.
Mitchell, L.
Monson, L.
Morris of Manchester, L.
Pitkeathley, B.
Plant of Highfield, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Roll of Ipsden, L.
Rooker, L.
Sainsbury of Turville, L.
Sandwich, E.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Gilmorehill, B.
Stallard, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Turnberg, L.
Turner of Camden, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.

NOT-CONTENTS
Addington, L.
Anelay of St Johns, B.
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Biffen, L.
Blatch, B.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Clement-Jones, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Crathorne, L.
Dahrendorf, L.
Dholakia, L. [Teller]
Dixon-Smith, L.
Elton, L.
Ezra, L.
Falkland, V.
Ferrers, E.
Finlay of Llandaff, B.
Fowler, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harris of Peckham, L.
Harris of Richmond, B.
Hayhoe, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Holme of Cheltenham, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Jacobs, L.
Kennedy of The Shaws, B.
King of Bridgwater, L.
Kingsland, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Ludford, B.
Luke, L.
Macfarlane of Bearsden, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monro of Langholm, L.
Montrose, D.
Moynihan, L.
Newby, L.
Noakes, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Park of Monmouth, B.
Phillips of Sudbury, L.
Plumb, L.
Plummer of St. Marylebone, L.
Redesdale, L.
Rennard, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Scott of Needham Market, B.
Seccombe, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Steel of Aikwood, L.
Stern, B.
Taverne, L.
Taylor of Warwick, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Trefgarne, L.
Trumpington, B.
Waddington, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wigoder, L.
Wilcox, B.
Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.

30 Oct 2003 : Column 454

4.45 p.m.

Lord Kingsland moved, as an amendment to Amendment No. 70, Amendment No. 70A:

Before Clause 48, insert the following new clause—

"APPLICATION OF PART 8
Nothing in this Part shall apply to terminating rulings based on the submission of no case to answer."

The noble Lord said: My Lords, I am not sure what the consequences of the last vote are for this amendment, but I shall speak to it. The noble and learned Lord the Attorney-General has already expressed some views about what I am about to say. He will no doubt add further ones when I conclude. I shall be brief.

Amendment No. 70A would exclude from the definition of "terminating ruling" in the Bill decisions by the trial judge of no case to answer. In our view, those decisions are of a particular and specific character because they involve by the trial judge a view uniquely and solely of the facts of the case and of the evidential support for those facts. When a trial judge considers a proposal of no case to answer by prosecuting counsel, he is looking at both the evidence given by the prosecution witnesses and their demeanour while giving it. If there is some evidence under the Galbraith rule, he will seek to determine whether it is so slender or far fetched as to be wholly valueless.

It is almost inconceivable that the Court of Appeal Criminal Division would be in a position to second-guess the trial judge about such an exercise of discretion. In those circumstances, the decisions by the trial judge of no case to answer should be excluded from the Bill. I beg to move.

Lord Thomas of Gresford: My Lords, I spoke on this principle in Committee, and support the view expressed by the noble Lord, Lord Kingsland, on Report. One of the matters that concerns the Government is the long trial—the ruling of no case to answer at the end of six or nine months of a long trial. It then appears that a lot of money has been wasted. That sort of thing makes newspaper headlines and leads to criticisms of the system. In precisely that sort of case, it would be virtually impossible for the Court of Appeal to second-guess the view of the trial judge. That judge has sat through all the

30 Oct 2003 : Column 455

proceedings, heard the evidence, is familiar with the schedules and exhibits and the circumstances of the case, and the prosecution have failed to satisfy him that there is sufficient evidence to go to a jury. How a Court of Appeal could then sit down for weeks and weeks, read through the same material and transcripts of the evidence and come to a different conclusion baffles me.

If the main problem—the ruling at the end of a long prosecution case—cannot be resolved in that way, it is wrong in principle to extend it to the shorter case when perhaps the Court of Appeal could have a better grasp of the issues.

Lord Ackner: My Lords, would the noble Lord assist me? I recollect a case in Hong Kong when it was perfectly clear that after many, many days the judge concluded that he just could not cope. Therefore, he said that there was no case to answer. As a result, a case that was supported by strong and compelling evidence by Lord Benson, which was on the question of fraud and very complex in its detail, fell. He was absolutely outraged and astonished. Is there to be no remedy for such a case?

Lord Thomas of Gresford: My Lords, I recall the case very well. The prosecution case lasted for 18 months. The court sat every day from eight o'clock in the morning until one o'clock in the afternoon when the learned judge adjourned for lunch. At the end of the 18-month period, he was not in a position to give a ruling that the prosecution had established a case. What was wrong in the specific instance to which the noble and learned Lord referred was that the prosecution tried to take a huge bite out of a very large case and found that it could not sustain the basic job of a prosecution; that is, to explain the case in simple terms. That was a good example of a fraud trial running away with itself and it is the kind of thing of which I am sure the noble and learned Lord the Attorney-General would not approve.

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