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Viscount Bledisloe: My Lords, can the noble Lord, Lord Kingsland, enlighten me? I see the force of the case he has described, but is that the only case in which one can make a submission of no case to answer? Why cannot the defence say that there is no case to answer because an element of the offence, properly understood, requires mens rea, let us say—a wicked mind—and the judge to say, "Yes, it does require that and there is no evidence of it, therefore I throw it out and there is no case to answer"?
If the prosecution wants to appeal and say, "No, that is not a proper interpretation of the statute", that is not an element, but is it not still a submission of no case to answer? Is the example given by the noble Lord that the judge is throwing it out because the case is evidentially too weak the only meaning of the phrase "no case to answer"?
Lord Kingsland: My Lords, I am grateful to the noble Viscount. As I understand it, in assessing a submission of no case to answer by the prosecution, the judge will be taking into account both the mens rea and the actus reus of the case to the extent required. He
decides whether or not to allow the case to go on and hear defence evidence. In my submission, there is no difference between mens rea and actus reus in that respect.
Viscount Bledisloe: My Lords, before the noble Lord sits down, I am saying that the difference between the prosecution and the defence is a question of whether, as a statutory element of the case, mens rea is necessary. The judge will say, "Yes, it is and there is therefore no case", and the prosecution wants to appeal because it is not there. That seems to me to be capable of being a submission of no case to answer.
Lord Kingsland: My Lords, I have just been told by my superior, my noble friend Lady Anelay, that I am not allowed to jump up and down at the Report stage. I am happy to comment on that when I make my concluding remarks.
Lord Goldsmith: My Lords, I am happy to say that the noble Viscount is absolutely right, as was the noble and learned Lord, Lord Ackner, if I may respectfully say so. What is bizarre about the amendment is what is proposed because it is not what the noble Lord, Lord Kingsland, has described. By virtue of the Division that has just taken place, Clause 47, which I was trying to take out of the Bill, remains in the Bill. That defines "terminating ruling" as,
- "a ruling by a judge of the Crown Court . . . which, if given effect to, will, without any further action by the prosecution, result in the termination or stay of proceedings for the offence, or one or more of the offences, including the indictment".
The proposal made by the noble Lord, Lord Kingsland, in Amendment No. 70A is to insert:
- "Nothing in this Part shall apply to terminating rulings".
I had understood that the noble Lord recognised the technical deficiencies of his amendment and therefore would not be moving it, but I am plainly wrong. However, the amendment will not achieve what he is saying, for the reasons I gave previously and which have been eloquently put by the noble and learned Lord, Lord Ackner, and the noble Viscount, Lord Bledisloe, as being in any event bad.
Lord Kingsland: My Lords, before turning to my concluding remark, perhaps I may make an observation about the comments made by the noble Viscount, Lord Bledisloe, and the noble and learned Lord the Attorney-General. I now believe that I better understand the point made by the noble Viscount. Of course, if there is an argument between the defence and the prosecution about whether the statute which is relevant to the trial does or does not require mens rea, that is clearly not a matter which falls within the
decision of no case to answer. It will be necessary for the trial judge to consider that point before he goes on to consider whether there is a case to answer.I agree with the noble Viscount that a consideration of whether mens rea is or is not part of the case is not a matter which falls within the terms of no case to answer and in any event is not intended to fall within the terms of my amendment.
Lord Goldsmith: My Lords, will the noble Lord say whether it falls within the terms of the definition of "terminating ruling" in Clause 47?
Lord Kingsland: My Lords, my amendment states:
- "Nothing in this Part shall apply to terminating rulings based on the submission of no case to answer".
Lord Donaldson of Lymington: My Lords, as one who has not popped up and down, perhaps I may be allowed to seek enlightenment. As I understand it, Clause 47 not having been taken out of the Bill, we have a definition of "terminating ruling". Amendment No. 70A puts an exception on the definition of "terminating ruling". The wording of the exception is such that if in any case a judge can properly say, "I rule that there is no case to answer", whether that has an evidential or legal base does not matter. If the amendment is passed, the prosecution will be unable to appeal—and for my part that is complete nonsense.
Lord Lloyd of Berwick: My Lords, for my part, it makes excellent sense.
Lord Kingsland: My Lords, what is the noble and learned Lord the Attorney-General to make of the last two interventions? I know which one I prefer.
I am grateful to all noble Lords who have participated in the debate. I shall reflect on what they and the noble and learned Lord the Attorney-General have said and in the meantime beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 48 [Prosecution right of appeal against certain rulings]:
Lord Goldsmith had given notice of his intention to move Amendment No. 71:
- Page 33, line 13, leave out subsections (1) to (4) and insert—
The noble and learned Lord said: My Lords, I have spoken to the remaining amendments in the group but I am not entirely sure what the noble Lord's attitude is to them.
Lord Kingsland: My Lords, the Government have provided a large grouping in order to debate the central issue which they have promoted in Part 8 of the Bill. Your Lordships' House has pronounced on that debate in a vote and the vote went against the Government. I should have thought that the conclusions which the noble and learned Lord the Attorney-General ought to draw from that are perfectly obvious.
Lord Goldsmith: My Lords, I think that we are in something of a muddle because we were attempting to rewrite this. I understand what the noble Lord is saying; he treats the effect of the vote as having destroyed prosecution rights of appeal. I will not move the amendment. I will consider the position and the amendments will be back before your Lordships' House at some stage.
[Amendments Nos. 72 to 75 not moved.]
Clause 49 [Appeals against terminating rulings]:
[Amendments Nos. 76 to 89 not moved.]
[Amendment No. 90 had been retabled as Amendment No. 91A.]
Clause 50 [Appeals against certain other rulings]:
[Amendments Nos. 91 and 91A not moved.]
Clause 51 [Expedited and non-expedited appeals]:
[Amendments Nos. 92 and 93 not moved.]
Clause 52 [Continuation of proceedings for offences not affected by ruling]:
[Amendments Nos. 94 and 95 not moved.]
Clause 53 [Determination of appeal by Court of Appeal]:
[Amendments Nos. 96 to 110 not moved.]
Lord Goldsmith had given notice of his intention to move Amendment No. 111:
The noble and learned Lord said: My Lords, Amendment No. 111 would have added to the Bill a new prosecution right of appeal against an evidentiary ruling or series of evidentiary rulings. The second government amendment, Amendment No. 143B, would have added a new schedule to the Bill defining the offences in relation to which such an appeal may be made.
We were previously debating a prosecution right of appeal against a ruling which brings the case to an end. The proposed appeal is different and has attached to it different safeguards and different conditions. I say that at this stage in order to give the noble Lord an opportunity to intervene—this issue not having been debated—if he takes the view that the matter has been resolved by the previous vote. I take the view that it has not, but if the noble Lord disagrees it would be helpful to know.
(1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.
(2) But the prosecution is to have no right of appeal under this Part in respect of—
(a) a ruling that a jury be discharged, or
(b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment."
After Clause 53, insert the following new clause—
"APPEALS IN RESPECT OF EVIDENTIARY RULINGS
(1) The prosecution may, in accordance with this section and section (Condition that evidentiary ruling significantly weakens prosecution case), appeal in respect of—
(a) a single qualifying evidentiary ruling, or
(b) two or more qualifying evidentiary rulings.
(2) A "qualifying evidentiary ruling" is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.
(3) The prosecution may not appeal in respect of a single qualifying evidentiary ruling unless the ruling relates to one or more qualifying offences (whether or not it relates to any other offence).
(4) The prosecution may not appeal in respect of two or more qualifying evidentiary rulings unless each ruling relates to one or more qualifying offences (whether or not it relates to any other offence).
(5) If the prosecution intends to appeal under this section, it must before the opening of the case for the defence inform the court—
(a) of its intention to do so, and
(b) of the ruling or rulings to which the appeal relates.
(6) In respect of the ruling, or each ruling, to which the appeal relates—
(a) the qualifying offence, or at least one of the qualifying offences, to which the ruling relates must be the subject of the appeal, and
(b) any other offence to which the ruling relates may, but need not, be the subject of the appeal.
(7) The prosecution must, at the same time that it informs the court in accordance with subsection (5), inform the court of the offence or offences which are the subject of the appeal.
(8) For the purposes of this section, the case for the defence opens when, after the conclusion of the prosecution evidence, the earliest of the following events occurs—
(a) evidence begins to be adduced by or on behalf of a defendant,
(b) it is indicated to the court that no evidence will be adduced by or on behalf of a defendant,
(c) a defendant's case is opened, as permitted by section 2 of the Criminal Procedure Act 1865 (c. 18).
(9) In this section—
"evidentiary ruling" means a ruling which relates to the admissibility or exclusion of any prosecution evidence,
"qualifying offence" means an offence described in Part 1 of Schedule (Qualifying offences for the purposes of section (Appeals in respect of evidentiary rulings)).
(10) The Secretary of State may by order amend that Part by doing any one or more of the following—
(a) adding a description of offence,
(b) removing a description of offence for the time being included,
48 (c) modifying a description of offence for the time being included.
(11) Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 49."
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