|
Column Number: 1103
Standing Committee B
Tuesday 25 February 2003
(Afternoon)
[Mr. James Cran in the Chair]
Clause 49
Meaning of terminating ruling
Amendment proposed [this day]: No. 940, in
2.30 pm
Question again proposed, That the amendment be made.
The Solicitor-General (Ms Harriet Harmanty 40
): Two substantive points have been raised, the first by the hon. Member for Somerton and Frome (Mr. Heath) and the second by the hon. Member for Woking (Mr. Malins). The first concerns the fact that although the second sort of terminal ruling is not, on the face of it, terminal, it affects something so central to the prosecution case, or presents such obstacles, that the case cannot continue. Its effect is terminal because the prosecution are not able to go on with the case if the ruling is made.
The ruling could be about inadmissibility of evidence. The prosecution might be clear in their mind that they will have to throw in the towel if that evidence is inadmissible because it is central to their case—it is something that they decided was essential when they considered the evidence in the first place. Alternatively, they might want public interest immunity. If the judge rules that he or she will not grant public interest immunity, they have to decide whether they are prepared to have the person's identity disclosed. If they are not, because it will put the individual in danger, which could be why they made the PII application, they cannot go on with the case.
The Bill says that the prosecution must, when mounting an appeal against a ruling the effect of which is fatally weakening, nail their colours to the mast. If they appeal on the basis that although not terminal in itself, the ruling's effect would be terminal, they must stick with that. They cannot go to appeal and lose, but say that although it is a shame that they have lost the appeal they will stagger on anyway. They must make it clear that they regard the ruling as fatally weakening to their case. Should they come back into court having lost in the Court of Appeal, they will be acknowledging to the judge that they can offer no further evidence and the case is finished. I hope that that answers the hon. Member for Somerton and Frome: it is subjective, in that it is from the prosecution's point of view. That is not necessarily clear when one reads the Bill.
The point made by the hon. Member for Woking was about stays of proceedings on the basis of abuse of
Column Number: 1104
process. He said that such stays are very important. He is right. If a case is stayed, it effectively ends. Technically, it can be brought back—the stay can be unstayed—but effectively it has ended. That is an important tool for the defence and an important check on the prosecution. It is right that it should be there, but the question is whether we should exclude it from those rulings that can be appealed. I ask myself what would be the argument for excluding rulings on stays, which effectively end cases, when we have accepted the principle that other rulings that effectively end cases are appealable. The onus is on those who want to give the prosecution an extra power or opportunity to show why it is needed.
The Government have gone through the process with the Crown Prosecution Service and the Serious Fraud Office, and as a result I have given hon. Members some examples of rulings that are fatally weakening or terminal and of others that are stays. I give the health warning that all those cases are in advance of the law being changed as we hope it will be under the Bill. All the defendants in those cases were therefore acquitted. Some of those cases were subject to the Attorney-General's reference to the Court of Appeal on points of law, so we can say with confidence that the judge at first instance got it wrong. However, it was not thought possible or necessary to refer other cases to the Court of Appeal.
I ask the hon. Member for Woking to look at case 2, a famous if not notorious case that he may remember. A stay was put on that case, which was fatal to it. It would have been appealable if the law had been changed as we hope it to be. Several defendants were acquitted on charges of conspiracy to defraud on a large scale. The prosecution then sought to prosecute one of the defendants and other defendants for a further conspiracy to defraud which had been severed from the original indictment in order to keep the length and complexity of the first trial within manageable limits.
Everyone knew the scope of the criminality involved, but to try not to fry the jury's brains too much, it was separated into two cases. The first trial went ahead and the defendants were acquitted. The prosecution decided to go ahead with the second trial—the hon. Gentleman will know immediately which trial I am talking about—but the trial judge ruled that the second trial should be stayed as an abuse of process. The factors that he took into account were the similarity between the new counts that would form the basis of the second trial and those already tried, on which the defendants had been acquitted; the publicity to which the defendants had been subjected; the distress that they and their families had already suffered; and the fact that the first trial had ended in the acquittal of all the defendants.
The point is that that second group of charges was never put to a jury. That indictment was never tried, because the judge's ruling, which was then unchallengeable, finished off the case. The defendants were therefore able to walk away. It is important that the defence should have the ability to mount arguments about abuse of process, but we cannot argue that there is something distinctive about
Column Number: 1105
a stay that justifies exempting it that does not apply also to other terminal rulings. For those reasons, we would not want to accept the spirit of the hon. Gentleman's argument.
Mr. David Heath (Somerton and Frome): I thank the Solicitor-General for her explanation. It is now much clearer, to me as a layman, exactly what is intended. I do not think that one could reasonably have interpreted from the words of the Bill exactly what was intended, but she has now made it plain. May I also thank her for her very helpful chart? I share her hope that it becomes a standard work of guidance in that area and possibly bears her name in future because it will be a helpful guide for barristers who seek to follow the procedure.
Amendment agreed to.
The Solicitor-General: I beg to move amendment No. 941, in
clause 49, page 31, line 43, leave out 'against a defendant'.
The Chairman: With this it will be convenient to discuss Government amendments Nos. 942 to 948.
Amendment No. 988, in
clause 52, page 33, line 26, leave out paragraph (a).
Government amendments Nos. 949, 952 and 956.
The Solicitor-General: This group of rather technical amendments picks up on the fact that trials often involve multiple offences and multiple defendants. The amendments are an attempt to avoid unintended consequences relating to other offences that are not the subject of an appeal. The prosecution should be clear what they are appealing about. If there are other defendants, they should be left on one side, and if there are other offences they can continue.
To take multiple offences first, a judge's ruling may well affect several offences simultaneously. Where that is the case, the prosecutor may want to appeal against the ruling in relation to only one or other of the offences affected. The ruling might affect many offences of which the prosecution object to only one. We are therefore changing clauses 51 and 52 by means of amendments Nos. 945 and 948 to require the prosecution to specify which of the offences affected by the ruling they wish to appeal against. That is right because the Court of Appeal will be absolutely clear on the offence with which the prosecution is taking issue and the defence will be absolutely clear about what they face.
In line with those changes, we are also amending clause 54 so that proceedings for any offence affected by a ruling can be allowed to continue by the trial judge, provided that the ruling is not subject to an appeal in relation to that particular offence. A prosecution appeal should not stop the trial judge proceeding fairly and should not have a wider effect than is strictly necessary.
As it stands, clause 54 prevents proceedings from continuing if they are affected by a ruling. An offence may be affected by a ruling but if there is no appeal in relation to the ruling as it affects that particular
Column Number: 1106
offence there is no reason why the proceedings for the offence should not continue. As amended, clause 54 will enable proceedings to continue in those circumstances.
Amendments Nos. 943, 944, 947 and 952 are consequential on the main amendments to clauses 51, 52 and 54, as are the first two limbs of amendment No. 956, which provides general rules for the whole of part 9.
Turning to multiple defendants, more than one defendant may take part in the same trial and a ruling may be made which affects an offence with which more than one defendant has been charged. A similar principle underlies the amendments. The judge may make a ruling that affects an offence with which several defendants have been charged, but the prosecutor may want to appeal against the ruling only as it affects one or other of those defendants.
The third limb of amendment No. 956 requires the court to treat an offence with which more than one defendant has been charged as a separate offence in relation to each defendant. That means that if more than one defendant has been charged with the same offence, the prosecutor in appealing must specify whether the appeal is directed against the ruling as it affects all the co-defendants, and if not, which particular one or other of them it affects. The amendment rightly requires more specificity than is in the Bill. It has the virtue that under clause 54, as amended, proceedings for an offence will be able to continue against one co-defendant when the trial of another co-defendant is put on hold by the lodging of a prosecutor's appeal against a ruling on the same offence. We want as little as possible to stop while interlocutory appeals go on. There can be a twin track: some of the defendants can continue to be tried, while one case is temporarily in abeyance because it is at the Court of Appeal.
2.45 pm
Finally, amendments Nos. 941 and 942 refine clause 49 to make it clear that the point in clause 49(2) applies in cases in which any number of defendants are charged with the same offence, and where the outcome of the prosecutor's appeal may be the continuation of the same proceedings, rather than fresh proceedings. The motive underlying those amendments is the avoidance of unnecessary delay. It makes sense to allow proceedings not affected by a prosecutor's appeal to continue, where possible, provided that the trial judge considers it appropriate. The amendments allow the trial judge considerable flexibility and will contribute to the goal of avoiding unnecessary delays.
|
