I beg to move amendment No. 419, in

clause 109, page 64, line 41, leave out

'before a judge and jury'.

With this it will be convenient to discuss the following amendments:

No. 423, in

clause 109, page 65, line 4, leave out 'jury to acquit' and insert 'acquittal of'.

No. 424, in

clause 109, page 65, line 5, leave out 'discharge the jury' and insert 'so order'.

No. 425, in

clause 109, page 65, line 7, leave out 'a jury is directed'.

No. 426, in

clause 109, page 65, line 7, leave out 'to acquit a defendant' and insert 'a defendant is acquitted'.

It is worth spending some time on this clause. The explanatory notes tell us:

''Subsection (1) imposes a duty on the court to stop a case and either direct the jury to acquit the defendant, or discharge the jury, if the case against him or her is based wholly or partly on an out of court statement which is so unconvincing that, considering its importance to the case, a conviction would be unsafe.''

I need to be convinced by the Minister that the clause is necessary, given the court's inherent power at any stage in the proceedings to form a view about the unconvincing nature of the prosecution case and to act on that view. Amendment No. 419 would ensure that the clause applied not only to judge and jury trials but to trials before magistrates or a district judge—formerly a metropolitan or provincial stipendiary magistrate—and also, in future, to trials before a judge alone in the upper courts, as we discussed earlier.

Although the explanatory notes say that the issue arises only in relation to jury trials

''because in other cases, the finders of fact would be bound to dismiss a case in these circumstances'',

that may be wrong. It is important to ascertain and understand the role of a judge in a case when the judge is with a jury and the role of, say, a district judge when trying the case alone. A district judge is a judge not only of the facts but of the law. In a judge and jury case, the judge retains the role of being judge of the law, and in that respect takes on all legal arguments.

In a case in the magistrates court before a district judge where the evidence is so unconvincing as to be worthless, for one of the reasons set out in the clause, one of two things happens. The defence advocate makes an application to the district judge that, as a matter of law, the case should not proceed, and that judge, wearing his or her legal hat, decides the issue of law—and the submission on that basis would be a submission as to the law; ditto in the Crown court

where a defence advocate makes the submission to the judge. The judge is in exactly the same position as the district judge in the magistrates court: he or she is the judge as to the law and hears submissions. There is no distinction between the judge's role in the lower court and in the higher court. Therefore, I cannot understand the explanation that the provision does not need to contain a reference to the district judge or the magistrate.

Amendments Nos. 423 to 426 are consequential on the point raised by amendment No. 419. It is possibly absurd, and certainly curious, to find the provision that the court must direct a jury to acquit

''or, if it considers that there ought to be a retrial, discharge the jury.''

How could a judge discharge a jury in such circumstances? If a judge discharges a jury, which is normally done when the jury is deadlocked and cannot reach a verdict, or sometimes if there has been jury contamination, the Crown can apply for a retrial. We all know some famous examples of that. When the judge has reached, following submissions, the conclusion that the evidence before the court is so unconvincing that, in simple terms, the case must not proceed, how can that judge have an option to say, ''This is goodbye to this case, because it is so feeble,'' or presumably to think to himself or herself, ''This is goodbye to this case because it is so feeble, but the Crown can have another go if it wants to''? That seems to me odd. I hope that the Minister will be able to help me on that point.

Finally, I do not understand any references to

''the close of the case''.

A later amendment may deal with this point, but it seems to me that, at both district judge and Crown court level, as an inherent jurisdiction, either upon application or of his or her own motion, the judge can form a view about a case at any stage. One can think of many examples where a judge might stop a case before the closure of the Crown case. For example, normally the last witness for the Crown is the officer in the case who has taken an interview, which might form a series of denials of the offence. Therefore, nothing further can come to add to the Crown's case, so the judge must, and does, have that option at any stage.

I shall do my best to help the hon. Gentleman with his concerns. The clause imposes a duty on the court to stop a case and either direct the jury to acquit the defendant or discharge the jury if the case against him or her is based wholly or partly on an out of court statement that is so unconvincing that, considering its importance to the case, a conviction would be unsafe. That is clearly an important safeguard for the defendant against unreliable hearsay forming the basis of an unsafe conviction.

There are existing powers for courts to direct an acquittal at any stage from the close of the prosecution case to the end of the trial.

I assume that the clause has no intention of interfering with that power.

I was about to clarify that point and to address some of the issues raised by the hon. Member for Woking.

That discretion should be exercised rarely, but it is not limited to particular sets of circumstances. The duty in the clause builds on the existing powers. The Law Commission considered that the exercise of such a power should be clarified where unconvincing hearsay evidence has been admitted. What is the difference between the clause and the existing powers? This clause, like clause 91, builds on the court's existing powers to direct an acquittal where there is no case to answer, but those powers are discretionary. It ensures that, where unconvincing hearsay evidence has been adduced and admitted, and the safety of the conviction has been affected, the court must stop the trial. It does not prejudice existing powers; rather, it clarifies and tightens them up in relation to unconvincing hearsay evidence.

The amendments would extend the duty beyond cases involving a judge and jury to those in a magistrates court. I am wholly sympathetic to the hon. Gentleman's reasons for tabling the amendments, and we do not disagree with the principle behind them, but they are not necessary. The issues that the clause addresses do not arise in the same way in cases heard by magistrates, because—

Why not?

If the hon. Gentleman will be patient for 10 seconds longer, I will explain why not. The clause is intended to remove the danger of a jury placing too much weight on unconvincing hearsay evidence. If the magistrate came to the view that a conviction would be unsafe because the hearsay evidence was unconvincing, they would be bound to dismiss the case. In such circumstances, there is no danger of unfairness to the defendant.

The hon. Gentleman specifically mentioned a retrial, and it may help him if I repeat that the clause does not require the whole case to be based on an out of court statement. Rather, it makes provision for situations in which only part of the case is based on a hearsay statement and where other evidence may be sufficiently compelling that it would allow the prosecution case to be properly mounted. In such instances, it would not be proper to continue with the existing jury, because it would already have heard the unconvincing out of court statement, and the judge would conclude that that any conviction based on it would be unsafe. However, in exceptional cases, it may be proper to order a retrial. The compelling evidence could then be heard and considered without the defendant's right to a fair trial being endangered.

How could the existence of other, compelling evidence be consistent with subsection (1)(b), which refers to unconvincing hearsay evidence, saying:

''considering its importance to the case against the defendant, his conviction of the offence''—

I assume that that means his conviction for the offence—

''would be unsafe''?

I can only repeat what I have just said. The hon. Gentleman must look at the whole case, because only part of the evidence may be based on such a hearsay statement. Clearly, some hearsay evidence may be so unconvincing that it would be unsafe to proceed with the trial, but that does not necessarily mean that it would be in the interests of justice to throw out other, compelling evidence, if it existed. In the circumstances that I have described, it should be right to order a retrial so that that compelling evidence can be heard without the taint of the unsound hearsay evidence.

It is either one thing or the other, and the Minister must deal with the issue. If someone's conviction is unsafe, it is unsafe—that is the beginning and the end of the story. I do not understand how one can say that we should follow the clause, and that any conviction under such circumstances would be unsafe, but then permit a further trial. The conviction is either unsafe or it is not.

I fear that we will just have to agree to disagree. I ask the hon. Gentleman again to consider cases that are based only partly on unsound hearsay evidence. This whole chapter deals with the particular issues that everyone accepts surround the very notion of hearsay evidence. If we apply the tests that relate to hearsay evidence in cases where only part of the case depends on it, those tests that apply to hearsay evidence but not to other evidence—

Will the Minister give way?

I will, after I have made a last attempt to convince the hon. Gentleman.

In those circumstances, would it be in the interests of justice that the other compelling evidence should be precluded from being adduced in appropriate circumstances in a retrial? I fear that I may not have convinced the hon. Gentleman, but I am happy now to give way to my hon. Friend.

Is the Minister envisaging circumstances in which a plethora of evidence could be adduced, some of which was tainted or prejudicial hearsay evidence that should not have been adduced, but that, if that evidence was removed and the other evidence put before a fresh jury, it might be compelling?

That is exactly the case that I am trying to make. I am grateful to my hon. Friend for restating it. It may have persuaded the hon. Member for Woking—I fear not—but I hope that he has heard enough to withdraw the amendment.

I have heard enough, but not enough to feel content. It will result in extra cost, time and trouble. We should get real, and picture ourselves in the Kingston Crown court, where unconvincing hearsay evidence has been given.

An example might be of a complainant having gone into the witness box whose previous inconsistent statement had been admitted in evidence, in which she had categorically stated that no offence had been committed against her.

That is a very good example. Let us link it with what might be called unconvincing evidence that is taken with other evidence that might be convincing—I think that that is what the Minister is talking about.

Compelling.

Very well, compelling. We are not able to convict someone before we have heard the evidence; but if it is powerful evidence, it should be put before the jury. What on earth is wrong with the judge doing what he would normally do, and telling the jury utterly to disregard A, B and C but to concentrate on D and E? Juries are often told that they should ignore certain matters that have been put before the court. If judges had to discharge the jury or order a retrial every time they thought that A, B and C were outrageous in terms of their evidential value but that D, E and F were terrific, we would be having retrials all the time. What is wrong with that specific power? Why cannot the jury be trusted to deal with a genuine direction about what is evidentially important and what is not?

In any event, subsection (1)(b) is not happily phrased in its current form. It states that if

''the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant''—

that is the significance of the provision—

''his conviction would be unsafe''.

If we permit ourselves to use those words, they must mean what they say. The Minister is looking to his officials—I am sure that they will write out some sort of response—but if the subsection states that a conviction would be unsafe, it will mean only mean what it says. It cannot mean anything else.

It seems to me that it would meet the hon. Gentleman's objection to substitute the phrase

''considering its importance to the case against the defendant''

with ''this evidence would be inappropriate to include in the case''. It is the evidence that is important, not the case. If we could go back to saying that the evidence is unreliable and therefore inadmissible, it would leave the potential for other evidence to make the case provable. That may be what the hon. Member for Wellingborough was arguing for.

Yes. I think I have made the point. The Minister clearly understands our concerns, and I ask him to consider them. There could be problems, and if the Minister could come up with something on Report to satisfy the hon. Member for Southwark, North and Bermondsey (Simon Hughes), my hon. Friends and myself, that would be progress. I remain unconvinced by the Minister's argument for not including the district judge and the magistrates; as far as I can see, they are fact finders.

We have highlighted our concerns and we are troubled that the clause is limited to ''judge and jury'' instead of including the district judge and magistrates. I hope that the Minister will consider them carefully. Given that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 420, in

clause 109, page 64, line 42, leave out 'close' and insert 'opening'.

With this it will be convenient to discuss amendment No. 427, in

clause 109, page 65, line 20, leave out 'close' and insert 'opening'.

There is no need for the word ''close'': it should read ''at any time after the opening of the case.'' The jury already have the power to acquit at any stage, and I gave a graphic example of when that power was used before the close of a prosecution case. We do not need the words in subsection (3)(b)

''after the close of the case for the prosecution''

It would read perfectly well as ''If on a defendant's trial before a judge for an offence the court is satisfied at any time that—''. That would give the court the wider discretion that it has now. It would be unfortunate if the court's discretion to do that were restricted until after the close of the case.

Quite simply, amendment No. 420 is neither necessary nor desirable. It is important that the prosecution have the opportunity to present their case in full before the court and before we ask the judge to decide whether to stop a trial because a conviction arising from it might be unsafe. That is in line with the court's current ability to direct that there is no case to answer at any point after the close of the prosecution case. It is only after the prosecution have presented their full case that the court can consider whether, judging by the evidence adduced by the prosecution, the requirements of the clause have been fulfilled. If the court were satisfied at that point, or at any subsequent point in the trial, that, because of the unconvincing nature of the hearsay evidence and considering the importance of the evidence to the case, a conviction would be unsafe, the court must stop the case.

To make such a direction before the end of the prosecution case would clearly be inappropriate. That would be the effect of the amendments. For example, evidence may be introduced that makes the fact that the hearsay evidence is unconvincing less significant for the prosecution case; evidence may also be introduced that adds weight to the hearsay evidence. It would be particularly difficult for the court to determine whether a direction to a jury would deal adequately with any issues raised by the admission of the article or statement before hearing all the evidence against the defendant. One must judge the matter in context, and we cannot see the context until the prosecution have completed their case.

It is at least clear that the clause envisages the possibility that a trial may take place in future entirely on the basis of read statements, either because those statements have been agreed to some extent, or alternatively because they are admitted under the hearsay rule. No live witness will enter the witness box. The chances must be that the judge will have read the statements before he enters the court. Leaving aside questions of principle, I find it difficult to understand the Minister's objection to the amendment as it might save a great deal of time and money. If the judge were to say to the prosecuting counsel, ''The key statement is totally unconvincing; I

certainly could not convict on that. You have nothing else to offer in this case, Mr. Grieve, and nothing could possibly change my mind about that,'' would it not be a more proper use of time for that judge to be able to stop the case at that early stage, rather than waiting another two days?

I am always interested in what the hon. Gentleman says. However, we are still not minded to accept the amendments. The clause strikes the right balance between allowing the prosecution to present their full case and protecting the defendant from the effect of unconvincing hearsay evidence. I hope that the hon. Gentlemen will consider our position, as we consider everything that they say, and that they will not insist on the amendment.

This is simply not satisfactory. I do not know who is advising the Minister and I do not know when he or any of his advisers last visited a court to see what actually happens. It would be helpful to know—no doubt there is all the time in the world—whether any of them has spent any time watching court proceedings in the past month, and if so, whether the Minister will answer this question: does the judge have the power now to stop a case before the prosecution case has finished? The answer is yes, of course he or she does. To say that the judge should have to wait until the close of prosecution, even though he or she is completely aware that there is nothing more of use to come from the prosecution is not only a great fetter on the judge but an absurdity in terms of wasted money and time.

On a point of information, Mr. Cran. Given that I would like to respond—probably at greater length than an intervention justifies—can I intervene now or do I have an opportunity to respond in a moment?

I am happy to make it clear that if the Minister wishes to make another speech, he has only to catch my eye.

Or, indeed, as I sense a little movement, if the Minister would like to indicate in a brief intervention that he would like to think about the matter, that might shorten the proceedings.

Let us get on.

Okay, the Minister is not going to intervene. Does he deny that the court has the power to do as I said? He cannot, because it has and it does, regularly. My hon. Friend the Member for Beaconsfield made the point that the judge will ask the barrister whether he has made his best point or whether there is more to come. He knows that there is nothing else to come apart from a couple of tidying up statements from the Crown and the interview, which the judge has already read, in which the defendant says that he is not guilty. The judge is able to say to the Crown barrister that he does not want to spend another day and a half listening to the case if there is no more to come, therefore he exercises his powers to instruct the jury—or to direct himself as district judge—to say goodbye to the case. The Minister does not accept what happens in the world. The clause is very disappointing because it would upset existing practice.

The same happens in the defence case. There comes a time when the judge says something like, ''Mr. Hughes, is that your best point? Have you anything else? Then I need not trouble you any further.'' We have to allow the judge discretion to assess whether there is any prospect of the case making further progress. He can start to do that after the first piece of evidence has been given.

Well, there it is. The Minister wants to respond, so I reserve my position on pressing the matter to a vote, depending on what he says.

I am grateful to the hon. Gentleman for this fascinating insight into real life in Kingston and other courts. It has been helpful and instructive, but it misses the point. The point about the clause is not to have a general disquisition of court practice, interesting as it has been, but to discuss hearsay evidence. I am grateful to the hon. Gentleman for having been so efficient as to say that, on further consideration, he might withdraw the amendment. I will always consider everything that he says carefully, although I will not necessarily shift my view in the direction of his. I shall have one last go at persuading him that the clause is intended to relate to the production of hearsay evidence in court.

Hearsay evidence is of a particular quality and type. We are trying to deal with that fact. It is not possible to assess the significance of the hearsay evidence in relation to the other evidence until the prosecution have produced their entire case. Hearsay evidence necessarily has a distinctive relationship to other evidence. That is why we have drafted a distinctive clause, based on recommendations from the Law Commission. My only concern is to try to make the hon. Gentleman happier about the issue. I hate to see people unnecessarily distressed, and I hope that the amendment can be withdrawn.

The Minister has remained deliciously noncommittal on the question of the existing powers of the court to stop a trial prior to the close of the prosecution case. Has he been advised on that matter by his officials? Could he enlighten the Committee about it?

I am being noncommittal because I am trying desperately—and obviously ineffectively—to draw the attention of the Committee to what the Government believe are the salient points. We could have interesting and learned discussions—I notice that the hon. Gentleman has a great fat tome open before him, and he is no doubt going to enlighten me on the chapter that he has been reading. I ask only that we address ourselves to the salient point, which concerns the relationship of hearsay evidence to other evidence. We believe that it is important that the prosecution should complete their case so that hearsay evidence can be judged in relation to all the other evidence. We have spent almost a whole day discussing the nature of hearsay evidence, and matters concerning quality and safeguards.

Will the Minister give way?

I will give way, but I should like finally, and increasingly desperately, to draw the Committee's attention to the importance of hearsay evidence. Because of the nature of hearsay evidence, the prosecution should complete their case. I hope that I have persuaded the hon. Gentlemen, but I fear not.

In the course of his argument, the Minister said that the existing rules do not allow for the judge to stop the trial until after the close of the prosecution case. The Committee may be interested to know whether the Minister has been enlightened by his officials. Has he corrected what he said?

I can only say that the Committee would no doubt be interested in many fascinating things. Whether Tottenham Hotspur will buy Michael Ricketts from Bolton is a fascinating point to me and no doubt to many other members of the Committee. Nevertheless, the salient point is that the Committee should agree to the clause, which provides that the prosecution should finish their case before a decision is made about whether hearsay evidence is unsound. That is a perfectly sensible proposition, and it is all that the Committee is being asked to consider. We have made our case. I do not think that I can add anything more.

I took a fairly neutral position at the start of the debate. I was not entirely persuaded by the argument of the hon. Member for Woking, although I was interested in it. Having listened to the Minister, I am completely convinced by it. I find it very difficult to follow the Minister's line of argument. I am happy that we do not afford to Committee Chairmen the same power that we give to judges to stop debate early.

I draw the hon. Gentleman's attention to subsection (4), which states:

''This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.''

Surely that deals with the anxiety that the hon. Member for Beaconsfield expressed earlier.

I think that it would do, except that it underlines the philosophical nature of what we are discussing. It seems to exclude the possibility of stopping a case when the main plank of evidence on which the prosecution depends is so unconvincing as to merit the discharge of the jury. Given that a judge may form that view, it would be perverse if he or she were not entitled to call the case to a halt at an earlier stage, even when he or she knows, as judges often do, that the prosecution have nothing of value to add to their case. That position would seem to be extraordinary, and I am entirely convinced by the argument so tellingly put by the hon. Member for Woking.

The Minister has been badly advised. He has had to play a difficult hand of cards, and when one has a hand consisting of twos, rather than tens or aces, one must play them anyway. I hope that he will go away and deal himself a better hand before Report. His response was charming but utterly unconvincing, so I want to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 11.

Question accordingly negatived.

I beg to move amendment No. 421, in

clause 109, page 64, line 43, leave out paragraph (a).

With this it will be convenient to discuss the following amendments:

No. 422, in

clause 109, page 65, line 1, leave out 'provided by the statement' and insert 'against the defendant'.

No. 428, in

clause 109, page 65, line 21, leave out subparagraph (i).

No. 429, in

clause 109, page 65, line 23, leave out 'provided by the statement' and insert 'against the defendant'.

The Minister has actually answered the questions that these probing amendments were designed to explore, concerning the interrelationship between these provisions and the general power to stop a trial. I believe that he said that the general power would remain in place, and on that basis, I need probe no further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Very briefly, has the Minister considered, at any time during the drafting of the clause, whether it would be appropriate to transfer some of the powers available to the civil court to the criminal court, to enable it to apply some sanction or penalty against the prosecution when their case is unconvincing and based on flimsy evidence? That might concentrate the minds of those who present inadequate prosecution cases.

I cannot give the hon. Gentleman an exact answer, because I am not familiar with all the preparations that were made for the Bill. However, we are considering that area more widely. I shall write to the him, because I do not want to mislead him about what has been considered when, and I shall send a copy to other Committee members.

Question put and agreed to.

Clause 109 ordered to stand part of the Bill.