I beg to move amendment No. 950, in

clause 55, page 34, line 19, leave out

'the termination of the hearing of'.

This is a simple drafting amendment. It has been suggested that the word ''termination'' could imply that the Court of Appeal might make its decision at some other point in appeal proceedings than their end. In short, the phrase is otiose. The removal of the word removes that possible suggestion.

Amendment agreed to.

I beg to move amendment No. 951, in

clause 55, page 34, line 21, leave out subsections (2) and (3) and insert—

'(2) Where the Court of Appeal confirms a ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to the offence be acquitted of the offence.

(3) Where the Court of Appeal reverses or varies a ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—

(a) order that proceedings for the offence may be resumed in the Crown Court,

(b) order that fresh proceedings may be instituted in the Crown Court for the offence,

(c) order that the defendant in relation to the offence be acquitted of the offence.'.

The amendment deals with a situation after the Court of Appeal has disposed of a prosecutor's appeal. Unfortunately, clause 55, although not defective, could lead to unnecessary confusion in some cases. The clause enables the Court of Appeal to confirm, reverse or vary the ruling appealed against. In all cases, it then has the discretion to acquit the defendant. If the court varies or reverses the ruling, the Court of Appeal has the discretion to order the resumption of the proceedings if the trial has been adjourned pending the outcome of the appeal, or fresh proceedings, if the jury—where there is one—has been discharged. I would stress that the Court of Appeal may only make such an order if it considers that it is necessary in the interests of justice to do so.

The problem is that the court is not actually required to make any order under subsections (2) or (3). Its powers to order an acquittal, resumption or fresh proceedings are precisely that: powers rather than obligations. In theory, therefore, the court could confirm, reverse or vary the ruling appealed against, then make no order as to what should happen to the defendant or the trial.

Although it is highly unlikely that the Court of Appeal would fail to act under subsections (2) or (3), we consider that it would be preferable to make it clear that if the court confirms the judge's ruling and so the prosecutor's appeal fails, the defendant must be acquitted. If the Court of Appeal reverses or varies a ruling, it must either acquit the defendant or, if it is

necessary in the interests of justice to do so, order the trial to resume or fresh proceedings to begin.

I am glad that the amendment deals with the issue I raised earlier about acquittal in the case of a ruling being confirmed.

I have a problem with the situation in which a ruling has been reversed or varied. The Court of Appeal, having heard the case of a ruling that was fatal to the case of the prosecution, may uphold that appeal and reverse the decision of the trial judge. In such circumstances, it seems odd that the Court of Appeal would then acquit the defendant when one would have expected that that might be the job of a jury—having heard the full prosecution and defence case—to make that acquittal, given that the prosecution case could then continue without the difficulties introduced by the original ruling.

The Court of Appeal will have heard only the evidence in respect of the particular ruling made by the trial judge and its effect on the case. It will not have heard any other evidence that might have been adduced by the prosecution prior to that ruling. It would seem perverse for the Court of Appeal to have the power to dismiss a case having upheld the appeal without having heard all the prosecution evidence. Why on earth should it have the power of acquittal under those circumstances? There may be an argument that I have not followed, but I would have expected the power of acquittal to be there if the appeal were dismissed. That is the basis of the procedure that the right hon. Lady is introducing.

I could conceive of a minor variation where the prosecution accepted the fact that although the ruling had been varied it was still fatal to the case, but there is no provision for the prosecution to have any say in whether that happens. Under the provision, it is simply for the Court of Appeal, having decided to reverse or vary a ruling, to determine the acquittal of a defendant. That seems peculiar in terms of both justice and procedure, so I have to ask why the provision is in the Bill.

As the hon. Gentleman has anticipated, the order of the Court of Appeal will follow the logic of its ruling. There will be some cases in which one would not want to require the Court of Appeal to follow that order because such cases would have to go back to the judge to make the ruling at first instance. For example, if it transpired that the defendant had suddenly become terminally ill, everybody might agree that the case should stop and that an acquittal should be ordered. The question is whether one sends the case back to the judge at first instance or whether one does it there and then in the Court of Appeal. The provision takes account of the fact that there may be circumstances that, regardless of the overturning of or variation in the ruling, point to the defendant's acquittal. For example, the health of the defendant might not have been known when the case was first heard.

Under what circumstances would the Court of Appeal hear evidence on the health of the defendant? What part would that play in the legal arguments on the admissibility or otherwise of

evidence under the ruling of the judge in the first instance?

I think that the prosecution could accept that the defence had indicated the situation to them. If the defence produced a medical report, the prosecution might accept it and the defence could say to the Court of Appeal, ''You have made your ruling, but we ask you not to order a fresh trial.'' The Court of Appeal would look over at the prosecutor and ask, ''Do you object to that?'' The defence would have made it clear that the request was on the grounds of the defendant's terminal illness, which had just been discovered. The prosecution would get up and say, ''We would not object to the case closing at the first instance.'' The Court of Appeal would be able to close the case there and then. I do not envisage that such cases will be frequent, but what is the point of sending a case back down to the first instance court if the prosecution do not want to carry on with the case at the last minute because something has cropped up?

Amendment agreed to.

Amendment made: No. 952, in page 34, line 31, at end insert

'in respect of an offence'.—[Ms Harman.]

Clause 55, as amended, ordered to stand part of the Bill.

Clauses 56 and 57 ordered to stand part of the Bill.