Amendment proposed [this day]: No. 940, in

clause 49, page 31, line 37, leave out from 'termination' to end of line 41 and insert

'or stay of proceedings for the offence, or one or more of the offences, included in the indictment'.—[Ms Harman.]

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

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

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.

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.

I beg to move amendment No. 941, in

clause 49, page 31, line 43, leave out 'against a defendant'.

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.

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

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.

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.

I want to save most of my remarks for the clause stand part debate. However, I will speak briefly to my amendment, No. 988, which applies to clause 52, but is in this group. It is a probing amendment. Under clause 52, where a prosecution have a right to appeal against what appears to be a non-terminating ruling, they effectively have to give an undertaking that the case is all over if the appeal is abandoned or leave is not obtained. That seems slightly odd, because it may be

putting the prosecution in a worse position than if they had accepted the ruling in the first place, even though the non-terminating ruling was potentially a little damaging to their case. By not appealing against the ruling, the prosecution might have continued to win the case, but by appealing, they are effectively saying, ''If we don't win on this narrow point, we are dead in the water.'' That seems a little odd, and I wonder whether the Solicitor-General will help me on that point.

On the Government amendments, the Solicitor-General has explained, but I am not entirely clear why we are omitting the words ''against a defendant'' in line 43 on page 31. I assume that ''termination of proceedings'' must mean termination of proceedings against a defendant. I am not entirely sure what the removal of the words adds or subtracts in relation to that.

Finally, the Government want to amend the last line on page 31. In place of the words ''a fresh trial'', they want to substitute the words ''fresh proceedings''. I am not entirely clear in my mind about the difference between a fresh trial and fresh proceedings. Those are my only queries on that group of amendments; I will make other remarks in the clause stand part debate.

There is one area on which I hope that the Solicitor-General will be able to help me. Obviously, it makes sense in terms of the management of the process and resources for proceedings to continue as far as possible while the appeal process carries on for a specific offence or defendant. I understand that. My concern relates to an appeal being lodged against a judge's ruling on admissibility of evidence, for instance, which is terminal to a particular prosecution, but may be prejudicial but not terminal to other prosecutions, in terms either of other defendants or of other offences being tried in the same proceedings.

As I understand it, there would be no provision in that instance for that prejudice to be remedied by appeal before proceedings continued, unless the judge was prepared to make a ruling. If I have understood that correctly, can that be right and should there not be some sort of appeal process against such a ruling to make that consistent with the general approach that the Government are adopting? I can foresee circumstances in which a body of evidence might be ruled inadmissible, fatal to one case and damaging but not fatal to another. Under the rules set out here, as I understand them, the prosecutor would be able to appeal against that only on the basis of the case to which the inadmissibility is fatal, not that to which it is damaging. I hope that I have made myself clear on that slightly complicated point, and I should be grateful for the Solicitor-General's view.

The hon. Gentlemen have made the same point, but with slightly different examples. The hon. Member for Woking was probing why the prosecution must say, before applying for leave to appeal, that they will throw in the towel if they lose. He asked whether there could be a case in which a ruling is very damaging but could not be predicted to be fatal, so what is the logic of

retaining stopping with terminal? That is a good question and we should think about it.

We did not want to be widespread and allow a thousand flowers to bloom with everything happening in the Court of Appeal instead of at first instance. We wanted to take a narrower and more cautious approach, but the boundaries of logic can soon be tested. We will think about the point made by the hon. Member for Woking.

The hon. Member for Somerton and Frome made the same point in relation to a two-handed case and what happens if it is terminal in relation to one. That is clear, but if it is seriously weakening in the second case, that returns to the point made by the hon. Member for Woking and we will have to think about that.

Amendment No. 941 omits ''against a defendant'' in clause 49(1)(a) and is a simplification of the wording in the light of other changes to accommodate multiple defendants and defences. The hon. Member for Woking will be delighted to know that it is not a complication but a simplification.

Amendment No. 942 replaces the words ''a fresh trial'' with ''fresh proceedings'' and is, thank goodness, another simplification which is not intended to be a substantive change. I thought that the hon. Gentleman was going to ask me the difference between a fresh trial and a retrial. I know the answer, but he has not asked the question, so I shall not give the answer.

I am not sure that I know the answer, and if the Minister knows it, it would be helpful if she would tell me, so that I also know it.

I walked into that one. A retrial is when there has been a trial but the jury were unable to agree and the proceedings start all over again with a fresh jury and a fresh judge. A fresh trial is when the original trial was abandoned part of the way through and the case goes to the Court of Appeal and is sent back for a fresh trial.

They sound the same to me.

The Committee will immediately see the intellectual distinction between the two.

I am grateful to the Solicitor-General. I think that she has recognised that there may be some merit in our query about the point on clause 52 relating to the prosecution throwing their hand in. I am pleased that she has given me that response and will give it further thought. What she has said may be right, but if she will look at the matter again, I shall be grateful.

Amendment agreed to.

Amendment made: No. 942, in

clause 49, page 31, line 44, leave out

'a fresh trial of the defendant'

and insert 'fresh proceedings'.—[Ms Harman.]

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

May I begin my remarks by adding my thanks to those of the hon. Member for Somerton and Frome for the chart that the Solicitor-General has given us, which we shall consider in due course in connection with the procedures when the appeals take place? However, we are dealing now with terminating rulings, and I want to put on the record precisely what we mean and do not mean by that phrase.

I think that it is generally understood that a terminating ruling is one which terminates a case. There can be no issue about the two categories, and I hope that the Minister will confirm that the order of no case to answer and the issuing of a stay of proceedings as a result of an abuse of process are both terminating rulings. They are both undoubtedly, even in layman's terms, rulings that terminate a case: it is goodbye to the case. Will the Solicitor-General confirm that they are two terminating rulings and that, if a jury is discharged for one reason or another, that is not a terminating ruling but merely a ruling to discharge a jury? When a jury is discharged, it is a matter for the Crown whether it starts again: sometimes it does and sometimes it does not.

The two classic terminating rulings of a stay for abuse of process and a submission of no case to answer are well known to us all. Before lunch one or two examples were given of a stay for abuse of process. ''Stay'' is a more general term even than a stay for abuse of process. I suspect that one that may crop up in the future is a stay on the basis that one cannot get a fair trial because of the likely publicity—an infringement of article 6, I believe. Abuse of process is well known, and I do not need to go into it further now.

The submission of no case to answer is also interesting. It occurs when the position has been reached that there is some evidence, but it is extremely tenuous and inherently weak. If the judge concludes that the Crown evidence, at its highest, is such that a jury properly directed cannot properly convict, it is his duty on a submission to stop the case. That happened in the famous case of Galbraith.

At any stage during a jury trial the jury has a right to acquit of its own volition. From time to time the jury will send a note through saying, ''We've had enough of this. This defendant is not guilty. That is the end of the story. We don't need to go any further, thank you.'' However, the jury's decision cannot be put into practice without further observations from the judge. It boils down to what is very similar to a submission of no case to answer from the counsel, but this time the jury is saying, ''We will not convict. That's it.'' The jury has an inherent right to do that. What happens in that situation? Is that a terminating ruling? If not, what would be the consequences? If it is, would the prosecution have any right to appeal?

I do not know whether there are any other terminating rulings. I expect that the Solicitor-General will in due course tell me that several other rulings fall in another category and are, therefore, subject to slightly different rules; for example, the simple rulings that a judge may make at any stage during a case. There are so many, some of which are

major ones, that it would be helpful to know against which the Crown will be able to appeal.

The Solicitor-General mentioned the sort of ruling in which a piece of evidence is excluded by the judge. Such evidence may be a main plank of the prosecution case, such that its exclusion condemns the prosecution to certain failure. The prosecutor may say that he cannot carry on if a key piece of evidence is excluded. For example, evidence from an identification parade or identification on a voir dire—a trial within a trial—may be excluded by the judge. The judge is not stopping the trial by giving a terminating ruling, but he is excluding prosecution evidence so that the prosecution cannot possibly proceed. That would effectively result in an invitation by the prosecution to the judge to direct the jury—the defendant would be in the jury's charge at that point—to find the defendant not guilty because the prosecution will offer no further evidence.

There are many other examples of evidence that may be ruled in or out, for example, under section 78 of the Police and Criminal Evidence Act 1984 or under whatever the Bill says about day-to-day rulings. I have forgotten our discussions about evidence earlier in our proceedings. Are any rulings simply not appealable? There are some trivial rulings. For example, the judge may rule that he does not want counsel to ask a question. No one in their right mind would consider that such a ruling could possibly be subject to any form of appeal.

My observations at this stage relate to what I understand to be terminating rulings. If I have missed any, I am sure that we will come on to them later.

Let me take my hon. Friend back to his earlier remarks about the finding of no case to answer. Will he confirm that that usually, if not invariably, results in the judge inviting the jury to enter a verdict of not guilty?

Indeed, my hon. Friend is right. In such a case, the judge will simply say to the jury, ''I have heard the legal argument and found that there is no case to answer. Therefore, members of the jury, I invite you to produce a verdict of not guilty on the defendant in your charge.'' I fear I have been somewhat discursive.

If the defendant has been told that he is not guilty, does not it follow that events should occur as quickly as possible if there is any prospect of an alteration to the verdict? An appeal against the terminating ruling may result in a retrial in which there would be the possibility of a fresh verdict of guilty.

Yes, my hon. Friend makes a good point, which brings me on to an even better point. It occurred to me while I was listening carefully to his intervention. There must be a difference between a ruling by a judge that proceedings be stayed because of abuse of process, for example, and a not guilty verdict from the jury, which would follow a submission of no case to answer.

I take the point of the hon. Member for Hertsmere (Mr. Clappison). In

practice, if the prosecution are alive to the notion—because the submission is taking place they are presumably alive to the consequences—the court would be minded not to take the full step of getting a not guilty verdict. It would be interlocutory. If the decision went one way or the other, one would come to the formalities at some other stage. One would not be overturning a not guilty verdict, but making an interlocutory appeal against the terminating ruling.

The hon. Gentleman may be right. In a situation under future law as we imagine it, on a submission of no case to answer accepted by a judge, he will not go that extra step and say to the jury, ''Bring in a verdict of not guilty,'' because he would be aware that the interlocutory appeal was effectively against his ruling.

But it would be incumbent on the prosecution to put the judge in mind of that.

I suspect that that is right.

The Committee is entitled to hear about such matters. At first glance, I thought that my observation that there was a big difference between a jury being directed to find a verdict of not guilty and a judge staying a trial for whatever reason was quite a good point. Through the help of the hon. Gentleman's intervention, I think that we have probably cleared up the difference. That concludes my remarks on terminating rulings and the meaning thereof, but there will be other debates on other aspects later.

I have one point to add to what the hon. Gentleman has usefully been saying about the definitions. It is an area into which I stray with some trepidation as a non-lawyer. I believe that I am right in saying that one terminating ruling might be a direction of nolle prosequi. Were that to be the case, I am not clear that that is a ruling by a judge of the Crown court, because it is a direction from the Attorney-General. I am not clear whether that is actioned by a ruling of the judge in court and therefore can be appealed against. Would the Solicitor-General help me on that point? It seems to me that there ought to be some right to appeal against that particular direction. I have thought of a mechanism by which it could happen.

The hon. Member for Woking helpfully set out the two major examples of terminal ruling. First, for an order that there is no case to answer, the judge will say, ''The case is too weak and there is insufficient evidence. I have to direct the jury that it cannot convict on the basis of the evidence; it just doesn't come up to scratch.'' Secondly, there is a stay for abuse of process. That might be, for example, a case in which someone cannot get a fair trial because of publicity.

A jury discharged is not actually a terminating ruling, and that is made clear in the Bill. It is a matter for the Crown whether it starts again. It might be decided that the case has been gone through, all the witnesses are exhausted and it cannot proceed for those and other reasons. That is not a terminating ruling; it has been excluded. Discharge of individual jurors is also excluded. The judge can make orders

ruling for individual jurors to be discharged, but that is not regarded as a terminal ruling or appealable.

The hon. Gentleman asked about when a jury acquit of their own volition. Emphatically, the prosecution have no right of appeal against a jury's decision at any stage to come in with an acquittal. That is not on the agenda here. This is about moving from one judge—a first instance judge—up to a higher court. It is not about using the higher court to overrule the jury. That is not the case, and one can see that on the face of the Bill.

There are other examples of terminal rulings, such as that in case 4, which terminated the case but was not really recognisable as a no case to answer or a stay. The judge dismissed the case before the evidence had been called. A real example is that the defendant pleaded not guilty to the charge of possessing an offensive weapon. Before the prosecution could call their evidence, the judge directed an acquittal because he thought that a conviction was unlikely. On a reference by the Attorney-General under section 36 of the Criminal Justice Act 1972, which allows references to the Court of Appeal against such rulings, the Court of Appeal held that the judge had no power to make the ruling. If the Attorney-General already has an opportunity to take up such matters with the Court of Appeal, people might wonder what are we are doing.

We cannot do anything about it.

The hon. Gentleman has anticipated my saying that the review would not sort out that trial—it sorts out the law. It might shoot across the bows of a particular judge, but it does not actually do justice in that particular case because the case has fallen by the wayside. It is a technical, backward-looking review, but the judge directed an acquittal.

That leads me neatly on to the point raised by several hon. Members: how can one have an appeal against a ruling when the effect of the ruling is that the defendant is acquitted because the case has fallen? The answer is that there is a sort of ruling interruptus whereby the judge, about to make his ruling, and because he knows he is going to do so, stops and says, ''I am minded to make this ruling,'' which would be terminating. In future, when judges are about to make rulings that are unequivocally terminating, they will have to give an indication in advance that they are minded to do so. The judge will say, ''I have heard arguments from both sides. I am minded to make this ruling in this case,'' which will have the effect of terminating it. That gives the opportunity for the prosecution to say either, ''We are going to apply for leave to appeal,'' or, ''Can we please have an adjournment overnight while we consider whether to apply?''

That is where we get to the process map. Hon. Members have already forced me to amend the chart. What I should have put is, ''Proceedings in Crown court—judge indicates 'minded' to make terminal ruling''. Of course, he does not actually make it. If he had made it, the case would have been terminated.

I am grateful for the important point that the Solicitor-General has made. Will she

confirm that what follows the scenario that she has described—where the judge has said that he is minded to make such a decision and the prosecution will then decide whether they want to enter an appeal against his terminating ruling—is that it is the end of that trial and it is for the Court of Appeal to decide whether there will be a fresh trial?

The answer to that is not necessarily, because the judge can decide at that stage. If a jury are empanelled for a long trial, they have agreed that they are free for, say, three months. If the trial has gone a long way and it is possible to get up to the Court of Appeal in three days, why discharge the jury and make another jury go through three months' worth of evidence when one can have a quick, interlocutory application up to the Court of Appeal to decide a point in the case? If it is a complicated point of law, and if the prosecution want to make something long and complicated out of it and the defence want to think carefully about how to deal with it, people might think that the jury will not be able to remember what they have heard. Therefore, the judge might say, ''On the basis of what we must now make the Court of Appeal decide, I shall discharge the jury''. If the Court of Appeal strikes down the judge's ruling, we get what we now know as a fresh trial.

We must be careful before assuming that a case can go to the Court of Appeal within three days and that it will all be heard quickly. Will there not be a problem with the type of case in which the judge is minded to enter a finding of no case to answer on the basis of what he has seen of the prosecution witnesses? He may find them unsatisfactory and unreliable and may not be willing to risk a conviction being founded on their evidence. Will the Court of Appeal then have to go through all that evidence, which has been tendered at second hand, and try, without having the benefit of seeing the prosecution witnesses, to second-guess the judge's decision?

To some extent that happens on a defence appeal, but the answer is yes. In a no case to answer ruling, the Court of Appeal must look at the judge's ruling. To the extent that the judge makes a ruling about evidence that the court has heard, the Court of Appeal might have to refer to the transcript.

The Solicitor-General is not quite on my point. I understand what she means when she says that that is what happens in appeals by the defence to the Court of Appeal, but in those cases there has been a conviction and the trial has come to an end. My point was one of time. How will all that happen in a time scale that allows the trial to be continued? The Court of Appeal will have to go through all the evidence tendered by prosecution witnesses to decide whether the judge was right in taking a dislike to them and not having confidence in their evidence, without being able to hear those witnesses, and will therefore necessarily have to go through the transcript of the trial.

The hon. Gentleman makes an important point. It was the second point that I responded to when I began my reply. The first was whether, in principle, it is fair and a good idea, and the second was whether it is workable.

An assessment will have to be made of the length of time that the process will take. If it will take a long time, because the Court of Appeal is busy or the issue is long and complex and affects many other cases, the judge will be likely to discharge the jury and start a fresh trial with a fresh jury. Therefore, an assessment will have to be made whether to ask the jury to hang about or to discharge them. That goes to whether there will be an expedited process—the procedure with which we shall deal later. The trial judge will either say, ''This will be an expedited trial. I want it expedited because I have the jury here in my sight. The evidence is fresh in our minds. We want the case expedited,'' or he will say, ''We haven't started the trial yet. The jury is not even empanelled,'' or, ''We have only had the first day. I don't want it expedited.'' The trial judge will decide which of the two paths to take—expedited or not expedited.

I may have missed something, but what is the position if a terminal ruling is made by a district judge? Does the appeal go to the Crown court or to the Court of Appeal? Do we need legislative measures to secure an arrangement whereby a terminating ruling from a district judge goes to the Court of Appeal or the Crown court?

Terminating rulings by district judges are not appealable under the clause. They are not affected.

The hon. Member for Somerton and Frome asked about entering a nolle prosequi. Of course, the prosecution enter the nolle prosequi, and would not be likely to appeal against their own nolle prosequi. It is a way of stopping a case other than through the jury; the hon. Gentleman is right about that. There are three ways to stop a case: nolle prosequi, the jury or the judge. There can be no appeal against anything that the jury do to end the case. Nolle prosequi is entered by the prosecution so it is hardly likely to be subject to a prosecution right of appeal. We are talking about the judge's ruling to terminate a case.

The hon. Member for Woking asked me about a case where counsel wants to put a question and the defence argue that they do not want the question put, thus leading the judge to tell the counsel not to put the question. It might be critical. In the absence of the jury, they might all carry out legal argument about whether the question can be put. Are we thinking about a defence application in relation to the cross-examination of a prosecution witness, or are we thinking about a prosecution application in relation to cross-examination of a defence witness? A terminating ruling is like an elephant. One can recognise it when it comes lumbering through the doors of the court. If it looks like a terminal ruling, it is appealable.

I am slightly stunned, but I think I get the point. If it looks like an elephant, one recognises it. I assume that within the ambit of non-terminating

rulings, there is an application to treat a witness as hostile that is refused.

There might be. The hon. Gentleman can have a quick butcher's at clause 52, and advise me about the answer to that.

I think that I have dealt with all the points that have been made. If I have not, we shall be returning to the current territory under subsequent amendments.

Question put and agreed to.

Clause 49, as amended, ordered to stand part of the Bill.