I beg to move amendment No. 985, in

clause 50, page 32, line 6, leave out from 'evidence' to end of line 7.

We now come to the even more interesting clause 50. Although colleagues will want to make observations in relation to clause stand part, my duty is to speak to the amendment.

Amendment No. 985 is a probing one, which does not need to be pursued seriously. I was seeking to omit the prosecution's right of appeal in relation to a ruling that there is no case to answer. I accept what the Minister has told us under clause 49, so I beg to ask leave to withdraw the amendment.

It is not moved.

Amendments made: No. 943, in

clause 50, page 32, line 10, leave out '51(3)' and insert '51'.

No. 944, in

clause 50, page 32, line 18, leave out '52(2) and (4)' and insert '52'.—[Ms Harman.]

I beg to move amendment No. 986, in

clause 50, page 32, line 25, after 'jury', insert 'or a juror'.

Subsection (7) states specifically that the prosecution have no right of appeal in respect of a ruling that a jury be discharged. That is understandable. I inserted ''or a juror'' because it is a much more frequent occurrence in court for one or more jurors to be discharged. Sometimes there can be quite an argument about whether a juror should be discharged.

For example, I recall a case in which someone was charged with possession of cannabis. The jury were sworn and then one of the jurors stood up and said, ''Your honour, I do not think that possession of cannabis should be an offence, so I do not think that this is much of a business anyway.'' There followed tremendous argument about whether that juror should be discharged. The defence counsel took the view that it was helpful to keep the juror on board, while the Crown, not unnaturally, took the view that it was not so helpful. Eventually, the judge said to the juror, ''Well, never mind your personal views. Do you think that you can give the defendant a fair trial on the evidence?'' The juror said, ''Of course I can. I am just telling you my personal views,'' and the trial continued, so it was not a big issue.

Jurors do get discharged from time to time. The clause states that there is no right of appeal against the discharge of a jury, but the fact that the words ''or a juror'' are not in the subsection makes me wonder how I know it to be the case that there is equally no right of appeal in relation to the discharge of one or more jurors. That is the reason behind my amendment.

As in the hon. Gentleman's example, the prosecution and the defence can argue about whether it is right for a juror to be discharged, and that will carry on. The question is whether the prosecution need a right to appeal to the Court of Appeal about the juror. Up to three jurors can be discharged during the course of a trial and the trial can still go on. Therefore, it was decided not to include that provision: it is not included because the trial can carry on. There is no right of appeal.

That was a helpful response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I just want to ask the Solicitor-General about subsection (6) and the question of the leave of the judge who made the ruling. In what circumstances could a judge not give leave for an appeal against a ruling that he or she made? The subsection is silent on the grounds that the judge will consider when deciding whether to give leave. Does the Solicitor-General have guidance that she would want to make known to a judge when exercising that discretion?

We do not yet move on to the timings, which, I think, are dealt with under clause 51. I see the Solicitor-General nodding. There are a number of issues that I want to raise in relation to this clause. I need her help to decide in my own mind what subsection (1) means. It states quite plainly that the prosecution have

''a right of appeal . . . in respect of a terminating ruling''—

well, we know what one of those is—

''which is made before the time when the jury is sworn''.

I leave aside the observation that it seems strange that all these rules apply to Crown court trials, whereas most trials take place before magistrates or district judges. There appear to be no similar rights for the prosecution there. My point is that a terminating ruling made before the time when the jury are sworn is quite likely to be an abuse argument—for example, on the fair trial point—and I understand that. However, the next part of the subsection is difficult because the right of appeal exists in respect of terminating a ruling that is made after that time but before the conclusion of the prosecution's evidence. That means that if a ruling is made before the conclusion of the prosecution evidence, there is a right of appeal, but if it is made afterwards there is not a right of appeal, and I should like to know why.

For example, it is possible to envisage a situation in which the Crown's evidence is completed. The Crown says, ''Your honour, that is the case for the Crown.''

Immediately thereafter, an argument comes from the defence that the defendant has only been able to form a view about the nature of their application, namely an abuse argument, as a result of listening to all the Crown's evidence. It may be that the abuse argument takes place only after the conclusion of the Crown's evidence. Indeed, it may be that the abuse argument can be made only later in the case because the facts that give rise to it may not happen until after the Crown case is completed. I have invented that case, but it might well happen because notes are often passed in court from one person to another.

Envisage a situation in which at the conclusion of the Crown case a note, which has been passed by the officer in the case to the chief Crown witness who is another police officer, is discovered—this will not happen in practice, because the police have integrity, but we need to get the law right. Imagine if the note were found in a wastepaper basket just after the defendant had given his evidence. The note states, ''Dear Fred, your evidence was good—we both know he's not guilty of this one but he's guilty of lots of others, and I think we've got him potted this time,'' signed John. That note is from the chief officer in the case to the chief Crown witness.

At that stage, there will be an application for a stay for abuse of process. Indeed, the evidence for abuse of process arguments may crop up only later in a case, which is why I have queried whether the prosecution have the right to appeal on terminating a ruling. The right is limited to something that happens before the conclusion of the prosecution's evidence. I can think of all sorts of rulings that might be made later in cases that are not covered by the provision: for example, rulings well after the prosecution evidence has been completed concerning whether the defendant has good character. Such rulings can be made at any stage during a case. That also applies to the ability to allow or disallow a particular piece of evidence. My query is on why there is a limit on the timing of a ruling, although the Solicitor-General has obviously dealt with the issue of the district judge.

Subsection (9) states that

''a ruling that there is no case to answer includes a reference to a ruling that a jury properly directed cannot properly convict''.

That seems to be an unnecessary addition, as the one is exactly the same as the other. It is another way of saying that a ruling that there is no case to answer means a ruling that a jury, properly directed, cannot properly convict. I have no idea why that provision is in the clause, as it adds nothing to the sum of our knowledge, and the Solicitor-General may want to take it out.

I wish to raise a query about subsection (3). In his earlier remarks, my hon. Friend the Member for Woking rightly asked the Solicitor-General whether there was to be a prosecution right of appeal in rulings other than terminating rulings. I suspect that the answer may lie in subsection (3), which appears to give the prosecution a right of appeal against rulings made by judges that are not terminating rulings. However, it

seems evident from the clause, from what follows in clause 52 and from what the notes on clauses say about subsection (3) that such an appeal will take place only in respect of serious rulings for the prosecution case:

''rulings which are so damaging to the prosecution case, that, but for the right of appeal, the prosecution would terminate its case.''

I understand that, but I want to ask the Solicitor-General how it will work in practice.

Under subsection (3) the prosecution has the right of appeal against rulings made by the judge either before the jury are sworn, which is paragraph (a), or after they have been sworn but before the conclusion of the prosecution evidence, which is paragraph (b). The Solicitor-General will know that it is common for such rulings to be made in the absence of the jury after they have been sworn. There may be hearings in the absence of the jury on matters relating to, for example, the Police and Criminal Evidence Act 1984 or the admissibility of interview evidence, which may be important to the prosecution case.

Under subsection (4) it appears that that right of appeal will be subject to clause 52(2) and (4). If the prosecution decide to enter such an appeal, it is a nuclear option. If they take an appeal to the Court of Appeal and they are not successful, they must throw their hand in and abandon the case. How will that work in practice? In particular, what happens to the original trial and jury while those proceedings are taking place? In the scenario envisaged in the clause, the jury have been sworn in, evidence has been heard in their absence, the prosecution do not like the judge's ruling and they appeal it to the Court of Appeal. What happens to the original trial and jury?

The case may go to the Court of Appeal, which may decide to uphold the judge's ruling. If it does, the prosecution must throw their hand in: the case must go back to the court. What happens if the Court of Appeal decides to allow the prosecution's appeal? Does the case go back to the original jury or will there be a fresh trial? We want to hear a little about that. Without further guidance from the Solicitor-General, that scenario seems to envisage the original trial and jury being left hanging in the air while the Court of Appeal reaches a decision on the prosecution's appeal. How will it work?

The hon. Member for Hertsmere asked why it had to be the nuclear option. I said that the intention was that it should be constrained narrowly to only the most serious cases, but the hon. Member for Woking referred to fatally weakening cases where it would not be right to take only the nuclear option, and I said that I would consider that question.

If the case went to the Court of Appeal and it found against the prosecution, the case would go back to the trial judge, who would direct an acquittal—assuming that the proceedings had been adjourned, as opposed to the jury having been discharged. If there were no jury waiting for the case to return, the case would simply not restart. It would depend on whether the matter was expedited or not.

In that instance, would the defendant have been acquitted? No jury would have been directed to acquit.

No. The defendant would not have been acquitted. It is still the case that once the defendant has been acquitted, that is it, in the context of these provisions. We are not dealing with double jeopardy. Once the judge has directed the jury to acquit the defendant, or the jury have acquitted him, that is it.

Perhaps I did not explain myself very well. From what the right hon. Lady said, I take it that if the jury is still available, that is fine; I understand that. If the case is sent back to the jury and the judge gives a direction to acquit, the person is acquitted. However, she said that if the jury have been discharged, proceedings will simply not be restarted. That will, as I understand matters, leave the indictment standing. No acquittal will have been entered.

If the Court of Appeal confirmed the judge's ruling and did not allow the prosecution appeal, it would order an acquittal under clause 55, which we have yet to reach. When we do, all will become clear.

I do not know whether I have yet dealt satisfactorily with the point made by the hon. Member for Hertsmere.

I was not challenging the nuclear option—it just seemed an appropriate way to characterise clause 52(2) and (4). I really wanted to know about timing. The Solicitor-General has dealt with what would happen if the Court of Appeal decided to uphold the ruling under clause 55. What would happen if it disagreed with the judge's ruling, overturned it and ordered the case to be sent back? Would it then be tried by the original jury, who presumably would have been waiting while the case was adjourned?

It would depend on whether the jury had been discharged. If the jury were still empanelled for the case, that case could return to the same jury. When legal arguments are necessary, the judge hears arguments in the jury's absence, and the jury must wait. Effectively, instead of the jury waiting while legal argument took place in their absence in the court where the case was being tried, they would wait while legal argument took place first in that court and then in the Court of Appeal. However, if the process was likely to be prolonged, the judge would discharge the jury and the case would not be dealt with as a fast-track procedure.

The judge, wanting the case expedited, might decide to keep the jury and nip quickly to the Court of Appeal, only to find that the Court of Appeal could not hear it because all its cases had overrun. In that case the judge would have the option to decide to discharge the jury, matters having turned out more complicated than he thought. Decisions would be made on a case-by-case basis, depending on whether the jury were waiting for the case to be sent back from the Court of Appeal, or whether they had been

discharged. If the prosecution objection were upheld, a fresh trial with a new jury would be held.

The hon. Member for Woking asked why, under subsection (1), the right of appeal exists only up to the end of the prosecution case, or when there is no case to answer. He asked about a terminal ruling, other than no case to answer, coming after the prosecution case. However, the Law Commission report, from whence the provisions sprang, goes straight from what happens during the prosecution case to a ruling of no case to answer, so the answer is not immediately evident. I am sure that there is a good reason for that, but I will have to get back to the hon. Gentleman.

The hon. Gentleman asked about subsection (9). It might not be necessary to drag this out, although it might be—[Laughter.] This is a serious point. The provision was included because there may have been a problem otherwise. A ruling of no case to answer can be made if there is no evidence that the defendant committed the alleged offence, or if the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it. The first limb is regarded as a point of law, while the second involves the judge coming to a conclusion on the evidence. Subsection (9) is intended to ensure, for the avoidance of doubt, that the expression ''no case to answer'' is readily construed as encompassing both limbs.

Was there any doubt about that?

Well, one never knows. There might have been a doubt in future cases, so why not avoid it? We should seek to avoid doubt, as long as we are clear about why we have included the provision.

The Law Commission took the view that the vast majority of terminating judicial rulings took place during the prosecution case. It therefore recommended that the right of appeal should be available up to the end of the prosecution case, as we discussed. However, we are also aware that the judge may withdraw a case from the jury at any point during the trial, following a ruling of no case to answer. We are aware that there is some inconsistency in the clause, and we are considering how best to approach the issue. We will note the hon. Gentleman's points when considering it. Indeed, there has been some mind-reading going on, and his mind has already been read. His points are well taken, and I hope that I have dealt with them all.

The Solicitor-General did not deal with the circumstances in which a judge might not grant leave.

I beg the hon. Gentleman's pardon. On what basis will the trial judge or, indeed, the Court of Appeal decide when to grant leave? The trial judge will hear the prosecution argument, and if he thinks that it is entirely without merit—that it is one of the worst arguments that he has ever heard—he might not be happy to give leave. He might think that the Court of Appeal will say, ''Why on earth has this judge given leave? Why is our time being taken up with this entirely unmeritorious point?'' If it is an open and

shut case, therefore, he might be minded to refuse leave, and the prosecution can apply to the Court of Appeal for leave. If he thinks that it is a difficult, agonising decision, however, he is likely to send it to the Court of Appeal. I think that the parameters for deciding applications for leave will become clear to judges once the Court of Appeal starts handling these issues.

The rules governing applications for leave will be the same as those that apply to everything else. Leave is basically a tripwire, which will ensure that really unmeritorious cases do not get through. In the Law Commission's report there is some discussion about whether that tripwire should be ''only with the DPP's consent'', or only ''referred as by the Attorney-General''. We have dealt with the matter by saying that leave must be granted. In that way, the Court of Appeal will not find itself obliged to hear arguments that it does not really think that it should be hearing.

Will there be a process for the seeking of leave to appeal to be expedited?

A case will either be expedited or not. There are two aspects: the application for leave and the hearing. The application has to be expedited in that it must be done on day 2. The applicant cannot hang around considering whether it applies; he must make his mind up and go for it. The Court of Appeal's hearing of an application for leave, its having been refused by the judge in the first instance, will depend on whether it is an expedited case.

Question put and agreed to.

Clause 50, as amended, ordered to stand part of the Bill.