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The Times
July 25 2000
New proposals would make procedure fairer, says Alan Wilkie
A right of appeal
FIVE years ago, customs officers intercepted smugglers unloading 309kg of cocaine from a boat off the Sussex coast. Eight suspects were arrested and criminal proceedings started.
Three and a half years later, a judge ruled that further prosecution of five of those arrested would be an abuse of the process of the court, bringing to an end one of the biggest drugs cases in criminal history. Should this have been the last word if the judge had got it wrong? That is the question the Law Commission addresses in the consultation paper Prosecution Rights of Appeal against Judges' Rulings, published today.
The criminal justice system aims to convict the guilty and acquit the innocent and, in so doing, reflect the value the community attaches to the autonomy and integrity of the individual. The adversarial system incorporates fair procedures as a means to accuracy. Where they conflict, we must strike a balance between the two.
Usually, a prosecution right of appeal makes an accurate outcome more likely. But it may lengthen the prosecution process and expose the defendant to a second trial. Our provisional conclusions are that only prosecution appeals against rulings that would end proceedings give enough pay-off in accuracy of outcome to outweigh the effect on the individual.
A prosecution appeal against a submission of no case to answer, which takes place immediately after the close of the prosecution case, would potentially be detrimental to accuracy of outcome. If the prosecution could appeal against such a ruling, this might dissuade the defence from making the submission in the first place. That would remove an important safeguard against wrongful conviction.
Our main proposal is that the prosecution should be allowed to appeal against a judge's ruling but only where the ruling terminates the proceedings, and only up until the end of the prosecution evidence, so excluding submissions of no case.
Appeals against jury acquittals would undermine the jury. By contrast, we think that our proposals would enhance the role of the jury. They are designed to stop judges wrongly preventing the jury from considering the merits of the case.
In the drugs case, the first trial came to a halt when the jury had to be discharged. The prosecution would not have needed to appeal against that ruling. It was not a terminating ruling. At the second trial, three defendants were acquitted, one because his counsel made a submission of no case to answer; two by the jury. Under our proposals, these acquittals would, rightly, be unappealable. The other five defendants were convicted by the jury. Their convictions were overturned on appeal and a retrial was ordered. Before it could take place, the judge made his ruling, bringing the case to an end. Under our proposals, that ruling could have been appealed.
Our proposals are designed to make our criminal procedure fairer to the prosecution while protecting the rights of the defendant. Comments should be sent to criminal.lawcom@lcdhq.gsi.gov.uk by October 31.
- The author is a judge and a Law Commissioner.
