The proposed change in the law would give the Crown Prosecution Service (CPS) a new right of appeal when a judge has ruled against the prosecution on matters of evidence or procedure.
It was immediately attacked by solicitors, barristers and human rights groups. The Law Society said the proposal was a "matter of real concern". Robert Sayer, president of the Law Society, said a new prosecution right of appeal offended the principal of "double jeopardy", where a person could not be tried twice for the same offence. "Our current system is based on the presumption of innocence," he said..
"If the Crown Prosecution Service, with the resources available to it, can't get it right the first time round, why should they have a second bite at the cherry."
The Bar Council described the proposals as "unusual" and said that serious thought should be given to the prosecution being permitted to challenge the judge's decision on matters of evidence. John Wadham, director of Liberty, the human rights organisation, said he was "surprised to see another erosion of the rights of the defendant".
Under the current law, the CPS and the Attorney-General can only appeal a judge's decision on a general point of law. The prosecution does not have the right to appeal a decision when the judge has directed the jury to acquit the defendant.
But the Attorney-General, Lord Williams of Mostyn QC, said last night that there was an "unjustifiable imbalance" in the criminal justice system in favour of the defendant.
Lord Williams said: "I believe the time has come to re-examine the reasons for concluding that the prosecution should be subject to this restriction."
He said that if a judge decided to throw out a prosecution on the grounds of abuse of process, then the prosecution should be able to test that decision on appeal.
The new right of appeal would allow prosecutors to challenge individual judges' decisions so that the victims' rights could be properly considered. A spokesman for the Attorney-General's Office said that there had been a number of "maverick judges" whose decision needed to be overturned so that the victims of crime could be "vindicated". Under the proposals, the Court of Appeal will be able to hear both sides of the argument. If it finds in favour of the prosecution, then the defendant's acquittal would be struck out and the case retried.
Lord Williams said that under the current system "judges are unaccountable to the appeal courts as to a crucial aspect of their responsibilities". It was important to look at the "imbalance" now because of the impact of the Human Rights Act, which would allow defendants to make more procedural challenges when it came into force next year.
But he said the prosecution right to appeal should be subject to certain safeguards, one of which would be authorisation to appeal being granted by the Director of Public Prosecutions.Reuse content