Ivana Bacik (Independent)

I move amendment No. 44:

In page 24, subsection (1), line 19, before "arising" to insert the following:

"which gives to a directed verdict or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury".

This amendment proposes to insert new words into section 23(1) relating to with prejudice prosecution appeals. The amendment seeks to specify what type of errors of law can be the subject of an application under section 23, again being mindful of the change in the law section 23 represents and recognising that the expert group on the balance in criminal law said that a trial that flounders of an error of law made by a trial judge cannot reasonably be described as a trial in due course of law. It argued in favour of a with prejudice right of appeal. However, it stated that the jury decision on the merits, following reception of all admissible evidence, is totally impregnable under its proposal. I agree with that because this should be an exceptional power capable of being exercised only in exceptional circumstances.

The expert group said in the summary of its report that only where the jury is directed as to its verdict, or wrongly prevented from considering admissible evidence, could the jury verdict be impugned. Using the language of the expert group report, we simply specified what type of question could be appealed under section 23, in other words, the decision in favour of the accused and only in a question of law which gives rise to a directed verdict or which prevents the jury from considering evidence which was properly admissible or a misdirection of law to the jury. We have broadened it somewhat from the balance report. I have spotted a typographical error in the amendment and apologise for that. It should state "gives rise to a directed verdict or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury". It simply specifies in order to ensure that this is more watertight and that this will only be exercised in exceptional circumstances.