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Judgments - Regina v Kansal

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    32. In R v Lambert [2001] 3 WLR 206 the issues in the certificate which was given by the Court of Appeal under section 33(2) of the Criminal Appeal Act 1968 included the following question:

    "Is a defendant whose trial took place before the coming into force of sections 6 and 7(1)(b) of the Human Rights Act 1998 entitled, after they come into force, to rely, in the course of an appeal, on an alleged breach of his Convention rights by the trial court or an investigating or prosecuting authority?"

    Your Lordships held by a majority, Lord Steyn dissenting, that it was not open to an appellant whose trial took place before the coming into force of the Human Rights Act 1998 to impugn decisions of courts or tribunals under section 6 of that Act on the ground that the court or tribunal had acted in way that was incompatible with a Convention right.

    33. Lord Hutton, who was the only one of your Lordships to indicate in terms how he would answer the question in that case, said that he would answer it "No" in relation to an alleged breach of his rights "by the trial court": p 276, para 203. I said, at p 245, para 116, that I, too, was of the view that the question should be answered in the negative in regard to an alleged breach of the appellant's Convention rights by the trial court. Lord Clyde said, at p 255, para 148, that it was not open to the appellant to invoke the provisions of the 1998 Act "in the present appeal". There was thus a majority for the view that it was appropriate to express the decision in that case in terms which did not extend to a breach of Convention rights by an investigating or prosecuting authority.

    34. But there is no doubt that the reasons which three of your Lordships gave for that decision were not so confined. Lord Slynn of Hadley said, at p 212, para 18, that he would dismiss the appeal on the broader ground that the appellant could not rely on Convention rights in a national court "in respect of a conviction" before the 1998 Act came into force. At p 210, para 9 he said that section 22(4) of the 1998 Act, which extends the application of section 7(1)(b) only where proceedings are brought by a public authority, appeared to indicate that an appeal by an unsuccessful defendant was not to be treated as a proceeding brought by or at the instigation of a public authority. Lord Clyde, at p 253, para 140, also said that in his view the intention was that section 22(4) should not extend to an appeal. Lord Hutton expressed the same view at p 263, para 172. I reached my decision by a different route, as I said, at p 241, para 107, that an accused whose trial took place before the Act came into force was entitled to rely in an appeal after it was in force on an alleged breach of his Convention rights by the prosecuting authority. But Lord Slynn's line of reasoning was supported by a majority of their Lordships in that appeal. That view, which I shall call "the majority view", was the ratio for the decision of the majority.

    35. On its facts the present case differs from R v Lambert [2001] 3 WLR 206 in two respects. In the first place, the respondent's appeal against his conviction in the Crown Court on 18 February 1992 was dismissed by the Court of Appeal (Criminal Division) on 12 May 1992. But his conviction has now been referred back to the Court of Appeal by the Criminal Cases Review Commission. The reference has been made under section 9 of the Criminal Appeal Act 1995 on the ground that, following the judgment of the European Court of Human Rights in Saunders v United Kingdom (1996) 23 EHRR 313 and the coming into effect of the 1998 Act, there is a real possibility that the conviction was unsafe. In the second place, the breach of the respondent's Convention rights in this case is said to have been an act of the prosecutor, not an act by the trial court. The act which was alleged in R v Lambert to be incompatible with the appellant's Convention rights was a direction given to the jury by the trial judge that the appellant required to establish his defence to a charge of possession of a class A controlled drug with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971 under section 28 of that Act on the balance of probabilities. Your Lordships held that this direction was not compatible with article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. As the direction was given by the trial judge it was regarded as an act on the part of the trial court, not an act of the prosecutor.

    36. I shall return later to the question whether the fact that the appeal in this case follows upon a reference by the Criminal Cases Review Commission is a ground for saying that the decision in R v Lambert does not apply to it. It is the second ground for distinguishing that case on its facts that sets the scene for the point which lies at the centre of this case. This is whether the majority view expressed in R v Lambert has foreclosed the argument that the respondent is entitled to take advantage in this appeal of the retrospective application of section 7(1)(b) of the Human Rights Act 1998 in terms of section 22(4) of that Act as he was the victim of a breach of his Convention rights at his trial by the prosecutor.

The facts

    37. The respondent came to this country from India in 1967. He qualified in 1973 as a pharmacist. He later formed a company which operated 20 chemist shops. In about 1983, with the assistance of a large mortgage, he bought a house in joint names with his wife. In 1986 he and his company began to encounter financial problems. In February 1987 the company went into liquidation. On 20 May 1987 a bankruptcy petition was presented against him, and on 11 March 1988 a bankruptcy order was made. On 16 and 23 March 1988 he obtained a substantial sum of money from the Halifax Building Society. He had deceived the building society into making advances to him by making false representations in his application form. On 23 March 1988 his wife took possession of £104,000 in cash, which was part of the amount advanced to the respondent by the building society, and took it in a bin liner to India. On 16 March 1988 the respondent was interviewed by an examiner at the official receiver's office. He was further interviewed there on 20 May 1988. These interviews were conducted under section 291 of the Insolvency Act 1986, which imposes a duty on the bankrupt to answer questions put to him by the official receiver. On 17 June 1988 the respondent was ordered to lodge a cash account relating to his estate. He was publicly examined on 29 July 1988. He failed to account for or give a satisfactory explanation of the loss of his property prior to his bankruptcy.

    38. On 18 February 1992 the respondent was found guilty in the Crown Court at Snaresbrook of two counts of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 (counts 1 and 2) of, being a bankrupt, removing property contrary to section 354(2) of the Insolvency Act 1986 (count 4) and of, being a bankrupt, failing to account for the loss of his property contrary to section 354(3) of the Insolvency Act 1986 (count 5). The prosecution led evidence against him at his trial of answers which he had given under compulsion when he was examined on oath in the bankruptcy proceedings. Section 433 of the Insolvency Act 1986 provides that statements made by a person in response to a requirement imposed by the Act or rules made under it may be used in evidence in proceedings against him. A submission on his behalf that, notwithstanding section 433 of that Act, the transcript of his public examination in the bankruptcy proceedings was inadmissible by virtue of section 31 of the Theft Act 1968 was rejected by the trial judge.

    39. The respondent was sentenced to 15 months' imprisonment on counts 1 and 2 concurrently and to three months' imprisonment on counts 4 and 5 concurrently with each other and with the 15 months' imprisonment on counts 1 and 2. He appealed to the Court of Appeal (Criminal Division) on the ground that the trial judge erred in law in ruling that the answers which he had given during his examination on oath in the bankruptcy proceedings were admissible under section 433 of the Insolvency Act 1986 and were not rendered inadmissible by section 31 of the Theft Act 1968. On 12 May 1992 the Court of Appeal dismissed his appeal.

    40. On 27 April 1998 the Criminal Cases Review Commission referred the respondent's convictions on counts 1 and 2 only to the Court of Appeal (Criminal Division) under section 9(1) of the Criminal Appeal Act 1995. It did so on the ground that there was a real possibility that the court would find his conviction on those counts unsafe in the light of the decision in R v Preddy [1996] AC 815. On 20 June 2000, following further representations on behalf of the respondent, the Commission referred his convictions on counts 4 and 5 also to the Court of Appeal (Criminal Division): see section 9(4) of the 1995 Act. This was done on the ground, among others, that there was a real possibility, following the judgment of the European Court of Human Rights in Saunders v United Kingdom (1996) 23 EHRR 313 and the passing of the Human Rights Act 1998, that the court would find that the admission of the respondents' answers under compulsion at his trial was in breach of article 6 of the Convention and that his convictions on counts 4 and 5, as well as his convictions on counts 1 and 2, were unsafe.

    41. In the meantime, on 28 October 1999, your Lordships gave judgment in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326. One of the issues in that case was whether the Human Rights Act 1998 gave rise to a legitimate expectation that, prior to its taking full effect, the Director would exercise his discretion to consent to a prosecution under the Prevention of Terrorism (Temporary Provisions) Act 1989 in accordance with article 6(2) of the Convention which guarantees the presumption of innocence. The applicants' argument in the Divisional Court was summarised by Lord Bingham of Cornhill CJ at pp 338H-339B:

    "The applicants point out, quite correctly, that section 22(4) introduces an element of retrospectivity on which victims of acts made unlawful by the Convention may rely when section 7(1)(b) is brought into force. Thus they submit that if the applicants are tried and convicted before the central provisions of the Act of 1998 come into force, but their appeal against conviction is heard after those provisions come into force, they will then be entitled on appeal to rely on any ground open to them under the Convention as a ground for quashing the conviction. This, they contend, founds a legitimate expectation that the Director will, before the central provisions come into force, exercise his prosecutorial discretion so as to refuse consent to any prosecution which would, after the provisions come into force, be held unsafe on any Convention ground."

The applicants' argument failed in the Divisional Court on other grounds. But that part of it which relied on the effect of section 22(4) as to their right to rely on the Convention in an appeal was accepted: see p 341A-B per Lord Bingham; p 352C-D per Laws LJ.

    42. The same point formed part of the applicants' argument in this House: see p 360G-H. Lord Hobhouse of Woodborough said, at p 395D, that it was the cornerstone of their argument. The Director presented a contrary argument. At p 368B-C Lord Steyn said:

    "On appeal to this House, but not in the Divisional Court, Mr Pannick argued that section 22(4), read with section 7(1)(b), is apt only to extend to the trial. It was an argument of some technicality. The language of the statute does not compel its adoption and a construction which treats the trial and the appeal as parts of one process is more in keeping with the purpose of the Convention and the Act of 1998. It is the sensible and just construction. I would reject the argument advanced on behalf of the Director on this point."

Lord Slynn of Hadley at p 362A-B, agreed with Lord Steyn. Lord Cooke of Thorndon too said, at p 372C, that he was in general agreement with Lord Steyn. At p 375D I said that, if the Act were in force, the appropriate remedy would be to raise the issue of incompatibility with the Convention right at trial or on appeal.

    43. On 24 May 2001 the Court of Appeal (Criminal Division) (Rose LJ, Rougier and McCombe JJ) [2001] 3 WLR 751 allowed the appeal. The court held that, as a matter of construction, the consequences of the absence from the Criminal Appeal Act 1995 of any time limit for references by the Criminal Cases Review Commission and of section 22(4) of the Human Rights Act 1998 as interpreted in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 were (1) that it was open to the Commission to refer a conviction following a trial whenever it took place and (2) that the court had no option but to declare the conviction unsafe if that was the result either of the admission of evidence obtained in breach of article 6 of the Convention or of a change in the common law: pp 760H-761C. As for the challenge to the safety of the respondent's conviction on all four counts because of the use made at the trial under section 433 of the Insolvency Act 1986 of his answers in the bankruptcy proceedings before the official receiver which were compelled by section 291 of that Act, the court held that the convictions on those counts could not be regarded as safe in the light of the inadmissibility, as it must now be held to be, of those answers and the judge's direction to the jury as to the potential significance of the transcript of those proceedings. The appeal was allowed and the convictions on all counts were quashed.

    44. The Crown asked for and were granted permission to appeal. A certificate was granted under section 33(2) of the Criminal Appeal Act 1968 that the following point of law of general public importance was involved in the decision:

    "Following a reference to the Court of Appeal, Criminal Division, by the Criminal Cases Review Commission, is a defendant whose trial took place before the coming into force of sections 6(1) and 7(1)(b) of the Human Rights Act 1998 entitled after they come into force to rely on an alleged breach of his Convention rights whenever the alleged breach took place?"

The issues in this appeal

    45. The parties are agreed that the issue in this appeal turns on whether there is any material distinction between the facts in R v Lambert [2001] 3 WLR 206 and the facts in this case. The Crown submits that no such distinction can be drawn, that the reasons given by the majority in that case should be applied here also and that in any event, having regard to the provisions of section 6 of the Act read with section 7(1)(b), the two cases are indistinguishable. The respondent submits that his case is to be distinguished from R v Lambert and that the House is not bound by the reasons given in that case by the majority.

    46. Shortly before the hearing of the appeal the Guinness appellants sought leave to intervene and were granted leave to present submissions both orally and in writing. They are parties to two sets of proceedings which raise issues substantially similar to those in the present case and are likely therefore to be affected directly by its outcome. These are their pending appeals before the Court of Appeal (Criminal Division) following references of their cases to that court by the Criminal Cases Review Commission and the Crown's pending application for judicial review of the Commission's reference of their case to the Court of Appeal. Your Lordships have had the benefit of detailed and carefully presented submissions by Mr Emmerson QC for the interveners on a number of matters which were not dealt with at the hearing of the appeals in Ex p Kebilene and R v Lambert.

    47. On one view of the decision in R v Lambert, all that was decided was that decisions of courts and tribunals made before 2 October 2000 cannot be impugned after that date on the ground that the court or tribunal acted incompatibly with a Convention right as the retrospective application of section 7(1)(b) provided for in section 22(4) does not apply to the acts of courts or tribunals. That interpretation of the decision is consistent with the views which I expressed in that case as to the meaning and effect of these provisions in the 1998 Act. As I have explained, it is consistent also with the views expressed by both Lord Clyde and Lord Hutton as to how the question in that case should be answered. That also is how Lord Cooke of Thorndon understood the position to be when he was giving the judgment of the Board in Preiss v General Dental Council [2001] WLR 1926, 1934, para 21. But the Crown maintains that it was decided in R v Lambert that all appeals by an unsuccessful defendant are excluded from the retrospective application of section 7(1)(b) whether or not the act made unlawful by section 6(1) was that of the court or the prosecutor.

    48. If the Crown is right on this point, it will be necessary to deal with two further arguments. The respondent submits that references made to the Court of Appeal by the Criminal Cases Review Commission, and appeals from decisions made on those references, are themselves proceedings brought by or at the instigation of a public authority within the meaning of section 7(6)(a). He also submits that appeals by the Crown or any other public authority in any proceedings, including this appeal to your Lordships' House, are proceedings brought by or at the instigation of a public authority within the meaning of that paragraph. The Crown says in its reply that neither of these propositions assists the respondent. It submits that references by the Commission and appeals which follow after a conviction are to be seen, not as separate proceedings, but as part of the criminal proceedings brought by the Crown with a view to obtaining a conviction. But, as they are appeals, section 7(6)(b) applies to them. So they are not proceedings brought by or at the instigation of a public authority for the purposes of section 22(4).

    49. I propose therefore to approach this case in five stages. The first is to revisit the provisions of sections 7(1) and 7(6) of the 1998 Act in order to see whether the reasons given by the majority in R v Lambert can now be regarded as tenable in the light of the further consideration which has been given to the effect of these provisions in this case. The second is to examine and assess the various practical objections which have been advanced both by the respondent and the interveners to a reading of them which would exclude all appeals against any decisions made before 2 October 2000 from the retrospective effect which is given to section 7(1)(b) by section 22(4). The third is to set out my conclusion on the difficult question whether or not the majority view in R v Lambert should now be departed from if it can no longer be regarded as tenable. The fourth is to examine a ground for the dealing with the point raised in R v Lambert which would appear to avoid the difficulty and then to consider how that reasoning should be applied in this case. I shall deal finally with the respondent's arguments that references by the Criminal Cases Review Commission and appeals by the Crown or other public authority are proceedings by or at the instigation of a public authority to which retrospectivity is given by section 22(4).

Must we adhere to the majority view?

    50. I should like to say something at the outset about the test which I think should be applied as to whether it is open to your Lordships to depart from the majority view in R v Lambert on the question whether the effect of section 22(4) read together with sections 7(1)(b) and 7(6) of the 1998 Act is to exclude all appeals from retrospectivity. I do so because I am conscious of the fact that your Lordships, for various reasons, do not agree with me that it is open to us to depart from the majority view in this case. I must explain why I have reached a different opinion on this point.

    51. As Lord Wilberforce observed in Fitzleet Estates Ltd v Cherry (Inspector of Taxes) [1977] 1 WLR 1345, 1349D-E, the best way to resolve a question as to which there are two eminently possible views is by the considered majority opinion of the ultimate tribunal, and much more than mere doubts as to the correctness of that opinion are needed to justify departing from it. But the development of our jurisprudence on the Human Rights Act 1998 has only just begun. New problems are being revealed every week, if not every day. I believe that the interests of human rights law would not be well served if the House was to regard itself as bound by views expressed by the majority in a previous case about the meaning of provisions in that Act, if to adhere to those reasons would produce serious anomalies or other results which are plainly unsatisfactory: see R v National Insurance Commissioner, Ex p Hudson [1972] AC 944, 966, 993 per Lord Reid and, Viscount Dilhorne. Furthermore, as I shall attempt to show, I do not think that this is case where each of the two competing views on the critical question can be described, in Lord Wilberforce's words, as "eminently possible". With great respect, I consider that the view of the majority in R v Lambert was a mistaken one. If a mistake was indeed made, I believe that it would be better to face up to that fact now and to correct it as soon as possible.

    52. There are four other important factors which I think ought to be taken into account. The first is that views contrary to those of the majority in R v Lambert were expressed by a majority of your Lordships in Ex p Kebilene [2000] 2 AC 326. The majority view in Ex p Kebilene was referred to and applied by the Court of Appeal in this case: [2001] 3 WLR 751, 758E-F, 760A. It was also followed by the Court of Appeal in R v Benjafield [2001] 3 WLR 75, 92F-93D. Lord Woolf CJ, giving the judgment of the court, added these observations, at p 93, para 51:

    "In our judgment, where the original proceedings are brought by, or at the instigation of, a public authority, as is the case with a prosecution, an appeal by the defendant is part of the proceedings to which section 22(4) applies. There cannot be a different position on an appeal from that of the trial so far as the issue of retrospectivity of the Human Rights Act 1998 is concerned. Any other construction would mean that in criminal cases the Court of Appeal could not give the required protection to the individual (who would clearly be a victim of any unlawful act) so that there would be a need for an otherwise unnecessary but time-consuming and expensive trip to Strasbourg. In addition, otherwise section 7(1)(b) will apply where the appeal is by a public authority, but not when the appeal is made by the defendant."

    The fact that the majority view in Ex p Kebilene was consistent with the view expressed by Lord Bingham CJ in the Divisional Court in that case and was endorsed by Lord Woolf CJ in R v Benjafield is significant. It is not easy to dismiss that view as a mistake. It seems to me that this is one of those rare cases which are bound to occur from time to time in a jurisdiction such as ours, however well organised, where the court of last instance has arrived at different conclusions in different cases on the same point. On the other hand I would attach no importance to what was said in Preiss v General Dental Council [2001] WLR 1926. Judgment was not given in R v Lambert until after the hearing of that appeal, so the effect of that judgment was not explored at all during the argument.

    53. The second factor is that the House has not been asked by either party in this case to apply the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 and depart from the bare decision in R v Lambert. I think that this helps to show that the situation is different from that contemplated by Lord Hoffmann in his dissenting judgment in Lewis v Attorney General of Jamaica [2001] 2 AC 50. As he explained, at p 88B-D, all three questions raised by that case had already been considered and answered in three recent decisions of the Board and he did not think that there was any justification for departing from any of them. I do not think that we are presented in this case with the same difficulty. We are dealing here with a question as to the meaning of a statute, not judge-made law or broad issues of principle. As I said at the outset of this judgment, I think that the decision in R v Lambert can be regarded as having been confined by Lord Clyde, Lord Hutton and myself to an alleged breach of Convention rights by the trial court - deliberately so, as that was the only point about the effect of section 22(4) that had to be decided in that case. The question is how the reasoning of the majority about the meaning of the relevant provisions in the 1998 Act is to be applied to different facts and circumstances. Experience tells us that it is not always possible at a stroke to solve all the problems which may arise as to the meaning of a statute. I agree that we should try to speak with one voice and to achieve consistency. There are obvious dangers in departing from a line of reasoning in a previous case which had the support of a majority. But we are not infallible. Looking to the wider public interest, it seems to me that in the present context correction is more desirable than consistency.

    54. The third factor is that the majority view has still not been tested in a civil case. As I shall mention later, one of the principal concerns of the majority was the effect of retrospectivity on past convictions. I agree that this a matter of legitimate concern. But if Parliament had wished to preserve past convictions it could have done so by providing expressly that section 22(4) did not extend to an appeal against conviction. As it is, it is plain that the words in section 7(6)(b) on which the majority view relies extend to all appeals, whether civil or criminal. It would be unsatisfactory if the majority view were to be regarded as having pre-empted the question whether section 22(4) applies to civil appeals, to which the concern about past convictions does not apply.

    55. The fourth factor is the context in which the question which is before the House in this case has been raised. The United Kingdom is required by its treaty obligations to comply with article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides:

    "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The United Kingdom has also undertaken under article 46 of the Convention to accept the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention. These obligations have been binding on the United Kingdom in international law since ratification in 1951. Since 1966 the right of individual petition against the state under article 25 has been available. The purpose of sections 7 to 9 of the 1998 Act is to provide a structure within which effect can be given to these obligations in domestic law. The extent to which the 1998 Act gives retrospective effect to its provisions needs to be seen in that context. This is an exercise which was absent from the discussion which took place in R v Lambert.

 
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