House of Lords
|Session 2001- 02
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|Judgments - Regina v Kansal
HOUSE OF LORDS
Lord Slynn of Hadley Lord Lloyd of Berwick Lord Steyn Lord Hope of Craighead Lord Hutton
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
ON 29 NOVEMBER 2001
 UKHL 62
1. On 18 February 1992 the respondent was convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was required to deliver up to the Official Receiver or his trustee, contrary to section 354(2); and (b) he failed without reasonable excuse to account for the loss of a substantial part of his property or to give a satisfactory explanation of the manner of the loss, contrary to section 354(3). Large sums were involvedhe obtained from the Halifax Building Society £150,000 and £116,250 on a false representation as to his income and that he was not bankrupt and that he did not have any judgment or proceedings for debt outstanding. Prior to these advances on 11 March 1998 a bankruptcy order was made against him. On 23 March 1988 his wife collected from his solicitor £104,000 in cash, part of the monies advanced by the Building Society, and took it in a bin liner to India.
2. At his trial in 1992 the prosecution, pursuant to section 433 of the 1986 Act brought evidence of answers given by him under compulsion in his bankruptcy proceedings and the trial judge ruled that these answers were not rendered inadmissible by virtue of section 31 of the Theft Act 1968 but were admissible under section 433. The Court of Appeal  QB 244 upheld the judge's ruling on 12 May 1992.
3. On 27 April 1998 the Criminal Cases Review Commission ("the CCRC") referred the respondent's conviction on the counts of obtaining property by deception to the Court of Appeal (Criminal Division) on the basis that there was a real possibility that the court would find the convictions on those counts unsafe in the light of the decision in R v Preddy  AC 815. On 30 June 2000 the Commission also referred the convictions on the counts under the 1986 Act to the Court of Appeal on the ground that subsequent to the decision 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 there was a real possibility that the court would find the admission of the respondent's testimony obtained under compulsion to have been in breach of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and that the convictions which resulted from the trial were therefore unsafe.
4. The Court of Appeal  3 WLR 751, 761 in the light of what had been said in R v Director of Public Prosecution, Ex p Kebilene  2 AC 326 ruled that:
a conclusion which they reached with no enthusiasm whatever.
5. They accordingly held that the convictions could not be regarded as safe because of the inadmissibility of the answers. The court certified the following question:
6. The Crown has now appealed in the light of the decision in the House in R v Lambert  3 WLR 206 by a majority (Lord Steyn dissenting) on the basis that the appellant could not rely on the provisions of Schedule 1 to the 1998 Act in a national court in respect of a conviction before the 1998 Act came into force and in particular could not rely on the 1998 Act to challenge the judge's direction to the jury. See my opinion, at pp 211, 212, paras 14 and 18; Lord Hope of Craighead, at p 245, para 116:
7. There are really three issues. The first is whether the majority in Lambert were wrong in their decision of 5 July 2001 as to whether criminal convictions, unimpeachable when made, can now be reconsidered since the passing of the 1998 Act. The second is whether in any event Lambert can be distinguished, since what is involved here is the act of the prosecution in seeking to put in and putting in the evidence, rather than that of the judge and the Court of Appeal in ruling that it was admissible. The third is whether in any event the court should in accordance with its usual practice follow a recent decision of the House when the point was clearly in issue to be decided.
8. I am not persuaded that the decision of the House in R v Lambert was wrong. Briefly and without going into the detailed arguments which are set out in Lambert it seems to me that the combined effect of sections 22(4), 7(6) and 7(1)(b) is that for the purposes of deciding retrospectivity, a distinction is drawn between "proceedings brought by or at the instigation of a public authority" (the language used in both sections 22(4) and section 7(6)) and an appeal even though in ordinary parlance an appeal would be considered as part of legal proceedings. If Parliament had intended to allow convictions valid when made before the 1998 Act came into force to be reopened on the basis of rights conferred by the 1998 Act when that came into force, it would have said so clearly and used language more clear and direct in this context than that in section 22(4). Nor do I consider that the filter provided by the Commission's role in looking at old cases, nor the opportunity for the court to control the flow of late applications, requires or indicates the opposite interpretation.
9. Nor do I think that Lambert can be distinguished in any of the ways advanced in argument but in particular by the distinction which is sought to be drawn between acts of the judiciary and acts of the prosecutor. That is not only artificial in a case like the present but also likely to lead to infinite arguments as to the application of the distinction. Nor do I see any valid distinction between acts whether of the court or of the prosecutor which are mandatory and those which are discretionary.
10. I would however allow this appeal on the ground that the issue was resolved in Lambert after detailed argument. In that case unlike in Kebilene it was the central issue in the decision and it was a decision deliberately come to. As Lord Steyn has written in his speech we are dealing "only with a transitional provision on which the House has very recently given a clear-cut decision" and I do not think it right because there is one change in the composition of the Appellate Committee, and despite the skilled arguments on behalf of the intervenors, for the House to depart from the decision in Lambert.
11. I would therefore follow that decision in relation to this point.
12. I would accordingly allow the appeal from the decision of the Court of Appeal on this issue and, since the reference is to be treated as an appeal pursuant to section 9(2) of the Criminal Appeal Act 1995, I would dismiss the appeal of the respondent against his conviction.
LORD LLOYD OF BERWICK
13. To what extent can a person rely on a breach of his Convention rights in respect of an act which took place before the relevant provisions of the Human Rights Act 1998 came into force? The answer depends on the inter-relation of sections 6(1), 6(2), 7(1), 7(6) and 22(4) of the Act. For convenience I set them out:
7(1) A person who claims that a public authority has acted . . . in a way which is made unlawful by section 6(1) may -
14. The very same question was considered and answered by the House in R v Lambert  3 WLR 206. The Appellate Committee on that occasion consisted of the same five members of your Lordships' House, save that I have taken the place of Lord Clyde. In the ordinary way, the only question for decision would be whether the present case can be distinguished on the facts. There can be no doubt what R v Lambert actually decided. It was that the Human Rights Act is retrospective in respect of proceedings brought by or at the instigation of a public authority, but not in respect of appeals in those proceedings. This distinction was founded on the language of section 7(6) of the Act, which was held by the majority to draw a contrast between (a) proceedings brought by or at the instigation of a public authority and (b) an appeal against the decision of a court or tribunal. The distinction could, it was said, be justified on the policy ground that convictions prior to the coming into force of the Act should not be disturbed.
15. I confess that from the start of the hearing in the present appeal, I have had grave doubts whether the majority decision in Lambert could be supported. Had I been a party to the hearing in Lambert, I would have found myself in the embarrassing position of not agreeing with anyone, even though three different views were expressed. I should not have been able to agree with the majority, since to my mind the language of section 7(6) is not sufficiently clear to exclude by implication appeals in proceedings brought by or at the instigation of a public authority from the retrospective operation of section 22(4). I should not have been able to agree with Lord Steyn, because on his reading of section 6(1), section 22(4) would be deprived of all effect. I should have agreed with almost all of Lord Hope of Craighead's reasoning, but not with the last step in which he drew a distinction between the act of a court and the act of the prosecuting authority, and pointed out that the court is not a party to any proceedings, and is not therefore a public authority by or at the instigation of which proceedings are brought.
16. I might have held that it was unnecessary to decide the retrospective question in Lambert because the act of the judge in summing up on the burden of proof was not in any event unlawful within the meaning of section 6(1) of the Act, since he could not have "acted differently" within the meaning of section 6(2)(a). He was compelled to sum up as he did by virtue of the provisions of section 5(3) and 28 of the Misuse of Drugs Act 1971. I say I might have so decided. But I doubt whether I would, since the point was never argued on behalf of the Crown.
17. None of these considerations would have been worth mentioning if your Lordships were all of the view (i) that the principle stated in Lambert is binding on the House and (ii) that the facts are indistinguishable. But unfortunately two of your Lordships have given further reasons for supporting the decision in Lambert, and two of your Lordships have held that the reasoning in Lambert is erroneous. In those circumstances it would not have been right for me to sit on the fence. I must express a view on the merits. We have heard full argument on the point, perhaps fuller than the argument in Lambert. At the end of the argument I was even more convinced than I was at the beginning that the decision in Lambert is erroneous, and if it be necessary to say so, plainly erroneous. My reasons are the same as those set out at length in the speech of Lord Hope, which I would respectfully adopt, and more shortly in the speech of Lord Steyn. It does not matter that the actual decision in Lambert could have been supported on some other ground. If the reasoning in Lambert covers the facts of the present case, then we are bound to follow it, whatever our own views may be, unless we are going to apply the Practice Statement (Judicial Precedent)  1 WLR 1234. This seems to me to be the point of major importance in the case.
18. Lord Hope is of the view that we can depart from Lambert on the ground that we are here in a developing field of jurisprudence, and therefore the sooner any mistakes are corrected the better. Moreover, the decision in Lambert was itself inconsistent with a previous majority decision of the House of Lords in R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, to which Lord Slynn of Hadley, Lord Steyn and Lord Hope were all party, and which was given as recently as October 1999 less than two years before Lambert. In the Divisional Court in Kebilene Lord Bingham of Cornhill CJ took it for granted that a defendant would be entitled to rely on section 22(4) at the hearing of an appeal against his conviction: see p 341. Laws LJ was of the same view, at p 352. In R v Benjafield  3 WLR 75, 92, para 51 Lord Woolf MR said that where the original proceedings are brought by a public authority, an appeal is part of those proceedings to which section 22(4) applies. I respectfully agree with Lord Hope that these are all very weighty considerations. They cannot be brushed aside. But they lead me to a different conclusion.
19. In my opinion the only satisfactory way of resolving the present conflict of judicial opinion at the highest level would be to require the present appeal to be reargued before a panel of seven Law Lords. That is the traditional way in which problems of this kind are dealt with. In addition to the unsatisfactory features to which Lord Hope has drawn attention, I am especially concerned that the decision in the present case will affect other cases in the pipeline, and in particular the so called "Guinness Appellants", whose appeals are currently pending in the Court of Appeal. Justice to them requires that the present appeal be reheard, and the conflict finally resolved. But it seems that a rehearing before a panel of seven Law Lords cannot be arranged in time. So the conflict remains unresolved, and the only question is whether, as a panel of five, we should depart from the decision in Lambert. I am quite clear that we should not.
20. In Lewis v Attorney General of Jamaica  2 AC 50, an appeal to the Privy Council from the Court of Appeal of Jamaica, the Board took a different view on three questions which had been considered and answered in three recent decisions of the Board. In a dissenting judgment, Lord Hoffmann drew attention to the evils which would follow if the power to overrule previous decisions of the Privy Council were exercised too readily. It is worth quoting again two passages which Lord Hoffmann quoted from recent decisions of the Supreme Court of the United States. In Planned Parenthood of Southeastern Pennsylvania v Casey (1992) 505 US 833, O'Connor, Kennedy and Souter JJ, speaking for the court, said, at p 854:
In Mitchell v W T Grant Co (1974) 416 US 600, 636, Stewart J said:
Lord Hoffmann  2 AC 50, 90 went on to point out that the observations of Stewart J apply with even greater force in our own jurisdiction, where the Privy Council and the House of Lords customarily sit in panels of five, and not in banc.
21. I find that I share Lord Hoffmann's concern. The reasons given by Lord Hope for departing from Lambert justify, and justify in full, a rehearing of the present appeal before a panel of seven Law Lords. That is the course which I would advocate. But those reasons fall short of the sort of compelling considerations necessary to justify your Lordships departing from so recent a decision. The reasoning in Lambert represents a possible view. Of that there can be no doubt. It has not been shown to be unworkable. In my view it should be followed. If we were to depart from Lambert today, who is to say that a differently constituted Appellate Committee, presented with fresh arguments, might not depart from our decision tomorrow?
22. There remains the question whether the present case can be distinguished from Lambert on the facts. There are, of course, factual differences. In the present case we are concerned with the act of the prosecuting authority, whereas in Lambert we were concerned with the act of the trial judge. There is much to be said for the argument put forward on behalf of the interveners that whereas the judge in Lambert was compelled by primary legislation to act as he did, the prosecuting authority in the present case had a discretion whether to introduce the evidence obtained in accordance with section 433 of the Insolvency Act 1986. I am not at present persuaded that the discretionary act of the prosecution in introducing the challenged evidence is saved from being unlawful by the provisions of section 6(2)(b) in the way that the mandatory obligation of the judge in Lambert might have been saved by the provisions of section 6(2)(a), if the point had been taken. In any event it would not be satisfactory to decide the point without fuller argument; and even if we were so to decide it would not help the respondent. It is the reasoning in Lambert which binds, not the bare decision.
23. There is nothing in the suggested distinction that this is not an ordinary appeal, but proceedings brought by or at the instigation of the Criminal Cases Review Commission.
24. For the above reasons, I consider that the reasoning in Lambert prohibits the respondent from relying on the retrospective effect of section 22(4) of the Act. Accordingly, I would allow the appeal.
25. The question is whether the House should depart from the decision in R v Lambert  3 WLR 206, which was announced in July this year.
26. In Lambert the House by a majority held that section 22(4) of the Human Rights Act 1998, read with section 7(6), draws a distinction between criminal trials and appeals, and does not permit a defendant in proceedings brought by or at the instigation of a public authority to rely on convention rights after 2 October 2000 where the trial took place before that date but the appeal after that date. In the light of the arguments now before the House I am satisfied that the majority in Lambert were mistaken. Three points stand out. First, the word "proceedings" cover both trials and appeals. Section 7(6) does not require a different approach. Indeed section 7(6)(a) and (b) are not mutually exclusive eg an appeal to the Divisional Court on a case stated by the Crown falls under both. Secondly, the rationale of section 22(4) was not appreciated in Lambert. We now know that "proceedings brought by or at the instigation of a public authority" in section 22(4) were singled out for special treatment in recognition of the United Kingdom's international obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms from the date of ratification by the United Kingdom in 1951 or the date of conferment of the right of petition in 1966. This rationale does not support the artificial distinction between criminal trials and appeals. Thirdly, in Lambert the majority was strongly influenced by the view that the contrary interpretation would lead to the challenging of old convictions. It is now clear that there is a perfectly effective filter by way of the discretion of the Court of Appeal to refuse to extend time for leave to appeal in such cases. Moreover, a similar filter is applicable to the decision of the Criminal Cases Review Commission. For these briefly expressed reasons I am of the opinion that the holding of the majority in Lambert was mistaken.
27. It does not, however, follow that we must now depart from that decision. In R v Knuller (Publishing, Printing and Promotions Ltd)  AC 435 Lord Reid faced a similar problem. He observed at p 455B-D):
Taking into account that we are not dealing with the entire future of the Human Rights Act 1998, but only with a transitional provision on which the House has very recently given a clear-cut decision, I am persuaded that it would be wrong now to depart from the ratio decidendi of Lambert. I reject the principal and alternative submissions advanced on behalf of the respondent.
28. For these reasons I would also make the order which Lord Slynn of Hadley proposes.
LORD HOPE OF CRAIGHEAD
29. When I first circulated a draft judgment in this case I hoped that it might have been possible for your Lordships to agree that we should depart from the view of the majority in R v Lambert  3 WLR 206. My noble and learned friend, Lord Lloyd of Berwick has suggested as an alternative that the question whether it should be departed from should be referred to a panel of seven Law Lords. It is now clear that there is no majority in favour of either of these two solutions.
30. Much of what I have written about at such length may now seem to be pointless, as a clear majority has emerged in this case in favour of adhering to the majority view in R v Lambert. It has occurred to me that I should then, out of loyalty to the view of the majority, simply withdraw my draft judgment. On balance I have decided that I ought to adhere to it, in case it may still be necessary in some future case to consider the question whether the benefit of retrospectivity under section 22(4) of the Human Rights Act 1998 is available in an appeal. What follows, with only a few changes, is my judgment as originally circulated.
31. The first question raised by this appeal is whether, following a reference to the Court of Appeal (Criminal Division) by the Criminal Cases Review Commission, 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 is entitled, after the coming into force of these provisions, to rely as a ground of appeal against his conviction on an alleged breach of his Convention rights at the trial by the prosecutor. Unless it was open to the respondent in his appeal to rely on those provisions retrospectively, the appeal must be allowed. It would plainly not have been open to the Court of Appeal  3 WLR 751 to apply section 22(4) of the 1998 Act and quash the convictions. But if the question is answered in the affirmative, it will be necessary to consider a further question which was dealt with for the most part in written submissions put in after the end of the oral argument. This is whether the prosecutor's act in relying at the trial under section 433 of the Insolvency Act 1986 on compulsory questioning evidence was an unlawful act for the purposes of section 7(1)(b). If it was not, that too would be a ground for allowing the appeal.