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Lord Hunt of Wirral: I welcome these new clauses. If I recall correctly, it was not only the judiciary that expressed some concern. Sir Robin Auld—the Minister nods—also criticised the inability of the Court of Appeal to direct the commission to investigate and report to it on any matter in an application for leave to appeal, as distinct from an appeal itself. I recall the noble Baroness explaining in a letter that there may, indeed, be instances where the court might require the assistance of the commission at the application stage and, without it, it might even be forced or obliged to deny leave. Therefore, the amendments are welcome and I support them from these Benches.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 232AB:



"EXTENSION OF INVESTIGATIONS BY CRIMINAL CASES REVIEW COMMISSION IN NORTHERN IRELAND
(1) Section 25A of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (power to order investigations by Criminal Cases Review Commission) is amended as follows.
(2) In subsection (1) after "conviction" there is inserted "or an application for leave to appeal against conviction,".
(3) In paragraph (a) of that subsection—
(a) at the beginning there is inserted "in the case of an appeal,", and
(b) for "case", in both places where it occurs, there is substituted "appeal".
(4) After paragraph (a) of that subsection there is inserted—
"(aa) in the case of an application for leave to appeal, the matter is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined;".
(5) After that subsection there is inserted—
"(1A) A direction under subsection (1) above may not be given by a single judge, notwithstanding that, in the case of an application for leave to appeal, the application may be determined by a single judge as provided for by section 45 below."
(6) After subsection (4) there is inserted—
"(5) In this section "respondent" includes a person who will be a respondent if leave to appeal is granted.""

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On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 232AC:


    After Clause 289, insert the following new clause—


"APPEALS FOLLOWING REFERENCE BY CRIMINAL CASES REVIEW COMMISSION
(1) Section 14 of the Criminal Appeal Act 1995 (c. 35) (further provision about references by Criminal Cases Review Commission) is amended as follows.
(2) After subsection (4) there is inserted—
"(4A) Subject to subsection (4B), where a reference under section 9 or 10 is treated as an appeal against any conviction, verdict, finding or sentence, the appeal may not be on any ground which is not related to any reason given by the Commission for making the reference.
(4B) The Court of Appeal may give leave for an appeal mentioned in subsection (4A) to be on a ground relating to the conviction, verdict, finding or sentence which is not related to any reason given by the Commission for making the reference."
(3) In subsection (5) for "any of sections 9 to" there is substituted "section 11 or"."

The noble Baroness said: These amendments concern appellants referred to the Court of Appeal by the Criminal Cases Review Commission. At present, an appellant of this kind can add additional grounds of appeal, whether or not they are related to any reason given by the commission for making the reference. An unlimited number of grounds may be added in this way.

During the passage of the Courts Bill earlier this year we discussed this issue—I see that the noble Lord, Lord Hunt, is smiling and nodding. I was unpersuaded then but I know that I am about to give him considerable satisfaction. I see him beaming that satisfaction at me across the Dispatch Box. We were unable to agree the change on that occasion but have since had the opportunity to consider matters more thoroughly and are now persuaded of the merits of the change.

I am afraid that, not for the first time, the decisive factor is the evidence of the extent to which some appellants are abusing the present regime. Any time wasted by the Court of Appeal in considering manifestly unmeritorious grounds of appeal can serve only to delay other meritorious appeals that anxiously need a determination. I should stress that, in making the change, we are mindful of the special nature of appellants referred to the Court of Appeal by the CCRC. We are well aware that these are potential miscarriage-of-justice cases and would obviously not propose any change that might raise the possibility of a miscarriage of justice going uncorrected.

We are satisfied, however, that the proposals contain the necessary safeguards. We are not limiting appeals in these cases to grounds identified by the CCRC. Under the amendments, appellants will still be able to add further grounds, unrelated to the commission's reasons for making the reference, provided they have the leave of the Court of Appeal to do so. I beg to move.

Lord Hunt of Wirral: As I entered the Chamber, a noble Lord said to me that he hoped the noble

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Baroness would apologise to me. I have a warm recollection of our exchange. On that occasion, the noble Baroness criticised me for having gone on at too great a length in seeking to explain the amendment. Indeed, she said that I had entertained the House—here she used a very rude phrase—to an exhaustive exposition, which can be translated as my having been exceedingly boring.

However, I had only set out the view, expressed very clearly by the judiciary, that there was a need to move in this direction. Therefore, I do not look for an apology; I merely now look for the Government to accept that what we said from these Benches was correct, even though we may have done it at considerable length. I shall certainly not make the same mistake this time. I warmly support these clauses.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 232AD:


    After Clause 289, insert the following new clause—


"Power to substitute conviction of alternative offence on appeal in England and Wales
(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.
(2) In section 3 (power to substitute conviction of alternative offence) in subsection (1) after "an offence" there is inserted "to which he did not plead guilty".
(3) After section 3 there is inserted—
"3A POWER TO SUBSTITUTE CONVICTION OF ALTERNATIVE OFFENCE AFTER GUILTY PLEA
(1) This section applies on an appeal against conviction where—
(a) an appellant has been convicted of an offence to which he pleaded guilty,
(b) if he had not so pleaded, he could on the indictment have pleaded, or been found, guilty of some other offence, and
(c) it appears to the Court of Appeal that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of the other offence.
(2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the appellant's plea of guilty a plea of guilty of the other offence and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.""

The noble Baroness said: This is another amendment which has been designed to rectify a gap in the criminal appeals legislation. Where the Court of Appeal is hearing an appeal against conviction, after a finding by the jury where the appellant did not plead guilty, it has the power to substitute a conviction of an alternative offence if it is satisfied that the facts established by the jury's finding would also make up the alternative offence.

However, there is no equivalent power in the Criminal Appeal Act 1968 for the Court of Appeal to substitute an alternative conviction following a guilty plea. As I hope noble Lords will understand, an appeal against conviction after a guilty plea is rather unusual. It is perhaps for that reason that the situation is not covered in the legislation.

However, there have been two recent cases in which the gap has caused difficulty; namely, the cases of Horsman and Duggan, to which I referred in my letter

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to Her Majesty's loyal Opposition Front Bench anticipating these amendments. In both cases the court was dealing with a conviction following a guilty plea and in both cases the court might have substituted an alternative conviction had it had the power we are introducing here.

One might imagine that the power will be generally used under circumstances where the appellant consents to the substitution and, indeed, may even have requested it. However, the amendments allow the Court of Appeal the discretion to impose an alternative conviction on the same facts, even where an appellant does not consent. There may be the occasional case, therefore, for example, where an appellant seeks to withdraw a guilty plea on conviction but the court considered that there is no good reason for him to do so, especially as the appellant will have already admitted to the relevant facts.

That is subject to safeguards, as any conviction imposed in the exercise of this discretion will of course have to accord with the court's obligations under the Human Rights Act. Moreover, I hope that it will be noted that this is only a power to substitute in relation to an equal or less than severe sentence.

Finally, in cases where the court is unsure of the facts, which have been admitted, it will be able to order a re-trial. The amendments are designed to give the Court of Appeal as much flexibility as possible and will fill an unjustifiable gap in the law identified by the court. I beg to move.

On Question, amendment agreed to.


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