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The noble and learned Lord said: My Lords, this is a group of minor technical and drafting amendments to Part 3. In the main they are consequential amendments to what are now Clauses 42 and 43 of, and Schedule 8 to, the Bill as a result of the removal in Committee of the then Clauses 42 and 43, which contained a change to the test applied by the Court of Appeal in relation to the safety of a conviction. I beg to move.
On Question, amendment agreed to.
Lord Lloyd of Berwick moved Amendment No. 70A:
“(1C) In determining appeals referred to it by the Criminal Cases Review Commission on the ground that there has been a development in the law since the date of conviction the Court of Appeal may dismiss the appeal if it would have refused leave to appeal out of time.”
The noble and learned Lord said: Clause 42 is intended to deal with a very narrow range of cases where a conviction is referred to the Court of Appeal by the Criminal Cases Review Commission on the ground that there has been a change of law since the conviction.
The existing practice of the Court of Appeal is clear in cases in general. When an appeal is based on a change in law, the appellant will almost always need leave to appeal out of time. That is the nature of such cases; they often do not arise until long after the conviction. The court will almost always refuse leave to appeal in those cases unless the appeal is itself extremely meritorious, so the conviction is upheld. That is the solution in all ordinary cases based on a change of law and it is a solution that works very well. But it does not work when the appeal is referred to the Court of Appeal by the CCRC. In such cases the appellant does not need leave to appeal, so the filter that is currently operated by the Court of Appeal is ineffective. Clause 42 is intended to deal with that very narrow range of cases.
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The trouble with Clause 42, which emerged clearly in Committee, is that it is almost impossibly wide as it stands. It would cause great difficulty to the practising Bar—a point made well by the noble Lord, Lord Thomas of Gresford—and it would cause the academic lawyers to have a collective heart attack. The Government now accept this, and as a result discussions have taken place between what are called interested parties, including Professor Zellick, the current chairman of the Criminal Cases Review Commission.
It was the judiciary that first suggested that the problem, such as it is—and I emphasise that it is a very small problem—should be subject to legislation. For that reason the noble and learned Lord, Lord Davidson, whom I am glad to see in his place, suggested that I have a word with the president of the Queen’s Bench Division, which indeed I did. He and I agreed on a form of words which in my view—and, much more importantly, in his view—meets the particular difficulty that gave rise to this clause and, hence, to this amendment. The amendment would solve the problem in a neat and straightforward way and I had hoped that it would be accepted as it stands.
The Government now say, believe it or not, that my amendment is too wide. They have gone from one extreme to the other. The original proposal was impossibly wide and now they say that my very narrow amendment is too wide. They say that it might cause difficulty—note “might”—when a conviction is referred to the Court of Appeal by the CCRC on two or more grounds, only one of which is based on a change of law. They accept that that difficulty, such as it is, is theoretical; but despite a flurry of e-mails between the noble and learned Lord and myself in the past few days, I cannot for the life of me see what the difficulty is. I very much look forward to hearing from him. In the mean time, I beg to move.
Lord Kingsland: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, should not be surprised by the Government’s change of tack on this issue. He should have learnt by now that even if the Government accept the wisdom and substance of an amendment tabled by a member of the Opposition or the Cross Benches, they find it difficult to accept the exact wording. It is in that context, and no other, that one should see what has emerged from the government Benches.
As far as the noble and learned Lord’s amendment is concerned, who am I to question something crafted by such a distinguished couple as the noble and learned Lord on one hand and the president of the Queen’s Bench on the other? I wait with interest to hear the Government’s reasons for wanting something a little more tautly drawn.
Lord Campbell of Alloway: My Lords, I intervene briefly because I cannot look at this from the point of view of an academic lawyer or the problems that have arisen in the past. I look at it as it stands, or indeed from the point of view of the Appellate Committee of your Lordships’ House—I have only had the privilege
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Baroness Butler-Sloss: My Lords, I have discussed this with the noble and learned Lord, Lord Lloyd of Berwick, and the president of the Queen’s Bench Division. This is a very sensible amendment and I support it.
The Earl of Onslow: My Lords, it beggars description that when the noble and learned Lord, Lord Lloyd of Berwick—who, in the immortal words of Bertie Wooster on Jeeves, was certainly fed on fish from an early age—and the president of the Queen’s Bench come up with a wording to satisfy a small and technical point, the Government then have to go away and try to do it better. If they have been given a Rolls-Royce, why can they not sit in it and drive it, as opposed to fiddling with it, trying to make it a four-wheel drive vehicle?
Lord Thomas of Gresford: My Lords, if by contemporary standards of justice there has been a miscarriage of justice in the past, it is surely for the Court of Appeal to right that injustice. The purpose of the amendment of the noble and learned Lord, Lord Lloyd of Berwick, is to ensure that that is done. We on these Benches support it entirely.
Lord Davidson of Glen Clova: My Lords, with that introduction, perhaps I should have had some more sardines for my breakfast this morning. Clause 42 amends Section 2 of the Criminal Appeal Act 1968 to give the Court of Appeal a discretion to disregard developments in the law since the date of conviction. The noble and learned Lord, Lord Lloyd of Berwick, is concerned that the clause is too wide in its effect. We understand his concern to be that it would allow the Court of Appeal to disregard the law as it is now in any case where it was considering whether a conviction was unsafe, in whatever manner the case reached the court, and whether a development in the law was one of the grounds of appeal. The matter has been discussed with the noble and learned Lord, and we have been exploring the possibility of reducing the ambit of the clause to make clear that it applies only to cases referred to the Court of Appeal by the Criminal Cases Review Commission.
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4.45 pm
We are broadly sympathetic to the objectives of the noble and learned Lord’s Amendments Nos. 70A, 71A and 72A. In addition to limiting the scope of the clause to referrals by the Criminal Cases Review Commission, they also limit the court’s power to dismiss the appeal to cases in which it would have refused leave out of time. We are not sure whether the latter limitation is essential, but it does have the merit of signalling—at least to the alert reader—that cases referred by the commission are in fact to be dealt with in the same way as other cases.
However, with the greatest respect to the noble and learned Lord, we have some concerns about the drafting of the provision. The difficulty is that it would apply whenever a case is referred by the CCRC on the grounds that there has been a change in the law, even if it is also referred by the CCRC on other grounds. In such a case, it would seem to give the court a new power to dismiss any of the grounds of appeal, even grounds that have nothing to do with the change of law and even if the appeal might succeed on the merits. No doubt we can rely on the Court of Appeal not to use the power in an unreasonable manner, but it seems preferable that the power to dismiss should explicitly be confined to appeals which turn on a change in the law rather than the wider category of appeals which are referred on a change in the law.
I entirely agree that it might seem churlish to look at the Rolls-Royce drafting and turn it aside, but there is simply a small technical point on which we would take issue with the proposal as it stands. We would perhaps have thought that a repenting sinner would receive a greater welcome than the noble Lord, Lord Kingsland, has extended. I say to the noble Lord, Lord Campbell, that the approach adopted here on changes in the law is precisely to deal with the concern that one would be moving into a difficult area where one might not arrive at the just outcome. It was simply for that reason that we have been persuaded by the arguments deployed.
A second technical difficulty is that when the court is considering an out-of-time appeal it has two preliminary decisions to make: first, whether to extend time; and, secondly, whether to grant leave to appeal. We do not think that it is sufficient for the clause to refer to,
which, with respect, may conflate these two issues.
For those reasons, we do not think that the noble and learned Lord’s amendments quite do the trick. We consider that the clause should operate where, first, the case has been referred by the Criminal Cases Review Commission; and, secondly, where the fact that there has been a development in the law since the date of conviction is the only basis for allowing the appeal. We would be content also to limit the power to dismiss the appeal to cases in which the court would have refused an extension of time. A clause amended in this way would achieve our objective, which is to secure that the Court of Appeal should no longer find itself compelled to quash the conviction in the relevant cases. If that outcome would be satisfactory to the noble and learned Lord, Lord Lloyd, and to those
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Lord Lloyd of Berwick: My Lords, first, a possible answer for the noble Lord, Lord Campbell of Alloway, is that the amendment would certainly in no way inhibit the judges of the Court of Appeal doing justice in a particular case—it would, in fact, enable them to do it more expeditiously than would a possible amendment which is being floated by the Government.
On the Minister’s reply, I am of course glad that the Government now accept that the existing clause is far too wide. He suggests that my amendment is still too wide, because it would enable the Court of Appeal to dismiss an appeal that has merit and which it would not otherwise dismiss but allow because it is conjoined with another ground of appeal that happens to be based on change of law. I do not understand that. It is not just a question that the Court of Appeal would never in its life do such a silly thing but it is not something that flows from the language of my amendment as I see it.
Having said that, I will try to attempt the thing that the noble Lord, Lord Kingsland, says can never be done: to persuade the Government that someone else’s wording is better than theirs. In that hope, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath moved Amendment No. 71:
Clause 42, page 33, line 32, leave out from “after” to “In” in line 33 and insert “subsection (1) insert—
On Question, amendment agreed to.
[Amendment No. 71A not moved.]
Lord Hunt of Kings Heath moved Amendment No. 72:
Clause 42, page 33, line 37, leave out from “after” to “In” in line 39 and insert “subsection (1) insert—
On Question, amendment agreed to.
[Amendments Nos. 72A and 73 not moved.]
Clause 43 [Power of Court of Appeal to disregard developments in the law: Northern Ireland]:
Lord Hunt of Kings Heath moved Amendments Nos. 74 to 76:
Clause 43, page 34, line 6, leave out from “after” to “In” in line 8 and insert “subsection (1) insert—
Clause 43, page 34, line 13, leave out from beginning to “In” in line 14 and insert “subsection (2) insert—
Clause 43, page 34, line 18, leave out from “after” to “In” in line 20 and insert “subsection (3) insert—
On Question, amendments agreed to.
Schedule 8 [Appeals in criminal cases]:
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Lord Hunt of Kings Heath moved Amendment No. 77A:
Schedule 8, page 192, line 9, leave out from “substitute” to “and” in line 10 and insert ““(taken as a whole) for all the related offences of which he remains convicted”,”
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendments Nos. 78 and 79:
“Supplementary”.On Question, amendments agreed to.
Clause 48 [Alternatives to prosecution for offenders under 18]:
Lord Hunt of Kings Heath moved Amendment No. 79A:
Clause 48, page 35, line 34, leave out “offenders aged 16 and 17” and insert “children and young persons”
The noble Lord said: My Lords, we come to youth conditional cautions. During Committee stage I indicated that we were carefully considering the issue of the current restriction on the use of youth conditional cautions to 16 and 17 year-olds. We have now had the opportunity to reflect on the arguments made by noble Lords. We have been persuaded by them and we have therefore tabled government amendments designed to remove the age restriction, so that this out-of-court disposal will be available to all young people. I hope that the House will welcome this move. I also hope that the House will acknowledge that the Government’s approach to a staged implementation is the most appropriate course to take. Initially, we intend to introduce youth conditional cautions for 16 to 17 year-olds. There is no question that applying youth conditional cautions for 10 to 15 year-olds will give rise to a different set of challenges, so we wish to learn from the application of this new out-of-court disposal to the higher age range and consult widely before extending the Bill’s provisions to the 10 to 15 age group.
I would just add that, in accordance with the recommendation of the Delegated Powers and Regulatory Reform Committee, we are providing in the amendments grouped with this amendment that the first time a code of practice for youth conditional cautions is made. It would be subject to the affirmative, rather than the negative, resolution procedure. I hope that the House will support this group of amendments. I beg to move.
Baroness Falkner of Margravine: My Lords, there has been some confusion about the case despite comments from the Benches on our left. I will, however, rise to the occasion. I was slightly distracted by the incredible pace of debate this afternoon.
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We have received the letter from the Minister, the noble Lord, Lord Hunt of Kings Heath, and are grateful that the Government have taken on board the philosophy behind what we were trying to do, if not the absolute wording of our amendments. On that basis, we are grateful to the Government for having come this far because, eventually, the objective that we all wanted to achieve has been covered—more or less.
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendment No. 79B:
“(2) The Secretary of State may by order amend the Crime and Disorder Act 1998 (c. 37), as amended by Schedule 9, so as to vary the provision made by it for the giving of youth conditional cautions to children and young persons under the age of 16 (including doing so by adding or omitting any provision).”
On Question, amendment agreed to.
Schedule 9 [Alternatives to prosecution for persons under 18]:
Lord Hunt of Kings Heath moved Amendments Nos. 79C to 79E:
Schedule 9, page 199, line 29, leave out “young person aged 16 or 17” and insert “child or young person”
On Question, amendments agreed to.
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