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Criminal Justice and Immigration Bill

I am one of the signatories to opposing the Question that Clause 44 stand part of the Bill. I respectfully adopt the reasons given by the noble and learned Lord, Lord Lloyd of Berwick, as my reasons, too. I have one additional point to make on the substance of the government provision. That is in relation to Clause 45(2), which says, after the usual introduction: "““In determining for the purposes of subsection (1)(a) whether the conviction is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case, disregard any development in the law since the date of the conviction””." Like the noble and learned Lord, Lord Lloyd of Berwick, I hope that this clause will disappear from the Bill. But, in any event, it is vital that Clause 44(2) be amended, because the discretion here given to the Court of Appeal is far too wide; indeed, it is totally unconstrained. It is not difficult to imagine situations where opting for the law at the time of the conviction or the law at the time of the consideration by the court could mean quite substantial differences between the legal situations. Inspired, I think, by the suggestion of Professor Graham Zellick, I propose that that subsection ought to read: ““In determining … whether the verdict is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case””—here comes the addition—““and is satisfied that it would not give rise to a substantial injustice, disregard any development in the law since the date of the verdict””. That would ensure that a decision by the Court of Appeal could not manifestly undermine the position of the defendant.