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Criminal Justice and Immigration Bill

moved Amendment No. 70A: 70A: Clause 42, page 33, leave out lines 27 to 30 and insert— ““(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. 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.