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Criminal Justice and Immigration Bill

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. 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, "““leave to appeal out of time””," 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 other noble Lords who have put their name to the amendments in this group, the Government will aim to table a suitable amendment on Third Reading.