Criminal Justice and Immigration Bill

This clause is a technical and, as I hope to show, unnecessary amendment to the powers of the Court of Appeal. The Explanatory Notes, at page 54, show that the clause is intended to deal with a narrow range of cases which have been referred to the Court of Appeal by the Criminal Cases Review Commission on the ground that there has been a change in the law since a conviction. The existing practice of the Court of Appeal in these cases is clear and unchallenged. When an appellant seeks leave to appeal a conviction out of time, as will almost always be the case in change-of-law cases, the court will not extend the time on the ground of change of law. Therefore, in such cases the conviction is inevitably upheld. That is the current practice and it does not need to be confirmed by statute. The difficulty, such as it is, has arisen where an appeal is referred to the Court of Appeal by the Criminal Cases Review Commission. In such cases, the appellant does not need leave to appeal and, therefore, does not have to apply for an extension of time so the filter, operated successfully by the Court of Appeal in other change-of-law cases, is bypassed. Such cases would then have to be dealt with by the Court of Appeal on the basis of the current law at the time of hearing the appeal. That difficulty looked as though it might become acute as a result of a decision of the Divisional Court in the case of R v CCRC—Criminal Appeal Reports, 2007—in which it was held that the CCRC was not obliged to have regard to the practice of the Court of Appeal, such as I have described, in refusing to extend time in change-of-law cases. That case, happily, has been effectively overruled by the Court of Appeal in a very recent decision in Cottrell and Fletcher. The effect of that recent and authoritative decision is or should be that the CCRC will, in future, have regard to the existing practice of the Court of Appeal in change-of-law cases and will not refer such cases where the Court of Appeal would not have extended the time. For those reasons, which I hope I have explained, Clause 44 will not be necessary. The problem has been solved, as such problems should be solved, by action on the part of the courts themselves and not by statutory intervention. We had some experience yesterday of what can go wrong when Parliament intervenes with the ordinary processes of the courts. It often produces very unexpected results. The difficulty with Clause 44 as it stands—this is an important point—is that it goes far wider than the problem that it seeks to solve. It treads on very difficult ground—I would almost say holy ground—and should not be put on the statute book without prior consideration by the Law Commission. I urge the Government, having withdrawn Clauses 42 and 43, to consider withdrawing Clause 44 also, if only to save time. It is no longer an urgent problem; indeed it is not really a problem at all.