Criminal Justice and Immigration Bill

As I was about to say—a little prematurely, for which I apologise—I do not propose to withdraw this clause. Perhaps I can put it in context. Clause 44 amends Section 2 of the Criminal Appeal Act 1968 to give the Court of Appeal discretion to disregard developments in the law since the date of conviction. In their response to the consultation on the Bill, members of the senior judiciary commented on the implications of the existing law, which requires the court to apply the interpretation of the common law applicable at the time of the appeal rather than the interpretation that was applicable at the time of the conviction. The point was also raised in a recent Court of Appeal judgment. Where the person convicted applies for leave to appeal out of time, and his appeal rests solely on a development in the common law since his conviction, the court’s usual practice is to refuse leave. It is in some cases referred by the Criminal Cases Review Commission that the real problem arises because there is no requirement for leave in such cases. The commission considers that it is obliged to refer a case to the Court of Appeal where, if the case were referred, there would be a real possibility that the court would quash the conviction on the strength of a subsequent change of law. That is to a degree a self-fulfilling prophecy, as once such a case is referred the court may find itself obliged to quash the conviction, applying as it must do the common law as it stands at the time of the appeal. This can happen in cases where the appellant was properly convicted under the law as it was when he was tried, sometimes a long time ago—30 years in a recent instance. The Government agree—and the Criminal Cases Review Commission does not disagree—that this is an unsatisfactory state of affairs. Our preferred solution is to give the Court of Appeal discretion to disregard developments in the law since the date of conviction. Let me respond to the noble and learned Lord, Lord Lloyd, and the noble Lords, Lord Kingsland and Lord Thomas, on whether the case of Cottrell and Fletcher suggests that Clause 44 is unnecessary. As one understands Cottrell and Fletcher, the observations of Sir Igor Judge about the future practice of the CCRC were obiter and there can be no guarantee that the CCRC will consider itself to be bound by them. Sir Igor Judge said in his judgment that the issue merited the attention of Parliament. We agree and, therefore, I commend Clauses 44 and 45.