R v Kansal (Yash Pal) (Change of Law) (No 2)

On 18 February 1992 the respondent was convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was required to deliver up to the Official Receiver or his trustee, contrary to section 354(2); and (b) he failed without reasonable excuse to account for the loss of a substantial part of his property or to give a satisfactory explanation of the manner of the loss, contrary to section 354(3). Large sums were involved–he obtained from the Halifax Building Society £150,000 and £116,250 on a false representation as to his income and that he was not bankrupt and that he did not have any judgment or proceedings for debt outstanding. Prior to these advances on 11 March 1998 a bankruptcy order was made against him. On 23 March 1988 his wife collected from his solicitor £104,000 in cash, part of the monies advanced by the Building Society, and took it in a bin liner to India.

At his trial in 1992 the prosecution, pursuant to section 433 of the 1986 Act brought evidence of answers given by him under compulsion in his bankruptcy proceedings and the trial judge ruled that these answers were not rendered inadmissible by virtue of section 31 of the Theft Act 1968 but were admissible under section 433. The Court of Appeal [1993] QB 244 upheld the judge's ruling on 12 May 1992.

On 27 April 1998 the Criminal Cases Review Commission ("the CCRC") referred the respondent's conviction on the counts of obtaining property by deception to the Court of Appeal (Criminal Division) on the basis that there was a real possibility that the court would find the convictions on those counts unsafe in the light of the decision in R v Preddy [1996] AC 815. On 30 June 2000 the Commission also referred the convictions on the counts under the 1986 Act to the Court of Appeal on the ground that subsequent to the decision of the European Court of Human Rights in Saunders v United Kingdom (1996) 23 EHRR 313 and the passing of the Human Rights Act 1998 that there was a real possibility that the court would find the admission of the respondent's testimony obtained under compulsion to have been in breach of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and that the convictions which resulted from the trial were therefore unsafe.

The Court of Appeal [2001] 3 WLR 751, 761 in the light of what had been said in R v Director of Public Prosecution, Ex p Kebilene [2000] 2 AC 326 ruled that:

"(i) The CCRC, subject to the proper exercise of the discretion conferred by section 9 of the Criminal Appeal Act, can refer to this court a conviction following a trial whenever it took place;

(ii) this court, once such a reference has been made, has no option, however old the case, but to declare the conviction unsafe if that is the result either of the admission of evidence obtained in breach of article 6 or of a change in the common law, which is deemed always to have been that which it is authoritatively declared to be, as, for example, by reason of R v Preddy",

a conclusion which they reached with no enthusiasm whatever.

They accordingly held that the convictions could not be regarded as safe because of the inadmissibility of the answers. The court certified the following question:

"Following a reference to the Court of Appeal (Criminal Division) by the Criminal Cases Review Commission, is a defendant whose trial took place before the coming into force of sections 6(1) and 7(1)(b) of the Human Rights Act 1998 entitled, after they come into force, to rely on an alleged breach of his Convention rights whenever the alleged breach took place?".

The Crown has now appealed in the light of the decision in the House in R v Lambert [2001] 3 WLR 206 by a majority (Lord Steyn dissenting) on the basis that the appellant could not rely on the provisions of Schedule 1 to the 1998 Act in a national court in respect of a conviction before the 1998 Act came into force and in particular could not rely on the 1998 Act to challenge the judge's direction to the jury. See my opinion, at pp 211, 212, paras 14 and 18; Lord Hope of Craighead, at p 245, para 116:

"I would therefore answer the question whether an accused whose trial took place before the coming into force of the 1998 Act is entitled to rely in an appeal after the coming into force of that Act on an alleged breach of his Convention rights by the trial court in the negative";

Lord Clyde, at p 253 para 140:

"In my view the intention is that section 22 (4) should not extend to the other kind of "legal proceedings" mentioned in section 7(6), namely an appeal. I am not persuaded that section 22(4) can avail the appellant";

Lord Hutton, at p 263, para 172:

"Section 7(6) provides: "In subsection (1)(b) 'legal proceedings' includes–(a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal". The subsection therefore distinguishes between "proceedings brought by or at the instigation of a public authority" and "an appeal against the decision of a court or tribunal". Accordingly when section 22(4) refers, in identical words to the words of section 7(6)(a), to "proceedings brought by or at the instigation of a public authority", the retrospective operation permitted by that subsection does not apply to an appeal against the decision of the Crown Court in this case"

There are really three issues. The first is whether the majority in Lambert were wrong in their decision of 5 July 2001 as to whether criminal convictions, unimpeachable when made, can now be reconsidered since the passing of the 1998 Act. The second is whether in any event Lambert can be distinguished, since what is involved here is the act of the prosecution in seeking to put in and putting in the evidence, rather than that of the judge and the Court of Appeal in ruling that it was admissible. The third is whether in any event the court should in accordance with its usual practice follow a recent decision of the House when the point was clearly in issue to be decided.

I am not persuaded that the decision of the House in R v Lambert was wrong. Briefly and without going into the detailed arguments which are set out in Lambert it seems to me that the combined effect of sections 22(4), 7(6) and 7(1)(b) is that for the purposes of deciding retrospectivity, a distinction is drawn between "proceedings brought by or at the instigation of a public authority" (the language used in both sections 22(4) and section 7(6)) and an appeal even though in ordinary parlance an appeal would be considered as part of legal proceedings. If Parliament had intended to allow convictions valid when made before the 1998 Act came into force to be reopened on the basis of rights conferred by the 1998 Act when that came into force, it would have said so clearly and used language more clear and direct in this context than that in section 22(4). Nor do I consider that the filter provided by the Commission's role in looking at old cases, nor the opportunity for the court to control the flow of late applications, requires or indicates the opposite interpretation.

Nor do I think that Lambert can be distinguished in any of the ways advanced in argument but in particular by the distinction which is sought to be drawn between acts of the judiciary and acts of the prosecutor. That is not only artificial in a case like the present but also likely to lead to infinite arguments as to the application of the distinction. Nor do I see any valid distinction between acts whether of the court or of the prosecutor which are mandatory and those which are discretionary.

I would however allow this appeal on the ground that the issue was resolved in Lambert after detailed argument. In that case unlike in Kebilene it was the central issue in the decision and it was a decision deliberately come to. As Lord Steyn has written in his speech we are dealing "only with a transitional provision on which the House has very recently given a clear-cut decision" and I do not think it right because there is one change in the composition of the Appellate Committee, and despite the skilled arguments on behalf of the intervenors, for the House to depart from the decision in Lambert.

I would therefore follow that decision in relation to this point.

I would accordingly allow the appeal from the decision of the Court of Appeal on this issue and, since the reference is to be treated as an appeal pursuant to section 9(2) of the Criminal Appeal Act 1995, I would dismiss the appeal of the respondent against his conviction.

To what extent can a person rely on a breach of his Convention rights in respect of an act which took place before the relevant provisions of the Human Rights Act 1998 came into force? The answer depends on the inter-relation of sections 6(1), 6(2), 7(1), 7(6) and 22(4) of the Act. For convenience I set them out:

"6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if -

(a)

as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) …

7(1) A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may -

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)

rely on the Convention right or rights concerned in...