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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Kansal, R v. [2001] UKHL 62 (29 November 2001)
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Cite as: [2002] 1 Cr App R 36, [2002] 2 AC 69, [2001] UKHL 62, [2002] HRLR 9, [2002] BPIR 370, [2001] 3 WLR 1562, [2002] 1 All ER 257, [2002] UKHRR 169, [2002] 1 Cr App Rep 36

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Kansal, R v. [2001] UKHL 62 (29th November, 2001)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Lloyd of Berwick Lord Steyn Lord Hope of Craighead Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

KANSAL

(RESPONDENT)

ON 29 NOVEMBER 2001

[2001] UKHL 62

LORD SLYNN

My Lords,

1. 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.

2. 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.

3. 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.

4. 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:

R v Preddy

a conclusion which they reached with no enthusiasm whatever.

5. 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:

6. 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:

section 7

section 22

section 7

7. 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.

8. 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.

9. 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.

10. 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.

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

12. 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.

LORD LLOYD OF BERWICK

My Lords,

13. 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:

(a)

section 6

(a)

this Act

(b)

(a)

(b)

14. The very same question was considered and answered by the House in R v Lambert [2001] 3 WLR 206. The Appellate Committee on that occasion consisted of the same five members of your Lordships' House, save that I have taken the place of Lord Clyde. In the ordinary way, the only question for decision would be whether the present case can be distinguished on the facts. There can be no doubt what R v Lambert actually decided. It was that the Human Rights Act is retrospective in respect of proceedings brought by or at the instigation of a public authority, but not in respect of appeals in those proceedings. This distinction was founded on the language of section 7(6) of the Act, which was held by the majority to draw a contrast between (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 distinction could, it was said, be justified on the policy ground that convictions prior to the coming into force of the Act should not be disturbed.

15. I confess that from the start of the hearing in the present appeal, I have had grave doubts whether the majority decision in Lambert could be supported. Had I been a party to the hearing in Lambert, I would have found myself in the embarrassing position of not agreeing with anyone, even though three different views were expressed. I should not have been able to agree with the majority, since to my mind the language of section 7(6) is not sufficiently clear to exclude by implication appeals in proceedings brought by or at the instigation of a public authority from the retrospective operation of section 22(4). I should not have been able to agree with Lord Steyn, because on his reading of section 6(1), section 22(4) would be deprived of all effect. I should have agreed with almost all of Lord Hope of Craighead's reasoning, but not with the last step in which he drew a distinction between the act of a court and the act of the prosecuting authority, and pointed out that the court is not a party to any proceedings, and is not therefore a public authority by or at the instigation of which proceedings are brought.

16. I might have held that it was unnecessary to decide the retrospective question in Lambert because the act of the judge in summing up on the burden of proof was not in any event unlawful within the meaning of section 6(1) of the Act, since he could not have "acted differently" within the meaning of section 6(2)(a). He was compelled to sum up as he did by virtue of the provisions of section 5(3) and 28 of the Misuse of Drugs Act 1971. I say I might have so decided. But I doubt whether I would, since the point was never argued on behalf of the Crown.

17. None of these considerations would have been worth mentioning if your Lordships were all of the view (i) that the principle stated in Lambert is binding on the House and (ii) that the facts are indistinguishable. But unfortunately two of your Lordships have given further reasons for supporting the decision in Lambert, and two of your Lordships have held that the reasoning in Lambert is erroneous. In those circumstances it would not have been right for me to sit on the fence. I must express a view on the merits. We have heard full argument on the point, perhaps fuller than the argument in Lambert. At the end of the argument I was even more convinced than I was at the beginning that the decision in Lambert is erroneous, and if it be necessary to say so, plainly erroneous. My reasons are the same as those set out at length in the speech of Lord Hope, which I would respectfully adopt, and more shortly in the speech of Lord Steyn. It does not matter that the actual decision in Lambert could have been supported on some other ground. If the reasoning in Lambert covers the facts of the present case, then we are bound to follow it, whatever our own views may be, unless we are going to apply the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. This seems to me to be the point of major importance in the case.

18. Lord Hope is of the view that we can depart from Lambert on the ground that we are here in a developing field of jurisprudence, and therefore the sooner any mistakes are corrected the better. Moreover, the decision in Lambert was itself inconsistent with a previous majority decision of the House of Lords in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, to which Lord Slynn of Hadley, Lord Steyn and Lord Hope were all party, and which was given as recently as October 1999 less than two years before Lambert. In the Divisional Court in Kebilene Lord Bingham of Cornhill CJ took it for granted that a defendant would be entitled to rely on section 22(4) at the hearing of an appeal against his conviction: see p 341. Laws LJ was of the same view, at p 352. In R v Benjafield [2001] 3 WLR 75, 92, para 51 Lord Woolf MR said that where the original proceedings are brought by a public authority, an appeal is part of those proceedings to which section 22(4) applies. I respectfully agree with Lord Hope that these are all very weighty considerations. They cannot be brushed aside. But they lead me to a different conclusion.

19. In my opinion the only satisfactory way of resolving the present conflict of judicial opinion at the highest level would be to require the present appeal to be reargued before a panel of seven Law Lords. That is the traditional way in which problems of this kind are dealt with. In addition to the unsatisfactory features to which Lord Hope has drawn attention, I am especially concerned that the decision in the present case will affect other cases in the pipeline, and in particular the so called "Guinness Appellants", whose appeals are currently pending in the Court of Appeal. Justice to them requires that the present appeal be reheard, and the conflict finally resolved. But it seems that a rehearing before a panel of seven Law Lords cannot be arranged in time. So the conflict remains unresolved, and the only question is whether, as a panel of five, we should depart from the decision in Lambert. I am quite clear that we should not.

20. In Lewis v Attorney General of Jamaica [2001] 2 AC 50, an appeal to the Privy Council from the Court of Appeal of Jamaica, the Board took a different view on three questions which had been considered and answered in three recent decisions of the Board. In a dissenting judgment, Lord Hoffmann drew attention to the evils which would follow if the power to overrule previous decisions of the Privy Council were exercised too readily. It is worth quoting again two passages which Lord Hoffmann quoted from recent decisions of the Supreme Court of the United States. In Planned Parenthood of Southeastern Pennsylvania v Casey (1992) 505 US 833, O'Connor, Kennedy and Souter JJ, speaking for the court, said, at p 854:

In Mitchell v W T Grant Co (1974) 416 US 600, 636, Stewart J said:

Lord Hoffmann [2001] 2 AC 50, 90 went on to point out that the observations of Stewart J apply with even greater force in our own jurisdiction, where the Privy Council and the House of Lords customarily sit in panels of five, and not in banc.

21. I find that I share Lord Hoffmann's concern. The reasons given by Lord Hope for departing from Lambert justify, and justify in full, a rehearing of the present appeal before a panel of seven Law Lords. That is the course which I would advocate. But those reasons fall short of the sort of compelling considerations necessary to justify your Lordships departing from so recent a decision. The reasoning in Lambert represents a possible view. Of that there can be no doubt. It has not been shown to be unworkable. In my view it should be followed. If we were to depart from Lambert today, who is to say that a differently constituted Appellate Committee, presented with fresh arguments, might not depart from our decision tomorrow?

22. There remains the question whether the present case can be distinguished from Lambert on the facts. There are, of course, factual differences. In the present case we are concerned with the act of the prosecuting authority, whereas in Lambert we were concerned with the act of the trial judge. There is much to be said for the argument put forward on behalf of the interveners that whereas the judge in Lambert was compelled by primary legislation to act as he did, the prosecuting authority in the present case had a discretion whether to introduce the evidence obtained in accordance with section 433 of the Insolvency Act 1986. I am not at present persuaded that the discretionary act of the prosecution in introducing the challenged evidence is saved from being unlawful by the provisions of section 6(2)(b) in the way that the mandatory obligation of the judge in Lambert might have been saved by the provisions of section 6(2)(a), if the point had been taken. In any event it would not be satisfactory to decide the point without fuller argument; and even if we were so to decide it would not help the respondent. It is the reasoning in Lambert which binds, not the bare decision.

23. There is nothing in the suggested distinction that this is not an ordinary appeal, but proceedings brought by or at the instigation of the Criminal Cases Review Commission.

24. For the above reasons, I consider that the reasoning in Lambert prohibits the respondent from relying on the retrospective effect of section 22(4) of the Act. Accordingly, I would allow the appeal.

LORD STEYN

My Lords,

25. The question is whether the House should depart from the decision in R v Lambert [2001] 3 WLR 206, which was announced in July this year.

26. In Lambert the House by a majority held that section 22(4) of the Human Rights Act 1998, read with section 7(6), draws a distinction between criminal trials and appeals, and does not permit a defendant in proceedings brought by or at the instigation of a public authority to rely on convention rights after 2 October 2000 where the trial took place before that date but the appeal after that date. In the light of the arguments now before the House I am satisfied that the majority in Lambert were mistaken. Three points stand out. First, the word "proceedings" cover both trials and appeals. Section 7(6) does not require a different approach. Indeed section 7(6)(a) and (b) are not mutually exclusive eg an appeal to the Divisional Court on a case stated by the Crown falls under both. Secondly, the rationale of section 22(4) was not appreciated in Lambert. We now know that "proceedings brought by or at the instigation of a public authority" in section 22(4) were singled out for special treatment in recognition of the United Kingdom's international obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms from the date of ratification by the United Kingdom in 1951 or the date of conferment of the right of petition in 1966. This rationale does not support the artificial distinction between criminal trials and appeals. Thirdly, in Lambert the majority was strongly influenced by the view that the contrary interpretation would lead to the challenging of old convictions. It is now clear that there is a perfectly effective filter by way of the discretion of the Court of Appeal to refuse to extend time for leave to appeal in such cases. Moreover, a similar filter is applicable to the decision of the Criminal Cases Review Commission. For these briefly expressed reasons I am of the opinion that the holding of the majority in Lambert was mistaken.

27. It does not, however, follow that we must now depart from that decision. In R v Knuller (Publishing, Printing and Promotions Ltd) [1973] AC 435 Lord Reid faced a similar problem. He observed at p 455B-D):

"It was decided by this House in Shaw v Director of Public Prosecutions

[1962] AC 220

Shaw's

Taking into account that we are not dealing with the entire future of the Human Rights Act 1998, but only with a transitional provision on which the House has very recently given a clear-cut decision, I am persuaded that it would be wrong now to depart from the ratio decidendi of Lambert. I reject the principal and alternative submissions advanced on behalf of the respondent.

28. For these reasons I would also make the order which Lord Slynn of Hadley proposes.

LORD HOPE OF CRAIGHEAD

My Lords,

29. When I first circulated a draft judgment in this case I hoped that it might have been possible for your Lordships to agree that we should depart from the view of the majority in R v Lambert [2001] 3 WLR 206. My noble and learned friend, Lord Lloyd of Berwick has suggested as an alternative that the question whether it should be departed from should be referred to a panel of seven Law Lords. It is now clear that there is no majority in favour of either of these two solutions.

30. Much of what I have written about at such length may now seem to be pointless, as a clear majority has emerged in this case in favour of adhering to the majority view in R v Lambert. It has occurred to me that I should then, out of loyalty to the view of the majority, simply withdraw my draft judgment. On balance I have decided that I ought to adhere to it, in case it may still be necessary in some future case to consider the question whether the benefit of retrospectivity under section 22(4) of the Human Rights Act 1998 is available in an appeal. What follows, with only a few changes, is my judgment as originally circulated.

31. The first question raised by this appeal is whether, following a reference to the Court of Appeal (Criminal Division) by the Criminal Cases Review Commission, 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 is entitled, after the coming into force of these provisions, to rely as a ground of appeal against his conviction on an alleged breach of his Convention rights at the trial by the prosecutor. Unless it was open to the respondent in his appeal to rely on those provisions retrospectively, the appeal must be allowed. It would plainly not have been open to the Court of Appeal [2001] 3 WLR 751 to apply section 22(4) of the 1998 Act and quash the convictions. But if the question is answered in the affirmative, it will be necessary to consider a further question which was dealt with for the most part in written submissions put in after the end of the oral argument. This is whether the prosecutor's act in relying at the trial under section 433 of the Insolvency Act 1986 on compulsory questioning evidence was an unlawful act for the purposes of section 7(1)(b). If it was not, that too would be a ground for allowing the appeal.

32. In R v Lambert [2001] 3 WLR 206 the issues in the certificate which was given by the Court of Appeal under section 33(2) of the Criminal Appeal Act 1968 included the following question:

Human Rights Act 1998

section 6

33. Lord Hutton, who was the only one of your Lordships to indicate in terms how he would answer the question in that case, said that he would answer it "No" in relation to an alleged breach of his rights "by the trial court": p 276, para 203. I said, at p 245, para 116, that I, too, was of the view that the question should be answered in the negative in regard to an alleged breach of the appellant's Convention rights by the trial court. Lord Clyde said, at p 255, para 148, that it was not open to the appellant to invoke the provisions of the 1998 Act "in the present appeal". There was thus a majority for the view that it was appropriate to express the decision in that case in terms which did not extend to a breach of Convention rights by an investigating or prosecuting authority.

34. But there is no doubt that the reasons which three of your Lordships gave for that decision were not so confined. Lord Slynn of Hadley said, at p 212, para 18, that he would dismiss the appeal on the broader ground that the appellant could not rely on Convention rights in a national court "in respect of a conviction" before the 1998 Act came into force. At p 210, para 9 he said that section 22(4) of the 1998 Act, which extends the application of section 7(1)(b) only where proceedings are brought by a public authority, appeared to indicate that an appeal by an unsuccessful defendant was not to be treated as a proceeding brought by or at the instigation of a public authority. Lord Clyde, at p 253, para 140, also said that in his view the intention was that section 22(4) should not extend to an appeal. Lord Hutton expressed the same view at p 263, para 172. I reached my decision by a different route, as I said, at p 241, para 107, that an accused whose trial took place before the Act came into force was entitled to rely in an appeal after it was in force on an alleged breach of his Convention rights by the prosecuting authority. But Lord Slynn's line of reasoning was supported by a majority of their Lordships in that appeal. That view, which I shall call "the majority view", was the ratio for the decision of the majority.

35. On its facts the present case differs from R v Lambert [2001] 3 WLR 206 in two respects. In the first place, the respondent's appeal against his conviction in the Crown Court on 18 February 1992 was dismissed by the Court of Appeal (Criminal Division) on 12 May 1992. But his conviction has now been referred back to the Court of Appeal by the Criminal Cases Review Commission. The reference has been made under section 9 of the Criminal Appeal Act 1995 on the ground that, following the judgment of the European Court of Human Rights in Saunders v United Kingdom (1996) 23 EHRR 313 and the coming into effect of the 1998 Act, there is a real possibility that the conviction was unsafe. In the second place, the breach of the respondent's Convention rights in this case is said to have been an act of the prosecutor, not an act by the trial court. The act which was alleged in R v Lambert to be incompatible with the appellant's Convention rights was a direction given to the jury by the trial judge that the appellant required to establish his defence to a charge of possession of a class A controlled drug with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971 under section 28 of that Act on the balance of probabilities. Your Lordships held that this direction was not compatible with article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. As the direction was given by the trial judge it was regarded as an act on the part of the trial court, not an act of the prosecutor.

36. I shall return later to the question whether the fact that the appeal in this case follows upon a reference by the Criminal Cases Review Commission is a ground for saying that the decision in R v Lambert does not apply to it. It is the second ground for distinguishing that case on its facts that sets the scene for the point which lies at the centre of this case. This is whether the majority view expressed in R v Lambert has foreclosed the argument that the respondent is entitled to take advantage in this appeal of the retrospective application of section 7(1)(b) of the Human Rights Act 1998 in terms of section 22(4) of that Act as he was the victim of a breach of his Convention rights at his trial by the prosecutor.

The facts

37. The respondent came to this country from India in 1967. He qualified in 1973 as a pharmacist. He later formed a company which operated 20 chemist shops. In about 1983, with the assistance of a large mortgage, he bought a house in joint names with his wife. In 1986 he and his company began to encounter financial problems. In February 1987 the company went into liquidation. On 20 May 1987 a bankruptcy petition was presented against him, and on 11 March 1988 a bankruptcy order was made. On 16 and 23 March 1988 he obtained a substantial sum of money from the Halifax Building Society. He had deceived the building society into making advances to him by making false representations in his application form. On 23 March 1988 his wife took possession of £104,000 in cash, which was part of the amount advanced to the respondent by the building society, and took it in a bin liner to India. On 16 March 1988 the respondent was interviewed by an examiner at the official receiver's office. He was further interviewed there on 20 May 1988. These interviews were conducted under section 291 of the Insolvency Act 1986, which imposes a duty on the bankrupt to answer questions put to him by the official receiver. On 17 June 1988 the respondent was ordered to lodge a cash account relating to his estate. He was publicly examined on 29 July 1988. He failed to account for or give a satisfactory explanation of the loss of his property prior to his bankruptcy.

38. On 18 February 1992 the respondent was found guilty in the Crown Court at Snaresbrook of two counts of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 (counts 1 and 2) of, being a bankrupt, removing property contrary to section 354(2) of the Insolvency Act 1986 (count 4) and of, being a bankrupt, failing to account for the loss of his property contrary to section 354(3) of the Insolvency Act 1986 (count 5). The prosecution led evidence against him at his trial of answers which he had given under compulsion when he was examined on oath in the bankruptcy proceedings. Section 433 of the Insolvency Act 1986 provides that statements made by a person in response to a requirement imposed by the Act or rules made under it may be used in evidence in proceedings against him. A submission on his behalf that, notwithstanding section 433 of that Act, the transcript of his public examination in the bankruptcy proceedings was inadmissible by virtue of section 31 of the Theft Act 1968 was rejected by the trial judge.

39. The respondent was sentenced to 15 months' imprisonment on counts 1 and 2 concurrently and to three months' imprisonment on counts 4 and 5 concurrently with each other and with the 15 months' imprisonment on counts 1 and 2. He appealed to the Court of Appeal (Criminal Division) on the ground that the trial judge erred in law in ruling that the answers which he had given during his examination on oath in the bankruptcy proceedings were admissible under section 433 of the Insolvency Act 1986 and were not rendered inadmissible by section 31 of the Theft Act 1968. On 12 May 1992 the Court of Appeal dismissed his appeal.

40. On 27 April 1998 the Criminal Cases Review Commission referred the respondent's convictions on counts 1 and 2 only to the Court of Appeal (Criminal Division) under section 9(1) of the Criminal Appeal Act 1995. It did so on the ground that there was a real possibility that the court would find his conviction on those counts unsafe in the light of the decision in R v Preddy [1996] AC 815. On 20 June 2000, following further representations on behalf of the respondent, the Commission referred his convictions on counts 4 and 5 also to the Court of Appeal (Criminal Division): see section 9(4) of the 1995 Act. This was done on the ground, among others, that there was a real possibility, following the judgment 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 the court would find that the admission of the respondents' answers under compulsion at his trial was in breach of article 6 of the Convention and that his convictions on counts 4 and 5, as well as his convictions on counts 1 and 2, were unsafe.

41. In the meantime, on 28 October 1999, your Lordships gave judgment in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326. One of the issues in that case was whether the Human Rights Act 1998 gave rise to a legitimate expectation that, prior to its taking full effect, the Director would exercise his discretion to consent to a prosecution under the Prevention of Terrorism (Temporary Provisions) Act 1989 in accordance with article 6(2) of the Convention which guarantees the presumption of innocence. The applicants' argument in the Divisional Court was summarised by Lord Bingham of Cornhill CJ at pp 338H-339B:

The applicants' argument failed in the Divisional Court on other grounds. But that part of it which relied on the effect of section 22(4) as to their right to rely on the Convention in an appeal was accepted: see p 341A-B per Lord Bingham; p 352C-D per Laws LJ.

42. The same point formed part of the applicants' argument in this House: see p 360G-H. Lord Hobhouse of Woodborough said, at p 395D, that it was the cornerstone of their argument. The Director presented a contrary argument. At p 368B-C Lord Steyn said:

Lord Slynn of Hadley at p 362A-B, agreed with Lord Steyn. Lord Cooke of Thorndon too said, at p 372C, that he was in general agreement with Lord Steyn. At p 375D I said that, if the Act were in force, the appropriate remedy would be to raise the issue of incompatibility with the Convention right at trial or on appeal.

43. On 24 May 2001 the Court of Appeal (Criminal Division) (Rose LJ, Rougier and McCombe JJ) [2001] 3 WLR 751 allowed the appeal. The court held that, as a matter of construction, the consequences of the absence from the Criminal Appeal Act 1995 of any time limit for references by the Criminal Cases Review Commission and of section 22(4) of the Human Rights Act 1998 as interpreted in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 were (1) that it was open to the Commission to refer a conviction following a trial whenever it took place and (2) that the court had no option but to declare the conviction unsafe if that was the result either of the admission of evidence obtained in breach of article 6 of the Convention or of a change in the common law: pp 760H-761C. As for the challenge to the safety of the respondent's conviction on all four counts because of the use made at the trial under section 433 of the Insolvency Act 1986 of his answers in the bankruptcy proceedings before the official receiver which were compelled by section 291 of that Act, the court held that the convictions on those counts could not be regarded as safe in the light of the inadmissibility, as it must now be held to be, of those answers and the judge's direction to the jury as to the potential significance of the transcript of those proceedings. The appeal was allowed and the convictions on all counts were quashed.

44. The Crown asked for and were granted permission to appeal. A certificate was granted under section 33(2) of the Criminal Appeal Act 1968 that the following point of law of general public importance was involved in the decision:

The issues in this appeal

45. The parties are agreed that the issue in this appeal turns on whether there is any material distinction between the facts in R v Lambert [2001] 3 WLR 206 and the facts in this case. The Crown submits that no such distinction can be drawn, that the reasons given by the majority in that case should be applied here also and that in any event, having regard to the provisions of section 6 of the Act read with section 7(1)(b), the two cases are indistinguishable. The respondent submits that his case is to be distinguished from R v Lambert and that the House is not bound by the reasons given in that case by the majority.

46. Shortly before the hearing of the appeal the Guinness appellants sought leave to intervene and were granted leave to present submissions both orally and in writing. They are parties to two sets of proceedings which raise issues substantially similar to those in the present case and are likely therefore to be affected directly by its outcome. These are their pending appeals before the Court of Appeal (Criminal Division) following references of their cases to that court by the Criminal Cases Review Commission and the Crown's pending application for judicial review of the Commission's reference of their case to the Court of Appeal. Your Lordships have had the benefit of detailed and carefully presented submissions by Mr Emmerson QC for the interveners on a number of matters which were not dealt with at the hearing of the appeals in Ex p Kebilene and R v Lambert.

47. On one view of the decision in R v Lambert, all that was decided was that decisions of courts and tribunals made before 2 October 2000 cannot be impugned after that date on the ground that the court or tribunal acted incompatibly with a Convention right as the retrospective application of section 7(1)(b) provided for in section 22(4) does not apply to the acts of courts or tribunals. That interpretation of the decision is consistent with the views which I expressed in that case as to the meaning and effect of these provisions in the 1998 Act. As I have explained, it is consistent also with the views expressed by both Lord Clyde and Lord Hutton as to how the question in that case should be answered. That also is how Lord Cooke of Thorndon understood the position to be when he was giving the judgment of the Board in Preiss v General Dental Council [2001] WLR 1926, 1934, para 21. But the Crown maintains that it was decided in R v Lambert that all appeals by an unsuccessful defendant are excluded from the retrospective application of section 7(1)(b) whether or not the act made unlawful by section 6(1) was that of the court or the prosecutor.

48. If the Crown is right on this point, it will be necessary to deal with two further arguments. The respondent submits that references made to the Court of Appeal by the Criminal Cases Review Commission, and appeals from decisions made on those references, are themselves proceedings brought by or at the instigation of a public authority within the meaning of section 7(6)(a). He also submits that appeals by the Crown or any other public authority in any proceedings, including this appeal to your Lordships' House, are proceedings brought by or at the instigation of a public authority within the meaning of that paragraph. The Crown says in its reply that neither of these propositions assists the respondent. It submits that references by the Commission and appeals which follow after a conviction are to be seen, not as separate proceedings, but as part of the criminal proceedings brought by the Crown with a view to obtaining a conviction. But, as they are appeals, section 7(6)(b) applies to them. So they are not proceedings brought by or at the instigation of a public authority for the purposes of section 22(4).

49. I propose therefore to approach this case in five stages. The first is to revisit the provisions of sections 7(1) and 7(6) of the 1998 Act in order to see whether the reasons given by the majority in R v Lambert can now be regarded as tenable in the light of the further consideration which has been given to the effect of these provisions in this case. The second is to examine and assess the various practical objections which have been advanced both by the respondent and the interveners to a reading of them which would exclude all appeals against any decisions made before 2 October 2000 from the retrospective effect which is given to section 7(1)(b) by section 22(4). The third is to set out my conclusion on the difficult question whether or not the majority view in R v Lambert should now be departed from if it can no longer be regarded as tenable. The fourth is to examine a ground for the dealing with the point raised in R v Lambert which would appear to avoid the difficulty and then to consider how that reasoning should be applied in this case. I shall deal finally with the respondent's arguments that references by the Criminal Cases Review Commission and appeals by the Crown or other public authority are proceedings by or at the instigation of a public authority to which retrospectivity is given by section 22(4).

Must we adhere to the majority view?

50. I should like to say something at the outset about the test which I think should be applied as to whether it is open to your Lordships to depart from the majority view in R v Lambert on the question whether the effect of section 22(4) read together with sections 7(1)(b) and 7(6) of the 1998 Act is to exclude all appeals from retrospectivity. I do so because I am conscious of the fact that your Lordships, for various reasons, do not agree with me that it is open to us to depart from the majority view in this case. I must explain why I have reached a different opinion on this point.

51. As Lord Wilberforce observed in Fitzleet Estates Ltd v Cherry (Inspector of Taxes) [1977] 1 WLR 1345, 1349D-E, the best way to resolve a question as to which there are two eminently possible views is by the considered majority opinion of the ultimate tribunal, and much more than mere doubts as to the correctness of that opinion are needed to justify departing from it. But the development of our jurisprudence on the Human Rights Act 1998 has only just begun. New problems are being revealed every week, if not every day. I believe that the interests of human rights law would not be well served if the House was to regard itself as bound by views expressed by the majority in a previous case about the meaning of provisions in that Act, if to adhere to those reasons would produce serious anomalies or other results which are plainly unsatisfactory: see R v National Insurance Commissioner, Ex p Hudson [1972] AC 944, 966, 993 per Lord Reid and, Viscount Dilhorne. Furthermore, as I shall attempt to show, I do not think that this is case where each of the two competing views on the critical question can be described, in Lord Wilberforce's words, as "eminently possible". With great respect, I consider that the view of the majority in R v Lambert was a mistaken one. If a mistake was indeed made, I believe that it would be better to face up to that fact now and to correct it as soon as possible.

52. There are four other important factors which I think ought to be taken into account. The first is that views contrary to those of the majority in R v Lambert were expressed by a majority of your Lordships in Ex p Kebilene [2000] 2 AC 326. The majority view in Ex p Kebilene was referred to and applied by the Court of Appeal in this case: [2001] 3 WLR 751, 758E-F, 760A. It was also followed by the Court of Appeal in R v Benjafield [2001] 3 WLR 75, 92F-93D. Lord Woolf CJ, giving the judgment of the court, added these observations, at p 93, para 51:

The fact that the majority view in Ex p Kebilene was consistent with the view expressed by Lord Bingham CJ in the Divisional Court in that case and was endorsed by Lord Woolf CJ in R v Benjafield is significant. It is not easy to dismiss that view as a mistake. It seems to me that this is one of those rare cases which are bound to occur from time to time in a jurisdiction such as ours, however well organised, where the court of last instance has arrived at different conclusions in different cases on the same point. On the other hand I would attach no importance to what was said in Preiss v General Dental Council [2001] WLR 1926. Judgment was not given in R v Lambert until after the hearing of that appeal, so the effect of that judgment was not explored at all during the argument.

53. The second factor is that the House has not been asked by either party in this case to apply the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 and depart from the bare decision in R v Lambert. I think that this helps to show that the situation is different from that contemplated by Lord Hoffmann in his dissenting judgment in Lewis v Attorney General of Jamaica [2001] 2 AC 50. As he explained, at p 88B-D, all three questions raised by that case had already been considered and answered in three recent decisions of the Board and he did not think that there was any justification for departing from any of them. I do not think that we are presented in this case with the same difficulty. We are dealing here with a question as to the meaning of a statute, not judge-made law or broad issues of principle. As I said at the outset of this judgment, I think that the decision in R v Lambert can be regarded as having been confined by Lord Clyde, Lord Hutton and myself to an alleged breach of Convention rights by the trial court - deliberately so, as that was the only point about the effect of section 22(4) that had to be decided in that case. The question is how the reasoning of the majority about the meaning of the relevant provisions in the 1998 Act is to be applied to different facts and circumstances. Experience tells us that it is not always possible at a stroke to solve all the problems which may arise as to the meaning of a statute. I agree that we should try to speak with one voice and to achieve consistency. There are obvious dangers in departing from a line of reasoning in a previous case which had the support of a majority. But we are not infallible. Looking to the wider public interest, it seems to me that in the present context correction is more desirable than consistency.

54. The third factor is that the majority view has still not been tested in a civil case. As I shall mention later, one of the principal concerns of the majority was the effect of retrospectivity on past convictions. I agree that this a matter of legitimate concern. But if Parliament had wished to preserve past convictions it could have done so by providing expressly that section 22(4) did not extend to an appeal against conviction. As it is, it is plain that the words in section 7(6)(b) on which the majority view relies extend to all appeals, whether civil or criminal. It would be unsatisfactory if the majority view were to be regarded as having pre-empted the question whether section 22(4) applies to civil appeals, to which the concern about past convictions does not apply.

55. The fourth factor is the context in which the question which is before the House in this case has been raised. The United Kingdom is required by its treaty obligations to comply with article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides:

The United Kingdom has also undertaken under article 46 of the Convention to accept the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention. These obligations have been binding on the United Kingdom in international law since ratification in 1951. Since 1966 the right of individual petition against the state under article 25 has been available. The purpose of sections 7 to 9 of the 1998 Act is to provide a structure within which effect can be given to these obligations in domestic law. The extent to which the 1998 Act gives retrospective effect to its provisions needs to be seen in that context. This is an exercise which was absent from the discussion which took place in R v Lambert.

56. The effect of section 22(4) has been explained in the annotations to the 1998 Act in Current Law Statutes, to which the late Peter Duffy QC contributed, as being to enable the Act to be used defensively against public authorities with retrospective effect but not, it appears, offensively. The example is given of a person charged with an offence under subordinate legislation pre-dating the Act's entry into force who would be entitled to rely on the Convention to show that the legislation was invalid but not to bring an application for judicial review for a declaration that it was invalid. There remain however a number of difficult issues in regard to retrospectivity which section 22(4) does not address directly and on which no view has been expressed in the commentary. They include the question whether its effect is to permit a defendant in proceedings brought by or at the instigation of a public authority to rely on his Convention rights where the proceedings at first instance took place before the Act came into force and the point is raised for the first time on appeal. A further question is whether, in criminal cases, it makes any difference whether the breach was brought about by an act of the prosecutor or by a judicial act and, if judicial acts (or at least some judicial acts) are to be treated differently, what it is that enables these acts to be distinguished from acts of the prosecutor.

Does section 22(4) exclude appeals?

57. Section 22(4) provides that section 7(1)(b) applies "to proceedings brought by or at the instigation of a public authority" whenever the act in question took place, but that otherwise that subsection does not apply to an act taking place before the coming into force of that section. The word "proceedings" is not, as such, defined anywhere in the Act. At first sight this provision extends to proceedings of any kind in any court or tribunal, whether at first instance or on appeal. In any event it must be taken to apply to proceedings in every kind of case, whether civil or criminal. Nevertheless, in order to understand fully the scope which is to be given to the word in its context, it is necessary to examine the provisions in section 7 to which section 22(4) refers.

(a)
section 7(1)(a)

58. Section 7, as indicated by its side-note, deals with "proceedings." Subsection (1) provides that a person who claims that a public authority has acted, or proposes to act, in a way which is made unlawful by section 6(1) may do one or other of two things. He may bring proceedings against the authority under the Act in the appropriate court or tribunal: section 7(1)(a). Or he may rely on the Convention right or rights concerned in any legal proceedings: section 7(1)(b). Section 22(4) gives retrospective effect only to section 7(1)(b). As retrospective effect is given only to proceedings brought by or at the instigation of a public authority, it would not have been appropriate for section 22(4) to have referred also to section 7(1)(a). That provision refers only to proceedings brought by the victim against the authority whose act is made unlawful by section 6(1).

59. Lord Clyde referred in R v Lambert [2001] 3 WLR 206, 253A-C to the fact that, in so far as the act for the purposes of section 7(1)(a) is a judicial act, the proceedings must be one or other of those set out in section 9(1). The first of these is by exercising a right of appeal: section 9(1)(a). He said that it did not appear likely that there should be a retrospectivity under section 7(1)(b) in respect of an appeal against a decision given prior to 2 October 2000 if there was none under section 7(1)(a). This was one of the two reasons which he gave for his view that section 22(4) did not extend retrospectivity to appeals. I have looked more closely at this point in the light of the more detailed argument which we have had in this case. With great respect, I do not think that it bears the weight which Lord Clyde would wish to attach to it.

60. Section 7(1)(a) and section 7(1)(b) are designed to provide two quite different remedies. Section 7(1)(a) enables the victim of the unlawful act to bring proceedings under the Act against the authority. It is intended to cater for free-standing claims made under the Act where there are no other proceedings in which the claim can be made. This provision also differs from that in section 7(1)(b), in that claims made under it are subject to the time limit prescribed by section 7(5). This subsection provides that proceedings under section 7(1)(a) must be brought before the end of the period of one year beginning with the date on which the act complained of took place or such longer period as the court or tribunal considers equitable, but subject to any rule imposing a stricter time limit in relation to the procedure in question. Among the remedies that may be obtained by this means against the public authority is that of damages: see section 8. Section 8(2) provides that damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. The purpose of this provision is to ensure that a claim for damages as a result of a criminal prosecution is brought in a civil court.

61. The Lord Chancellor's Consultation Paper, Human Rights Act 1998: Rules & Practice Directions, CP5/00, March 2000, proposed in paragraph 12 that what it described as "a free-standing case under section 7(1)(a) of the Act" should be brought (a) by using the existing judicial review procedures, (b) in the county court or in the High Court where a claim of damages is made or (c) in the county court or the High Court following a finding of unlawfulness under section 7(1)(b) in some other court or tribunal which does not have the power to award damages or compensation - where, for example, damages are claimed arising out of a ruling by a magistrates' court or the Crown Court that the prosecution had acted unlawfully. In paragraph 15 reference was made to proposals designed to ensure that issues of article 5(5) damages were determined in the appropriate court. The Civil Procedure (Amendment No 4) Rules 2000 (SI 2000/2092), which made the appropriate amendments to the Civil Procedure Rules 1998, came into force on 2 October 2000. Among the new rules is CPR rule 7.11(1), which provides that a claim under section 7(1)(a) in respect of a judicial act may be brought only in the High Court; see also rule 19.4A(3) and rule 33.9.

62. Article 5(5) of the Convention provides that everyone who has been the victim of arrest or detention in contravention of that article shall have an enforceable right to compensation. But under English law, there was prior to the Human Rights Act 1998, no right to compensation where the detention took place following the issue of a warrant by a court. The prison governor was protected by the court's warrant, and the judge was protected by his immunity from liability in a civil action for damages in respect of acts done in his judicial capacity: Sirros v Moore [1975] QB 118; see also the Justices of the Peace Act 1997, sections 51 and 52 as regards magistrates. Section 9 of the 1998 Act preserves judicial immunity except to the extent required by article 5(5). Section 9(1) provides that proceedings under section 7(1)(a) in respect of a judicial act may be brought only by exercising a right of appeal, on an application for judicial review or in such other forum as may be prescribed by rules. Section 9(3) provides that in proceedings under the Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by article 5(5) of the Convention, and section 9(4) provides that any award of damages under section 9(3) is to be made against the Crown.

63. Thus the purpose of section 7(1)(a) is to enable the victim to bring free-standing proceedings against the public authority whose act was unlawful under section 6(1). Section 7(2) provides that the reference in section 7(1)(a) to "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules. The rules make it clear that these proceedings are civil proceedings, and that they cannot be brought in a criminal court. The reference in section 9(1)(a) to exercising a right of appeal is intended to describe one of the means by which a section 7(1)(a) claim may be brought in civil court under the special procedures which apply where the act complained of is a judicial act.

64. Section 7(1)(a) does not apply where the victim wishes to rely on his Convention rights in his capacity as the defendant in proceedings which have been brought against him by a public authority. His remedy in those proceedings is that provided by section 7(1)(b). The reference in section 9(1)(a) to exercising a right of appeal is intended to describe one of the means by which a section 7(1)(a) claim may be brought in a civil court where the act complained of is a judicial act and where such a right of appeal is available. These provisions are not concerned with the situation where a person claiming to be a victim of a violation wishes to rely on his Convention rights in existing proceedings brought against him by a public authority.

65. For these reasons I think that the fact that section 22(4) does not give retrospective effect to section 7(1)(a) - and thus to proceedings under that provision in respect of a judicial act which are brought by exercising a right of appeal, as section 9(1)(a) provides - has no bearing on the meaning to be given to the word "proceedings" in section 7(1)(b) as applied retrospectively by section 22(4). The remedy by way of an appeal to which section 9(1) refers is an entirely different remedy from that provided by section 7(1)(b).

(b)
section 7(6)

66. The second reason which Lord Clyde gave for his view that section 22(4) did not apply retrospectively to appeals is the same as that given by Lord Slynn, at p 210, para 9 and Lord Hutton, at p 263, para 172. It is based on the wording of section 7(6), which provides:

67. The words used in section 7(1)(b) to describe the proceedings in which the victim may rely on his Convention rights are "any legal proceedings". The words "legal proceedings" are the subject of the definition in section 7(6) which I have just quoted. It is said to distinguish between (a) proceedings brought by or at the instigation of a public authority on the one hand and (b) an appeal against the decision of a court or tribunal on the other. Attention is then drawn to the fact that the words used in section 22(4) to describe the proceedings in which the victim has the benefit of retrospectivity are "proceedings brought by or at the instigation of a public authority". Section 22(4) uses the same words as those which form the first part of the definition in section 7(6), and it does not mention an appeal. This is said to indicate that the retrospective provision does not extend to appeals. In other words, the benefit of section 22(4) is available only in proceedings at first instance.

68. The Crown do not dispute that the word "proceedings" is capable of including an appeal against a decision at first instance in the same action. As Lord Slynn said in R v Lambert [2001 ] 3 WLR 206, 210, para 9 an appeal may be considered as part of the proceedings initiated by a particular party. The same point was made by Lord Steyn in Ex p Kebilene [2000] 2 AC 326, 368B-C and by Lord Woolf CJ in R v Benjafield [2001] 3 WLR 75, 93, para 51. Indeed Mr McGuinness QC for the Crown put much emphasis on the point that an appeal remains part of the original criminal proceedings brought by the prosecuting authority when he was submitting that neither a reference by the Criminal Cases Review Commission nor an appeal by the Crown were separate proceedings for the purposes of section 22(4).

69. If the intention was to restrict the meaning of the word in this context to proceedings at first instance only, one would have expected this to have been made clear in section 22(4). For example, the Legal Aid Act 1988 is careful to define the courts and tribunals in which legal aid is available, with the result that proceedings in each court or tribunal are separate proceedings for the purposes of legal aid: see sections 14(1) and 19(1). There is no indication in section 22(4) that it was seeking to make that kind of distinction. It does not distinguish between proceedings according to whether they are civil or criminal or restrict them to those before any particular court or tribunal. Nor does it restrict the benefit of retrospectivity to proceedings which were commenced after section 7(1)(b) was brought into force.

70. The only point of distinction to which section 22(4) refers relates to the person by whom or at whose instigation the proceedings are brought. It applies only to proceedings brought by or at the instigation of a public authority. Why then did the provision take this form? In my opinion the answer is not hard to seek. The purpose of the provision was to give effect in domestic law to article 13 of the Convention, which sets out everyone's right to an effective remedy for a violation of his Convention rights notwithstanding that the violation has been committed by persons acting in an official capacity. As I said in Brown v Stott [2001] 2 WLR 817, 847B, sections 7 to 9 were intended to lay down a remedial structure for giving effect to the Convention rights as defined by section 1(1) of the Act. Section 22(4), in so far as it gives retrospectivity to section 7(1)(b), is part of that structure. This fact suggests that, although the provision is limited to proceedings brought by or at the instigation of a public authority, it was not the intention to restrict its effect to any particular stage in those proceedings. It is not possible to identify any good reason, consistent with the principles which underpin Convention rights, for preventing the state from taking advantage of its pre-commencement breach in proceedings at first instance but allowing it do so on appeal.

71. The majority view that section 22(4) does not extend to appeals depends entirely on the words used in section 7(6). The first thing to notice about this provision is that the word which it uses to introduce the definition is the word "includes". The definition does not pretend to be a restrictive or an exhaustive one. It seeks instead, by stating what is to be included in the words "legal proceedings", to put the two matters with which it deals beyond doubt. The second thing to notice about it is that the two matters which are dealt with in it are each directed to different questions. The matters with which it deals are not mutually exclusive. The first question is whether the expression "legal proceedings" includes proceedings brought by or at the instigation of a public authority. The second question is whether the expression includes an appeal against the decision of a court or tribunal. The definition seeks to clarify the circumstances in which the victim of an act of a public authority made unlawful by section 6(1) may exercise the remedy in section 7(1)(b), bearing in mind the fact that section 6(3)(a) provides that a court or tribunal is included in the expression "public authority". The word "proceedings" in section 7(6)(a) appears simply to be a shorthand way of referring back to the words "legal proceedings" in section 7(1)(b). On this view, the reference to an appeal in section 7(6)(b) is available to explain what is meant by "proceedings" in section 7(6)(a). The effect of section 7(6)(b) is that the word "proceedings" in section 7(6)(a) includes an appeal in those proceedings.

72. For these reasons it seems to me that it does not follow from the fact that section 7(6)(b) mentions an appeal against the decision of a court or tribunal that appeals against decisions taken in proceedings brought by or at the instigation of a public authority are excluded from section 7(6)(a). I consider, with great respect, that the balance of the argument is quite plainly the other way. In any event I regard the position favoured by the majority in R v Lambert as unclear, in the absence of an express provision in section 22(4) which limits the retrospective effect of section 7(1)(b) to decisions taken at first instance. In this situation it is necessary to examine the consequences of a reading of section 22(4) which would limit its effect in this way by implication.

Anomalies

73. There are a number of points which arise under this heading.

(a)

A prosecution appeal by way of case stated under section 28 of the Supreme Court Act 1981 against an acquittal in the magistrates' court is a proceeding by a public authority. Although it is described as an appeal, the Crown accepts that it is also a separate proceeding by the public authority which is brought in the High Court. This means that a person can rely on a violation of his Convention rights at a trial which took place before 2 October 2000 if the prosecution appeals by way of case stated against his acquittal. But if the majority view is right, he cannot do so if he was convicted and he wishes to appeal by way of case stated on the ground that there was a violation of his Convention rights at his trial against his conviction. This is because section 22(4) does not extend to an appeal, and the proceeding which the defendant brings by way of case stated is not by or at the instigation of a public authority.

(b)

A reference by the Attorney General to the Court of Appeal under section 36 of the Criminal Justice Act 1988 for review of a sentence pronounced in the Crown Court prior to 2 October 2000 which he considers to be unduly lenient is a separate proceeding by a public authority. Here again the person against whom the sentence was passed can rely on his Convention rights in those proceedings so far as they may be relevant to the question whether his sentence was unduly lenient. But if the majority view is right, he cannot do so if he wishes to appeal against his sentence under section 9 of the Criminal Appeal Act 1968 on the ground that it was imposed in violation of his convention rights. The Crown says that there is no anomaly here, as no examples can be envisaged in the case of a section 36 reference which would engage a possible incompatibility with Convention rights. I do not agree. Sections 36(1)(b)(i) and (ii) make it clear that if the original sentence is quashed the whole sentencing process is re-opened. Articles 3, 5, 7 and 14 all have potential relevance to sentencing exercises carried out by any court.

(c)

If the majority view is right, a person would not be able to rely on a violation of his Convention rights as a ground of appeal against a conviction at a trial which took place before 2 October 2000. The Court of Appeal would not be able to quash the conviction and order a retrial on this ground, as the defendant would not be entitled to ask the Court of Appeal to take account of the violation when it was considering whether the appeal should be allowed and whether or not there should be a retrial. The Crown says that if he was successful in his appeal against his conviction on other grounds and a retrial was ordered, he would be able to rely at the retrial on the same violation of his Convention rights. I agree. But it seems to me that difficult questions may arise as to whether the Court of Appeal can have regard to the violation when it is deciding whether or not there should be a retrial, bearing in mind that it was not open to it to have regard to the violation when it was considering whether the conviction is unsafe. It would not be satisfactory to have to wait for the retrial if the question whether or not there was a violation which would make a conviction in that trial unsafe could be decided before the appeal was disposed of.

(d)

If the majority view is right, a defendant in civil proceedings brought against him by or at the instance of a public authority based upon a pre-commencement act which he says was a violation of his Convention rights would not be able to use this as ground of appeal retrospectively against a decision which went against him at first instance. Examples of appeals in civil proceedings to which this proposition would apply which are likely to raise issues about Convention rights are where the appeal was against a committal order, a refusal to grant habeas corpus or the making of a secure accommodation order under section 25 of the Children Act 1989; see also Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2001] 3 All ER 393, where the right to peaceful enjoyment of possessions was said to have been breached by a repair notice. Nor would he be able to rely on the violation if the decision was in his favour and an appeal was taken against that decision after 2 October 2000 by the public authority. This is because, on the majority view, section 22(4) does not apply to an appeal.

74. It seems to me that these four examples suggest that serious anomalies could result if the majority view is right. They would disappear if the word "proceedings" is given the wider meaning which it is capable of bearing so as to include appeals in the same proceedings. To give it that wider meaning would be consistent with what I understand to have been the purpose of section 22(4), namely to give effect to the state's treaty obligation under article 13 to provide an effective remedy in domestic law in proceedings brought by or at the instigation of a public authority. The underlying policy is that the state should no longer be able to take advantage in those proceedings of its breach of its obligation not to act incompatibly with the Convention rights. On the majority view, the remedy provided by section 22(4) would be effective against violations of Convention rights at first instance in some situations, but not in others. The situations in which it would be effective against those violations would appear, at least in some cases, to depend upon initiatives taken by the public authority which was alleged to have acted unlawfully. It is hard to believe that the framers of the Act, who must have been aware of basic Convention rights principles such as those which require that there be equality of arms between the defendant and the prosecutor and that the victim is afforded an effective remedy, intended this to be so.

75. For these reasons I would, with great respect, depart from the majority view in R v Lambert on this point. I would hold that a defendant whose trial took place before the date of the coming into force of section 7(1)(b) is entitled to rely in an appeal after that date on an alleged breach of his Convention rights at the trial by the prosecutor.

76. I should add that I have considered whether it might be possible to confine the majority view to criminal cases only, as R v Lambert was a criminal case and one of the principal concerns of the majority was about the effect of retrospectivity on past convictions: see Lord Slynn [2001] 3 WLR 206, 210-211, para 10, Lord Clyde, at p 255, para 147 and Lord Hutton, at pp 263-264, para 173. The question, as it has been put to us in this case, is once again confined to criminal cases. So once again was the argument, as the speeches of my noble and learned friends Lord Slynn and Lord Hutton demonstrate. But the reference in section 7(6)(b) to an appeal is unqualified. It extends to any appeal against a decision by a court or tribunal, whether criminal or civil. So the majority view is not capable of being applied to an appeal of one kind only and not to others. It embraces all appeals of whatever kind from decisions at first instance in any kind of case, whether civil or criminal, by any tribunal and by any court. I do not believe that the implications of this result were fully explored in R v Lambert, and they do not appear to have been addressed by Parliament. That is why I think that it would be right for your Lordships now to depart from that reasoning.

77. As I do not feel able to decide this case by following the majority view in R v Lambert, I must now turn to the reasons which I gave for agreeing with the majority that on the facts of that case the appellant, whose trial took place before 2 October 2000, was not entitled to rely on an alleged breach of his Convention rights by the trial court. The arguments which I shall now consider were dealt with only briefly in the oral argument. But they have been dealt with fully in written submissions which were put in afterwards. The question is whether the decision in R v Lambert can still be supported, albeit for different reasons than those given by the majority.

Judicial acts

78. As I explained in R v Lambert [2001] 3 WLR 206, 242, para 109 I based my decision on the view that a court or tribunal is not a party to the proceedings which are brought before it in its judicial capacity and that, for this reason, the words used in section 7(1)(b) are not capable of being applied to a judicial act in the course of those proceedings. But I would be the first to recognise, after hearing further argument, that this approach gives rise to a number of problems and that it is not satisfactory.

79. The first point which I would at once accept is that all three branches of government, including the judiciary, are bound by the treaty obligations which have been assumed by the state under the Convention. This suggests that it is not possible in the context of sections 7 to 9 of the 1998 Act, which are designed to give effect to the state's obligations under article 13 where a person claims that a public authority has acted in a way which is incompatible with a Convention right, to maintain a rigid distinction between acts of a court or tribunal on the one hand and acts of the prosecutor on the other. Furthermore, all public authorities are dealt with in the same way by section 6.

80. In the context of the Scotland Act 1998 the position is different, for the reasons which I gave in Montgomery v HM Advocate [2001] 2 WLR 779,796-798 and Brown v Stott [2001] 2 WLR 817, 846-848. The system which the legislation provides ensures that the state's obligations are respected both by the Scottish Parliament and the Scottish Executive by limiting their competence. The Lord Advocate is a member of the Scottish Executive and all those who prosecute in his name or under his authority have no power to do anything that is incompatible with any of the Convention rights: section 57(2). But these limits on competence do not apply to the court, which is a separate branch of government from the Scottish Executive. The limits on the court's competence are to be found in section 6(1) of the Human Rights Act 1998. But the relevant provisions of that Act came into force on a different date from the relevant provisions of the Scotland Act 1998, and there are important differences between the systems laid down by these two Acts with regard to the provision of an effective remedy. As Lord Coulsfield said in Mills v Lord Advocate (No 2), 2001 SLT 1359, 1365, para 20, intriguing issues may arise as to the interrelationship between the duty imposed on the court under the Convention - which does not raise any kind of devolution issue - and the duty or duties imposed by the devolution legislation on the Lord Advocate. In that context the drawing of a distinction between acts of the court and acts of the prosecutor may be inevitable. But that is not so in cases to which the special features of the devolution legislation do not apply.

81. I would accept also that the character of things that a court may do which are incompatible with a person's right to a fair trial under article 6 of the Convention may be indistinguishable from that of things done by a prosecutor. Some of the things which a court does may be regarded as judicial acts. Decisions made in the course of a trial by the trial judge as to whether to admit evidence and the directions which he is required to give in his summing up are judicial acts. But other things that a court does which may affect the conduct of the proceedings, perhaps through its officials, are administrative in character. If they are incompatible with a Convention right, they should be treated in the same way as acts of the same kind by the prosecutor which are incompatible with the defendant's right to a fair trial.

82. On the other hand, as Mr Emmerson for the interveners pointed out, there is room for the view that some judicial acts may be distinguished from others on the ground that, as a result of one or more provisions of primary legislation, the public authority could not have acted differently: see section 6(2)(a) of the 1998 Act. Acts to which that subsection applies are not made unlawful by section 6(1). I would prefer not to develop this point in any detail as it was not argued in R v Lambert and your Lordships would decide this case on other grounds. But I think that it can be said that, as the direction by the trial judge which was under challenge in that case was in accordance with the meaning and effect of sections 5(3) and 28 of the Misuse of Drugs Act 1971 as it was understood at the time when he gave the direction, no element of discretion was involved in what he did. As the law stood at that time, in terms of section 6(2)(a), he "could not have acted differently". On this approach his act was not made unlawful by section 6(1), so the appellant could not say that he was the victim of an unlawful act for the purposes of section 7(1)(b). I should add that it was not contended in R v Lambert that what occurred in that case was due to any act on the part of the prosecutor.

83. It would be possible therefore by this route to confine the decision in R v Lambert to its own facts. Decisions of courts or tribunals made before 2 October 2000 which they were required to make by primary legislation are not affected by section 22(4) of the 1998 Act. Section 22(4) requires section 7(1)(b) to be read together with section 6(1), as it presumes that acts of a public authority may be made unlawful by that subsection whenever the act took place. But the Act does not say that effect must be given retrospectively to section 3(1). As I indicated in R v Lambert [2001] 3 WLR 206, 244, para 115, I would hold that the interpretative obligation in section 3(1) cannot be applied so as to change retrospectively the meaning which was previously given to a provision in primary legislation. It does not make unlawful acts of courts or tribunals or other public authorities which, as a result of provisions in primary legislation, could not at the time when the acts were done have been done differently: see section 6(2)(a).

84. I do not overlook the fact that in R v Benjafield [2001] 3 WLR 75, 92, para 48 Lord Woolf CJ said that section 3(1) cannot be considered in isolation, and that at p 94, para 53 he concluded that it has retrospective effect if sections 22(4) and 7(1)(b) apply. In my opinion however the usual presumption that statutes are not intended to be retrospective in effect applies to section 3(1). The fact that section 22(4) gives limited retrospectivity only to section 7(1)(b) supports the application of the presumption elsewhere in the Act. Of course, section 7(1)(b) requires to be read with section 6 when it is applied retrospectively to pre-commencement acts. This is because the purpose of the subsection is to enable a person to rely on a pre-commencement act by a public authority which is made unlawful by section 6(1). But I do not find anything either in section 7(1)(b) or in sections 6(1) and (2) which requires retrospective effect to be given to section 3(1). If that were to be done, the result could be that legislation which at the time of the pre-commencement act was being applied correctly according to the traditional rules of statutory interpretation must now for the purposes of section 7(1)(b) be given a different meaning which best accords with Convention rights. Such a result could have profound consequences. It would not be consistent with the general principle on which primary legislation depends, which is legal certainty. So I would not extend retrospectivity to section 3(1), in the absence of an express provision to that effect.

Section 6(2)(b)

85. In the present case the Crown says that the trial judge could not have acted differently, as he was duty bound to admit the compulsory questioning evidence. This is because, according to the traditional rules of construction, it was lawful for that evidence to be used at the trial: see section 6(2)(a). It also says, applying the same rules of construction, that the prosecutor was giving effect to section 433 of the Insolvency Act 1986 when he was leading and relying on that evidence: see section 6(2)(b) of the 1998 Act.

86. I agree that, applying those rules, the judge's act was not unlawful within the meaning of section 6(1), read together with section 6(2)(a), as he had no discretion to refuse to allow the prosecutor to adduce that evidence. To do otherwise would have amounted to a repeal, or at least to a substantial repeal, of legislation enacted by Parliament which authorised the use of that evidence: see R v Staines [1997] 2 Cr App R 426, 442-443 per Lord Bingham of Cornhill CJ. But I think that there is force in the point developed in written submissions by the Crown that the prosecutor's act also was not unlawful on the ground, reading section 6(1) with section 6(2)(b), that what the prosecutor was doing was "acting so as to give effect to" section 433 of the 1986 Act.

87. The respondent and the interveners say that this is not so, as the prosecutor was entitled to make his own choice as to the evidence which was to be led at the trial. They point to the fact that in February 1998 the Attorney General circulated a guidance note to prosecutors on the use by the prosecution of answers obtained under compulsory powers in criminal proceedings which illustrates this point. It took account of the judgment of the European Court of Human Rights in Saunders v United Kingdom (1996) 23 EHRR 313. In paragraph 3 of his note the Attorney General said that the prosecution should not normally use in evidence as part of its case or in cross-examination answers obtained under compulsory powers. In paragraph 4 he said that there was a discretion for such answers to be used in evidence in particular circumstances, as where the defendant who provided the answers himself introduced them in evidence or where he was being prosecuted for a failure or refusal to answer. So, it is said, section 433 of the 1986 Act could be given effect to according to traditional rules of construction by the prosecutor in a way that was compatible with Convention rights.

88. In my opinion however the question whether or not the prosecutor was giving effect to section 433 of the 1986 Act within the meaning of section 6(2)(b) does not depend on whether he had a discretion as to whether or not to use these answers in evidence. The question is whether, having decided to use the answers and invite the judge to hold them to be admissible, he was doing what he was authorised to do by section 433. It seems to me that there can be only one answer to this question. According to the traditional rules of construction by reference to which at the time that provision was to be interpreted, section 433 authorised him to lead and to rely on that evidence. He was entitled also to give effect to section 433 by asking the judge to hold that in terms of that section the evidence was admissible. In this respect I would hold that this case is indistinguishable from R v Lambert and that it too can be decided by applying the provisions of section 6(2). I would hold that there was no act made unlawful by section 6(1) on which the respondent can rely in this appeal under section 7(1)(b).

Criminal Cases Review Commission

89. Mr Krolick for the respondent submitted that, if he was wrong on his main argument about retrospectivity, the respondent was nevertheless entitled to the benefit of section 22(4) in this case because it had come before the Court of Appeal on a reference by the Criminal Cases Review Commission, which is a public authority. He maintained that, that being so, these were proceedings brought or instigated by a public authority within the meaning of section 7(6)(a) and section 22(4) of the Act.

90. As I am in his favour on the main argument but against him on the question whether there was an unlawful act I do not need to deal with this point at any length. I am not persuaded that it is right to regard a reference under section 9 of the Criminal Appeal Act 1995 as a proceeding by the Commission. Section 9(2) states that the reference, once made, shall be treated for all purposes as an appeal by the person under section 1 of the Criminal Appeal Act 1968. The Commission takes no part in the appeal itself, the conduct of which is entirely in the hands of the person whose conviction is under review. Nor do I think that it is right to regard the appeal as having been instigated by the Commission. The Commission has power to make a reference without an application having been made to it by the person to whom it relates: see section 14(1) of the 1995 Act. But that is not what happened in this case. The reference was made in response to an application which was made by the respondent. He took the initiative, so it would be more accurate to say that it was he rather than the Commission who instigated it.

Prosecution appeals

91. Mr Krolick also submitted that, if he was wrong on the previous argument, the respondent was nevertheless entitled to the benefit of retrospectivity because the appeal to your Lordships' House was an appeal by the prosecutor and as such was to be regarded as a proceeding by a public authority within the meaning of section 7(6)(a) and section 22(4) of the Act. He said that the respondent was entitled for this reason to rely on the violation of his Convention right in response to this appeal.

92. Here again I do not need to deal with the point at any length. It is sufficient to say that I would reject this argument on the ground that, for reasons already given, the reference to the Court of Appeal and the appeal to this House must both be regarded as part of the criminal proceedings which were initiated at first instance by the prosecutor.

Conclusion

93. For these reasons I would hold that the Court of Appeal were right to find that the respondent was entitled to rely on the retrospectivity provision in section 22(4) of the Human Rights Act 1998 in his appeal. But I think that they were wrong to declare his convictions unsafe on the ground that they were obtained as the result of the admission of evidence obtained in breach of article 6 of the Convention. I consider that the act of the prosecutor was not made unlawful by section 6(1) as he was acting so as to give effect to a provision in primary legislation which, at the time when the act was done, could not have been read differently. I would allow the appeal.

LORD HUTTON

My Lords,

94. The respondent was convicted nine years ago in February 1992 by a Crown Court of two offences of obtaining property by deception and two offences contrary to section 354 of the Insolvency Act 1986. He appealed against his convictions and his appeal was dismissed by the Court of Appeal on 12 May 1992. It is clear that at the time of his convictions and at the time of the dismissal of his appeal his convictions were lawful and safe in accordance with the law of England. The admission at his trial of answers which the respondent was obliged to give in his examination by the Official Receiver (which admission is now claimed by him to have constituted a breach of Article 6 of the European Convention on Human Rights) was expressly sanctioned by Parliament in section 433 of the Insolvency Act 1986 which provided:

95. Subsequently in 1998 two of his convictions were referred to the Court of Appeal by the Criminal Cases Review Commission and in 2000 the remaining two convictions were also referred and the appeal was heard by the Court of Appeal in April 2001. The Court of Appeal [2001] 3 WLR 751 allowed the appeal and quashed the convictions on the ground that the admission in evidence at the trial of the answers given in the examination by the Official Receiver constituted a violation of Article 6 of the Convention and were accordingly wrongly admitted in evidence so that the convictions were unsafe.

96. The judgment of the Court of Appeal was delivered before the decision of this House in R v Lambert [2001] 3 WLR 206 and the Court of Appeal was of the opinion that, in the light of the authorities which were then before it, section 22(4) of the Human Rights Act 1998 applied to appeals, so that if evidence had been admitted in breach of Article 6 of the European Convention in a criminal trial prior to 2 October 2000 when the Human Right Act came into operation, convictions resulting from the admission of that evidence must be held to be unsafe, notwithstanding that the evidence had been properly admitted in accordance with the domestic law which was then applicable. Therefore, "with no enthusiasm whatever" (see para 24 of the judgment) the Court of Appeal allowed the appeal and quashed the convictions. On the application of the Crown the Court of Appeal then certified the following point of law of general public importance: "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 section 6(1) and section 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?"

97. On this appeal by the Crown against the decision of the Court of Appeal two principal questions arise. The first question is whether the decision of the House in Lambert can be distinguished. If it cannot be distinguished, the second question is whether the House should depart from the decision in Lambert.

Can the decision in Lambert be distinguished?

98. Mr Krolick, on behalf of the respondent, and Mr Emmerson QC, on behalf of the interveners, submitted that Lambert can be distinguished on the ground that in that appeal the case made on behalf of the appellant was that it was the trial judge who had violated his Convention rights under Article 6 by directing the jury (as he was obliged to do under domestic law) that the onus of proof rested upon him to prove lack of knowledge that the bag he was carrying contained drugs, whereas in the present case the respondent claims that it was the prosecutor who violated his Convention right against self-incrimination under Article 6 by putting in evidence before the jury, in exercise of a discretion, the answers which he had been compelled to give in his examination before the Official Receiver.

99. I am unable to accept this submission. Whilst in Lambert the House was considering a claim that the trial judge had acted in violation of Article 6, the ratio of the decision given by Lord Slynn of Hadley, Lord Clyde and myself was that on an appeal after 2 October 2000 section 22(4) of the 1998 Act did not operate so as to permit a convicted person to rely on a violation of a Convention right occurring in a trial before 2 October 2000. Lord Slynn stated at p 210G:

section 22

section 7

Lord Clyde, referring to section 7(1)(b) stated at 253C:

And at 263E, referring to section 7(6), I stated:

section 22

section 7

100. It is clear, in my opinion, that this ratio governs a case where the violation of the Convention right was caused by the act of the prosecutor (whether or not acting in the exercise of a discretion) as well as a case where the violation was caused by the act of the judge.

Should the House depart from the decision in Lambert?

101. It is clear that there is a division of judicial opinion on the correctness of the decision of the majority in Lambert that the words in section 22(4) "proceedings brought by or at the instigation of a public authority" do not include "an appeal against the decision of a court or tribunal". I recognise that an argument of considerable force can be advanced in support of the view that the decision in Lambert was erroneous. This argument includes the points that the term "proceedings" usually includes an appeal from the court of first instance and that section 7(6) is not a definition section and does not purport to give exclusive meanings to "proceedings" in sub-clause (a) and "an appeal" in sub-clause (b).

102. Nevertheless having considered the matter afresh I remain, with respect, of the opinion that the contrary argument is a stronger one and that the decision of the majority in Lambert is correct. I think that when Parliament in section 7(6) refers separately to "proceedings brought by or at the instigation of a public authority" and to "an appeal against the decision of a court or tribunal", and then uses only one of those phrases in section 22 (4) (which relates directly to section 7) it is clear that section 22(4) does not relate to an appeal. Having separated the two subsets of "legal proceedings" in section 7(6) into "proceedings brought by or at the instigation of a public authority" and "an appeal against the decision of a court or tribunal", if Parliament had intended section 22(4) to apply to an appeal it would not have referred in that subsection to the first subset only. It is a well established principle that when Parliament uses words in a statute those words should be given a similar meaning in other parts of the statute unless there is some reason to give them a different meaning: see per Cleasby B in Courtauld v Legh (1869) LR 4 Ex 126, 130.

Policy considerations

103. I also think that there is an additional ground to that based on a consideration of the wording of section 7(6) and section 22(4) which supports the decision in Lambert. This ground relates to the policy to which Parliament was giving effect in enacting section 22(4). Mr Emmerson submitted in the present appeal before the House that the policy of Parliament in relation to section 22(4) was to ensure that if a public authority (including a prosecutor) brought proceedings against a citizen and prior to, or in the course of, those proceedings violated one of his Convention rights, he should be able to defend himself by relying on his Convention right even if the public authority's action in violating it had taken place before the Human Rights Act 1998 came into operation, and this policy required that this defence should be available in an appeal as well as in a trial at first instance. In my opinion Parliament did intend that a citizen whose Convention rights had been violated before the date on which the Human Rights Act came into operation and was then a defendant in a trial after that date should be able to rely on his Convention rights at that trial. However, there are strong reasons of policy, grounded in the need for certainty in the law and finality in litigation, why a conviction which was valid and lawful at the time it took place should not be set aside because of a change in the substantive law brought about by legislation.

104. In R v Mitchell [1977] 65 Cr App R 185, 189 Geoffrey Lane LJ stated:

And in R v Campbell [1997] 1 Cr App R 199, 206F Lord Bingham CJ stated:

In Minto and Cuthbert v Police [1990-92] 1 NZ BORR (cited by Lord Clyde in his speech in Lambert at para 147) the appellants had been convicted of obstructing a police officer in the execution of his duty. The Bill of Rights Act 1990 in New Zealand came into force four months after the convictions of the appellants. On the appeal by the defendants Robertson J described the argument advanced by counsel on their behalf as follows:

Robertson J rejected this argument and stated at page 214:

Therefore I do not consider that in enacting section 22(4) Parliament intended that a conviction which was validly and lawfully imposed should be quashed on an appeal perhaps many years later.

105. Mr Emmerson sought to answer this objection by submitting that appeals in respect of old convictions could be filtered out of the system by the Court of Appeal exercising its discretion to refuse leave to appeal out of time, or by the Criminal Cases Review Commission deciding, in the exercise of its discretion, not to refer old convictions to the Court of Appeal. I am unable to accept this submission. If it were to be established by a decision of this House, reversing the decision in Lambert, that section 22(4) applied to appeals to the Court of Appeal as well as to trials at first instance, I consider that where a person had been convicted before the Human Rights Act came into operation in a manner which violated his Convention rights he would have a strong argument that he should be able to rely on that violation in an appeal to the Court of Appeal. He would be able to contend that it would be an improper exercise of the Court of Appeal's discretion to refuse him leave to appeal out of time having regard to the consideration that section 22(4) applies "whenever the act in question [ie. the breach of the Convention right] took place". Where an applicant claimed that he had been convicted before 2 October 2000 in breach of a Convention right it would be difficult, in my opinion, for the Court of Appeal to formulate a principle which would permit some of those appeals to proceed out of time but which would exclude other appeals on the ground that the convictions were too old.

106. Section 9 of the Criminal Appeal Act 1995 provides:

section 1

The argument that the Commission should exercise its discretion to filter out old convictions, notwithstanding that the manner in which they were obtained might well have constituted violations of Convention rights is, in my opinion, even less persuasive than the similar argument in respect of the Court of Appeal when one considers the reasons given by the Commission for referring the case of the intervenors to the Court of Appeal. After the Commission had referred their case to the Court of Appeal in the exercise of its discretion under section 9(1) the Director of the Serious Fraud Office brought an application for judicial review against the Commission and the nature of the application was set out in the papers as follows:

107. The grounds which the Commission gave for contesting the Director's application were as follows:

108. It would not be appropriate for me to express a concluded opinion on the validity of the reasons given by the Commission, but I consider that they show the serious obstacles to an argument that, if section 22(4) applies to appeals, the Commission should not exercise its discretion to refer a conviction to the Court of Appeal where there has been or may have been a breach of a Convention right in the obtaining of a conviction a considerable number of years before the Human Rights Act came into operation.

109. In my opinion Parliament did intend that valid convictions should not be quashed years later by the Court of Appeal, but it gave effect to this intention, not by leaving it to the uncertain exercise of the discretion of the Court of Appeal or the Criminal Cases Review Commission to filter out appeals in respect of old convictions, but by wording section 22(4) so that it applied to proceedings at first instance and not to appeals. Accordingly, for the reasons which I have given, I consider that the decision of the majority in Lambert was correct.

110. I would add that if I had considered after the further argument in the present appeal that, on balance, the decision in Lambert was erroneous, I would nevertheless have been of the opinion that the decision should be followed. In Fitzleet Estates v Cherry [1977] 1 WLR 1345, 1349. Lord Wilberforce stated:

111. In my opinion the view of the majority in Lambert was an eminently possible one and should be followed for the reason stated by Lord Wilberforce.

112. Accordingly I would answer the certified question in the negative and would allow the appeal by the Crown and would set aside the order of the Court of Appeal and restore the conviction of the respondent.

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