Title of Case comment: A Retrospective Look at R v Lambert.

Completion date: 8 December 2001.

Within six months of their decision in R v Lambert [2001] 3 WLR 206, the House of Lords has revisited the subject of whether a conviction at trial prior to implementation of the Human Rights Act 1998, on 2 October 2000, can be overturned on appeal as a result of the interpretation of the law post-HRA being applied retrospectively. Mr Kansal was convicted following the admission in evidence, pursuant to Section 433 of the Insolvency Act 1986, of answers given under compulsion during bankruptcy proceedings. Following Saunders v UK (1996) 23 EHRR 313, there would be a real possibility that the Court would find that the admission of this evidence was in breach of Art. 6 of the European Convention on Human Rights. The Criminal Cases Review Commission referred the matter to the Court of Appeal as a result. The Court of Appeal allowed the appeal. The Crown appealed to the HL. There were essentially three questions: 1) whether the HL was wrong in Lambert in refusing to apply the HRA and the ECHR retrospectively on appeal; 2) whether the instant case could be distinguished from Lambert on the basis that the critical act in the instant case was the Prosecution putting in evidence the contentious material, whereas in Lambert it had been a decision of the trial judge; 3) whether, if the HL were now to decide that its ruling in Lambert was wrong, it should depart from that earlier decision, pursuant to the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

As in Lambert, so in Kansal, their Lordships do not speak with one voice. One has some sympathy with them, because not only are there powerful policy reasons for not wanting to open the flood-gates to many retrospective appeals, but also the HRA provisions relating to retrospectivity can hardly be said to be straightforward. Indeed, on such an important matter, they are labyrinthine and obscure and, in trying to understand the true effect of Section 22(4), one has to attend to further sections of the HRA: 6(1) and 6(2)(a); 7(1)(a) and 7(1)(b); 7(6)(a) and 7(6)(b). However, one has perhaps more sympathy with those seeking to unravel precisely what the law now is on this important matter and, moreover, whether it is to be taken as fixed.

The Opinions of their Lordships fall into three categories. First, Lords Slynn and Hutton thought that Lambert was probably correctly decided. Lord Hutton in particular took the ratio of Lambert to be that an appeal based on the retrospective effect of HRA was not to be permitted whether the act complained of was that of the trial judge or the prosecutor; thus there was nothing to distinguish the instant case from Lambert. Secondly, Lords Lloyd and Steyn (the latter having dissented in Lambert) thought that Lambert was incorrectly decided, but were not prepared to overrule it and they did not really enter into any analysis of whether it could be distinguished on the basis of the Court / Prosecution dichotomy. Lord Lloyd thought that the way to resolve the matter was to have a seven member House of Lords. This was not apparently administratively possible. (It is somewhat comforting that even their Lordships are in the hands of the all powerful Administration.) Thirdly, Lord Hope thought that Lambert was wrongly decided and would have overturned it. This is particularly significant, because he gave one of the speeches in Lambert and was with the majority in that case and back then he appeared to be the clearest in drawing a distinction between the act of the trial judge on the one hand and the act of the prosecutor as a public authority on the other. The overall result was that the Crown’s appeal in the instant case was allowed and the conviction was re-instated. This was because in an otherwise two-way split, Lord Hope, despite thinking that Lambert was wrongly decided, nonetheless allowed the Crown’s appeal, because he took the view that the Prosecution had no choice but to act in the way which it did in seeking to admit the evidence, given that the relevant legislation was primary legislation and that Section 6(2) of the HRA meant that both the Court and the Prosecution had to act in accordance with that primary legislation. Space prevents a full discussion of this very interesting state of affairs. However, a few brief observations can be made.

First, the current position appears to be that whether the act in question was that of the Court or the Prosecution, an appeal will not currently be allowed on the basis of the retrospective effect of Section 22(4).

Secondly, the HL was split 2:2. Only a minority of two thought Lambert was correct. Yet, the effect of the ruling in the present case is that the approach in Lambert remains the law. Moreover, it is arguable that the instant case has in fact gone further than Lambert in removing in an appeal even the act of the Prosecutor from the retrospective effect of Section 22(4) of the HRA. The only reason the Crown won the appeal was because Lord Hope, whilst siding firmly with those two Law Lords who thought Lambert was wrong, and whilst being prepared to go even further than they were and actually overrule it, nonetheless sided with the two Law Lords with whom he most fundamentally disagreed in the final decision in the case. Surely Lord Lloyd is correct in saying that the matter needs to be visited by a seven member House of Lords. Although, with such a difficult area, more voices could conceivably bring more, not less, confusion.

Finally, there is a further complicating factor buried in the speech of Lord Hope. On his analysis of Section 6(2), the critical factor in allowing the Crown’s appeal was that the Court and the Prosecution could not have acted differently in the face of primary legislation. But, in Lambert, the provision there under discussion was also primary legislation (Section 28(2) of the Misuse of Drugs Act 1977). In that case, despite saying that they could not hear an appeal based on the retrospective effect of Section 22(4) of the HRA, their Lordships had nonetheless gone on to consider Section 28(2) and concluded that it should be re-interpreted so as no longer to place a legal burden upon the accused, but only to place an evidential burden upon him. At least two interesting issues arise from this. First, Lord Hope’s reason for allowing the Crown’s appeal in the instant case would not have obtained in Lambert, since the primary legislation would not have compelled the trial judge or the Prosecution to act as they did. Thus, a majority of their Lordships in Kansal would have decided Lambert on its facts differently (despite four members of the five member courts sitting in both appeals). Surely, this state of affairs cannot remain! Secondly, in any attempt at a further similar appeal in future, it will be important first of all to establish that Section 6(2) does not on the particular facts stop the appeal at the first hurdle. Only if it can be shown that the particular act of the Court or the Prosecutor was not pursuant to primary legislation (or to secondary legislation itself dependent upon primary legislation) or, alternatively, if it can be shown that the particular act whilst pursuant to primary legislation, can be re-interpreted pursuant to Section 3(1) of the HRA, will it then be worth trying to argue that the majority view in Kansal, which was accepted to have been formed after much fuller argument presented to the Court than in Lambert, should prevail.