Glover, 'Retrospectivity and the Human Rights Act 1998'

The purpose of this paper is to examine their Lordships’ interpretation in Lambert [2001] UKHL 37, [2002] 2 AC 69, HL and in Kansal (No.2) [2001] UKHL 62, [2002] 2 AC 545, HL of the ‘retrospectivity provision’ of the Human Rights Act 1998, section 22(4), and the extent to which their analysis accords with Parliament’s intentions. Key to an understanding of these decisions is the interrelationship between sections 7 and 22(4) of the 1998 Act. I will consider their Lordships’ interpretation of this interrelationship and suggest that it was overly influenced by policy concerns: a fear of uncertainty in the law and of a flood of appeals if the Act were allowed to operate retrospectively. It will be argued that as a consequence of these misplaced concerns and a misunderstanding of the significance of the Act their Lordships erred in their analysis of section 22(4), which does not accord with Parliament’s intentions.

1. Introduction

The Human Rights Act 1998 (hereafter 'the Act') came into force on 2 October 2000. The first occasions that the House of Lords was required to consider the retrospective application of the Act were in July 2001 in Lambert [2001] UKHL 37, [2001] 3 All ER 577, HL (hereinafter ‘Lambert’) and four months later in Kansal (No.2) [2001] UKHL 62, [2001] 3 WLR 1562, HL (hereinafter ‘Kansal’). Section 22(4) of the Act was interpreted in Lambert as providing that a person cannot rely, in a post-Act appeal, on his or her rights under the European Convention on Human Rights and Fundamental Freedoms (hereafter, ‘the Convention'), in respect of a conviction which arose before the Act was introduced⁽¹⁾. In Kansal a majority of their Lordships doubted this interpretation but declined to apply the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, HL. Accordingly, for the sake of certainty in the law, Lambert was affirmed. The cases were therefore indistinguishable on the issue of retrospectivity. Thus in Kansal, somewhat confusingly, what may be described as ‘the minority view’ on the issue of retrospectivity ultimately prevailed (hereinafter, references to ‘the majority’ or ‘the minority’ will be in relation to the issue of retrospectivity, rather than the ultimate decision in Kansal).

It will be argued that their Lordships’ in both Lambert and Kansal were overly concerned with the danger of uncertainty in the law and with the proverbial ‘floodgates’ opening if the Act was allowed to operate retrospectively. With respect, it is submitted that, as a result of these concerns and a failure to appreciate the nature of the Act, their Lordships fell into error and, accordingly, their analysis of section 22(4) is inconsistent with Parliament’s intentions. Notwithstanding their Lordships’ further endorsement of Lambert and Kansal in Rezvi ([2002] UKHL 1, [2002] 1 All ER 801) and Benjafield ([2002] UKHL [2], [2002] 1 All ER 813), HL and more recently in the Guinness case, Lyons ([2002] UKHL 44, [2002] 4 All ER 1028)),, it will be argued that the Act should operate retrospectively in relation to appeals. However, this is not due to the operation of section 3(1), the central argument advanced in a recent article by Beyleveld, Kirkham and Townend (hereinafter ‘Beyleveld’) (see Beyleveld, 2002 at 192). Beyleveld argues that section 3(1) requires the Act to be “interpreted so that retrospectivity is given in post-HRA appeals, unless the Act clearly and specifically prohibits this in a way that makes it impossible”. Their Lordships rejected this argument and it is submitted that they were right to do so.

2. An Introduction to section 22(4) of the Human Rights Act 1998

In essence, section 22(4) provides that section 7(1)(b) applies retrospectively to “proceedings brought by or at the instigation of a public authority,” but not to other types of proceedings. Therefore, a person who claims that a public authority has acted (or proposes to act) incompatibly with the Convention, and so unlawfully by virtue of section 6(1) of the Act, may rely on the Convention right or rights in any legal proceedings. They may do so whenever the unlawful act occurred and even if it took place before the Human Rights Act came into force. Furthermore, as Lord Hope stated in Lambert [2001] 3 All ER 577 at 609, para 104, HL section 7(1)(b):

...can be used retrospectively in proceedings brought by or at the instigation of public authorities – that is to say, to enable a person to rely on the Convention right or rights defensively...But it is plain that section 7(1)(b) may not be used with retrospective effect in proceedings brought against a public authority. That is the effect of the concluding words of section 22(4).⁽²⁾

3. The Facts of Lambert

Lambert was a case of possession of a Class A drug with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971.The appellant was arrested in possession of a duffle bag containing two kilograms of cocaine at 76 per cent purity, which had a market value of over £140,000. His defence was that he was not aware of the contents of the bag. At trial he relied on section 28 of the 1971 Act, claiming that he neither believed, nor suspected, nor had reason to suspect that the bag contained cocaine, or any controlled drug. However, he was convicted and after the Court of Appeal dismissed his appeal against conviction, the case proceeded to the House of Lords.

The Court of Appeal certified three questions as raising issues of general public importance. The first concerned whether it is an essential element of the section 5(3) offence that the accused knows that he has a controlled drug. The second concerned whether the trial judge in summing up, and the Court of Appeal in dismissing the appeal, had both acted incompatibly with the presumption of innocence, enshrined in article 6(2) of the Convention, by requiring that section 28 of the Misuse of Drugs Act 1971 imposed a legal rather than an evidential burden on the defendant. The third related to the retrospective application of the Human Rights Act 1998⁽⁴⁾.

In relation to retrospectivity, the defence advanced a two–pronged argument. The first and more significant argument for their Lordships to consider related primarily to sections 7(1)(b), 7(6) and 22(4) of the Human Rights Act. It was argued that the combined effect of these subsections meant that a breach of the defendant’s Convention rights before the Act came into force could be challenged in the course of an appeal, after enactment. By virtue of section 3(1) of the Act, the courts must interpret legislation as compatible with the Convention, so far as it is possible to do so. Furthermore, section 6(1) requires public authorities, which include courts, to act compatibly with the Convention. Thus, the courts’ pre-Act interpretation of legislation, such as the Misuse of Drugs Act 1971, so as to impose a legal rather than an evidential burden on the defendant, could be challenged in a post-Act appeal as being incompatible with the Convention.

The second limb of the defence argument was that the House of Lords, as a public authority, was bound post-Act by virtue of section 6(1) of the Act to act in a way which was compatible with the Convention, irrespective of earlier pre-Act decisions of lower courts. Furthermore, account had to be taken of section 3(1) of the Act, which obliged their Lordships to interpret legislation in a way which was compatible with Convention rights. Thus, it was contended that the House was bound, post-Act, to examine the interpretation of the Misuse of Drugs Act 1971 propounded before enactment by the trial judge and the Court of Appeal and assess whether it was compatible with article 6(2) of the Convention. This was without reference to section 22(4) of the Act.

4. The Decision of the House of Lords in Lambert

Their Lordships were not persuaded by either of the above arguments. In relation to the first, the House held that a person who claims that a public authority, such as a court or tribunal, acted incompatibly with a Convention right before the Human Rights Act came into force, cannot rely on that in a post-Act appeal against the decision of that court or tribunal (Lord Slynn at 582, para 13; Lord Hope at 612-3, para 116; Lord Hutton at 631-2, paras 174-176).

In coming to this conclusion their Lordships placed particular emphasis on the combined construction of sections 7(6) and 22(4) of the Act, as suggested, albeit obiter, by Sir Andrew Morritt V-C in Wilson v The First County Trust Limited (No.2) [2001] 3 All ER 229 at 237, paras 20-1, CA. However, with respect, their Lordships’ reading of the Vice-Chancellor’s judgment may be criticised on two grounds.

In Lambert, only Lord Hope shared this interpretation. Lord Clyde noted the point but did “not find it necessary to determine the question whether the public authority referred to in section 7(1) and in section 7(6) and in section 22(4) requires to be the same public authority. It may be that the public authority referred to in section 7(1) can be a different public authority from that in sections 7(6) and 22(4)” (at para 139). However, Lord Hope stated, at para 109, that:

Lord Hope later resiled from that interpretation in Kansal (at para 78) and it is clear that sections 7(1)(b) and 22(4) do not require the instigator of proceedings and the party acting unlawfully to be one and the same. The Act simply states that a public authority must instigate the proceedings and that there must be an act by a public authority which is incompatible with the Convention.

Secondly, their Lordships’ reading of the Vice-Chancellor’s judgment was somewhat selective. Although they discussed the effect of section 6(1) of the Act, which formed the basis for the second limb of the defence argument, (which was not pursued in Kansal) they did not acknowledge the Vice-Chancellor’s interpretation of the effect of section 6(1). He had stated ([2001] EWCA Civ 633, para 17; [2001] 3 All ER 229 at 236):

Section 6(1) in conjunction with section 6(3)(a) – requires a court to refrain from acting in a way which is incompatible with a Convention right. If the court is to comply with that requirement it must ask itself in any case which comes before it after 2 October 2000 whether the order which it is about to make is or is not compatible with Convention rights. The relevant event, in the present case, is not the making of the agreement on 22 January 1999; the relevant event is the making of an order in this appeal.

In contrast, their Lordships in Lambert (with the exception of Lord Steyn at para 29) held that it was plain that Parliament had only intended the Act to have a limited degree of retrospectivity and that was expressly provided for by section 22(4) and not section 6(1). (Nor was section 3(1) retrospective for the same reason: Lord Hope at paras 110-111; Lord Slynn at para 11; Lord Clyde at para 142; Lord Hutton at para 170). Lord Hope thought (at paras 112-116) the defence argument, that the House was bound post-Act by section 6(1) to act compatibly with the Convention, irrespective of earlier pre-Act decisions “...inconsistent with the scheme of the 1998 Act.” (See also Lord Clyde at para 144.)

5. The Facts of Kansal

Mr Kansal had been made the subject of a bankruptcy order following the failure of his company. He subsequently deceived a building society into advancing substantial sums of money to him by making a number of false representations as to his income and status. He was convicted in February 1992 of two counts of obtaining property by deception, contrary to section 15(1) of the Theft Act 1968 and two counts under the sections 354(2) and (3) of the Insolvency Act 1986, namely, removing and failing to account for property.

At first instance it was held that section 31 of the Theft Act 1968 did not provide the defendant with any protection against the admissibility of answers given under compulsion in the bankruptcy proceedings, that is, pursuant to section 291 of the Insolvency Act 1986. Accordingly, the Crown was permitted, in accordance with section 433 of the 1986 Act, to rely on the defendant’s answers provided under compulsion. However, following the European Court of Human Rights’ decision in Saunders v The United Kingdom (1996) 23 EHRR 313⁽⁵⁾ the Criminal Cases Review Commission referred the case to the Court of Appeal, which in view of the decision in Saunders, held that the convictions in Kansal could not be regarded as safe⁽⁶⁾.

...(ii) this court, once such a reference has been made [by the Criminal Cases Review Commission] has no option, however old the case, but to declare the conviction unsafe if that is the result either of the admission of evidence obtained in breach of article 6 or of a change in the common law, which is deemed always to have been that which it is authoritatively declared to be...We reach this conclusion with no enthusiasm whatever.

6. The decision of the House of Lords in Kansal

The Crown appealed to the House of Lords on the basis that an appellant could not rely in a post-Act appeal on breaches of the European Convention in a national court in respect of a criminal conviction arising before the Human Rights Act 1998 came into force. Their Lordships unanimously allowed the appeal and the majority (with the exception of Lord Hope who argued at 1591, para 93, that as per section 6(2)(b) of the Act, the prosecutor’s act 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”) approved Lambert, holding it to be indistinguishable from Kansal, despite the fact that the allegedly unlawful acts were of a different nature: in Lambert they were judicial acts and in Kansal they were the prosecutor’s acts (Lord Slynn at para 9; Lord Lloyd at para 22; Lord Hutton at paras 98-100). Despite the decision to follow Lambert, however, the House was still divided on the retrospective application of the Act: Lords Hope, Lloyd and Steyn were in the majority in thinking that Lambert had been wrongly decided; Lords Slynn and Hutton dissented, in accordance with the views they had expressed in Lambert. However, Lords Steyn and Lloyd, whilst considering Lambert to have been wrongly decided, held that it should be followed in order to preserve certainty in the law. Lord Hope changed his opinion on retrospectivity from that which he had pronounced in Lambert (at paras 78-81). Although in Lambert he had accepted retrospective application of section 22(4) in relation to appeals from the acts of prosecutors, he had not thought that judicial acts qualified as ‘unlawful acts.’ In Kansal he described this earlier approach as ‘not satisfactory.’ Moreover, unlike Lords Steyn and Lloyd, he would also have held that their Lordships should depart from their earlier decision

7. Section 22(4) and ‘legal proceedings’

Both Kansal and Lambert turned on how section 22(4) was interpreted when read together with sections 7(1)(b) and 7(6) of the Act.⁽⁷⁾ As previously noted, according to section 7(1)(b), a person who claims that a public authority acted incompatibly with the Convention, and so unlawfully by virtue of section 6(1) of the Act, may rely on the Convention right or rights in any legal proceedings. In terms of retrospectivity, section 22(4) states that section 7(1)(b) applies “whenever the unlawful act took place,” provided the ‘proceedings’ are brought or instigated by a public authority.

Section 7(6) defines ‘legal proceedings’ in section 7(1)(b) and it is important to recognise that the definition is not exhaustive⁽⁸⁾. Section 7(6) cites two examples of qualifying legal proceedings, but it is clear that the definition is left open-ended and that there may be other examples, for instance, those brought by private persons (non-public authorities). However, their Lordships in Lambert (Lord Slynn at para 9; Lord Clyde at para 140; Lord Hutton at para 172) and a ‘minority’ of their Lordships in Kansal, (Lord Slynn at para 8 and Lord Hutton at para 99) appeared to overlook this and placed particular emphasis on the construction of sections 7(6) and 22(4) when combined.

Their Lordships noted that the wording of the first part of section 22(4) mirrored exactly that of section 7(6)(a) but not that of section 7(6)(b). They considered that this partial reflection of section 7(6) in section 22(4) was ‘significant’ in so far as it must have been Parliament’s intention to give section 7(1)(b) a retrospective effect only with regard to “proceedings brought by or at the instigation of a public authority,” as per section 7(6)(a), and not in relation to “an appeal against the decision of a court of tribunal,” as per section 7(6)(b).

However, with respect, it is contended that the interpretation of sections 7(6) and 22(4) is mistaken and that section 22(4) should be applicable to appeals. Once it is appreciated that the definition of legal proceedings in section 7(6) is not exhaustive, as was conceded by Lord Hope in Kansal (at para 71) the apparent significance of this partial reflection of section 7(6) in section 22(4) is diminished. Furthermore, as Lord Hope commented in relation to ‘proceedings’ (at para 69:

However, with respect, the interpretation of ‘legal proceedings’ advanced by Lord Hope in Kansal was rather convoluted. He argued that the word ‘proceedings’ in section 7(6)(a) was a shorthand method of referring back to the words ‘legal proceedings’ in section 7(1)(b). Therefore, the reference to an ‘appeal’ in section 7(6)(b) “is available to explain” the meaning of ‘proceedings’ in section 7(6)(a). He stated “The effect of section 7(6)(b) is that the word ‘proceedings’ in section 7(6)(a) includes an appeal in those proceedings” (at para 71). That is, he sought to find that (b) was contained within (a) on the basis that the two subsections are not mutually exclusive. This was despite the fact that section 7(6) opens with the words “In subsection (1)(b) ‘legal proceedings’ includes.” With respect, it seems self-evident that the ‘proceedings’ referred to in section 7(6)(a) are the ‘legal proceedings’ in section 7(1)(b).

Indeed, it is suggested that there is a simpler interpretation of ‘legal proceedings’ in the context of sections 22(4), 7(1)(b) and 7(6) and much depends on how section 22(4) is read. The first thing to note is that section 22 is clearly an explanatory section. It is headed: “Short title, commencement, application and extent.” Its subsections then explain as follows: (1) how the Act is to be cited; (2) which sections will initially come into force; (3) when the other provisions will be enacted; (4) how section 7(1)(b) is to apply retrospectively and in sub-sections (5)-(7), the extent of the Act. The section, as a whole, is more readily understood if it is read as an answer to a set of questions: (1) “How should the Act be cited?” (2)-(3) “When will it come into force?” And most crucially for present purposes: (4) “How does section 7(1)(b) apply?” Or, more specifically, “Does section 7(1)(b) apply retrospectively?” Subsection (4) may be interpreted as providing the answer in two parts:

Unfortunately, subsection (4) is constructed so that part (ii) is mentioned first. It is only in the second clause of the subsection that part (i), the retrospective aspect, is mentioned and it is suggested that it is partly as a consequence of this construction that the majority of their Lordships in Lambert and ‘the minority’ in Kansal fell into error. Presumably subsection (4) was constructed in this way in order to emphasise that the Act will only have retrospective effect in relation to proceedings brought or instigated by a public authority. This also tends to support the interpretation of subsection (4) which reads part (ii) as if it includes the word “provided.” However, it is submitted that section 22(4) is more easily understood if first, it is read as an answer to a question; second, if part (i) is recognised as being conditional on part (ii); and third, if the two clauses in subsection (4) are reversed in the way indicated above.

Section 22(4) does not define ‘proceedings,’ as Lord Hope noted in Kansal (at para 57). However, it is suggested that it is unnecessary for it to do so. Its sole purpose is to give retrospective effect to section 7(1)(b), conditional on the relevant proceedings being brought or instigated by a public authority. Therefore, any ‘proceedings’ must be defined in relation to section 7(1)(b) and not section 22(4). It is submitted that the proceedings referred to in section 22(4) are the ‘legal proceedings’ referred to in section 7(1)(b) which are partially defined therein by section 7(6).

It may be, although this point is unclear, that this was what Lord Hope meant to imply when he stated that the word ‘proceedings’ referred to in section 7(6)(a) was a “shorthand way of referring back to the words ‘legal proceedings’ in section 7(1)(b)” (Kansal at para 71). If the word ‘proceedings’ is shorthand for ‘legal proceedings’ in this context, it would also make sense for the same to apply when the word ‘proceedings’ is used in section 22(4)⁽⁹⁾.

Even if section 7(6) were not, in effect, the appropriate defining section for the ‘proceedings’ referred to in section 22(4), it is submitted that Lord Slynn is correct that, “in ordinary parlance an appeal would be considered as a part of legal proceedings” (Kansal at para 8). Furthermore, if we were still left in any doubt, Lord Steyn states that “the word ‘proceedings’ covers both trials and appeals. Section 7(6) does not require a different approach” (Kansal at para 26).

It is only speculation, but it may be fair to suggest that Lord Hope in Kansal, by arguing that subsections (6)(a) and (b) are not mutually exclusive and by then placing appeals within subsection (6)(a), was attempting to ensure that the proceedings referred to in section 22(4) could only be proceedings brought or instigated by a public authority. However, with respect, this does not appear to be necessary in order to achieve this purpose and seems to overlook the possibility of ‘other proceedings,’ as yet undefined by the partial definition in section 7(6), falling within ‘legal proceedings’ for the purposes of section 7(1)(b). Crucially, as section 7(6) is left open-ended these ‘other proceedings’ may not have been brought or instigated by a public authority. In ordinary prospective proceedings under section 7(1)(b) that would not present a problem, so long as it was a public authority which had acted (or proposed to act) contrary to section 6(1) of the Act. If Parliament had only intended a person to be able to rely upon section 7(1)(b) if the proceedings had been instigated or brought by a public authority it could have expressly provided for this in section 7(6). Instead, as noted above, the definition is left open-ended. In relation to what may be described as ‘retrospective’ proceedings (post-Act proceedings relating to pre-Act conduct rendered unlawful by section 6(1)) the problem is adequately dealt with by section 22(4), which expressly limits retrospective application of section 7(1)(b) to those proceedings brought or instigated by a public authority.

Accordingly, it is section 22(4) of the Act which limits the extent to which proceedings may be brought in respect of pre-Act conduct, now rendered unlawful by section 6(1), by providing that such cases may only be brought if the proceedings were instigated or brought by a public authority. Lord Hope sought to hand this task to section 7(6) but, with respect, this is, on the one hand, inconsistent with the scheme of the Act, and on the other, simply unnecessary.

Therefore, it is suggested that Lord Hope’s approach is mistaken and the distinction on the issue of retrospectivity drawn in Lambert and by the ‘minority’ in Kansal between sections 7(6)(a) and 7(6)(b) in relation to section 22(4), is artificial. It is submitted that, as Lord Lloyd noted in Kansal, the distinction was not justified on the basis of logic but, “...on the policy ground that convictions prior to the coming into force of the Act should not be disturbed” ( at para 14). The decisions in Lambert and Kansal restrict the retrospective impact of the Human Rights Act and are overly influenced by policy concerns, first, the fear of uncertainty in the law and second, the desire to avoid an anticipated flood of appeals (Lord Hutton in Lambert at para 173).

8. The Fear of Uncertainty in the Law

Lord Slynn in Lambert (at para 10) referred to the danger of “great confusion and uncertainty.” Lord Clyde had similar concerns (para 143) and Lord Hutton (para 173) indirectly approved Rose LJ’s comments in the Court of Appeal referred to above. It is suggested that their Lordships’ concerns in Lambert and Kansal about retrospectivity and uncertainty in the law were, in the first place, misplaced⁽¹⁰⁾ and, in the second place, derived from the related but separate debate regarding the presumption against retrospective application of the criminal law. In English law there is a well-established presumption⁽¹¹⁾, reinforced by article 7(1) of the European Convention on Human Rights, that, in the absence of express words to the contrary , penal provisions in a statute are not intended to have a retrospective effect (Waddington v Miah [1974] 1 WLR 683. Also see Lindley LJ in Lauri v Renad [1892] 3 Ch 402 at 411; Gardner v Lucas (1878) 2 App Cas 582, Lord Hagan at 601; In Re Joseph Suche & Co Ltd (1875) 1 Ch D, Sir George Jessel MR at 50). However, it is contended that this does not apply to the Human Rights Act. Beyleveld argued (2002 at 186) that the reason for this is

However, with respect, it is contended that the more significant and compelling reasons for the presumption not to apply are, in fact, legal reasons. There is no need to appeal to policy reasons or the philosophical reasons outlined by Beyleveld (2002 at 190) derived from Lon Fuller’s The Morality of Law. The policy reasons referred to are valid to some extent – convictions secured in contravention of a Convention signed half a century ago should not be upheld and there is a danger that if unfair trials in the past are countenanced, the UK may not appear to be ‘civilised’, whatever that means. However, greater issue is taken with Beyleveld’s interpretation of section 3(1) of the Act and the argument that because this section’s interpretative obligation applies to the Act itself this supports the case for the Act applying to pre-Act appeals retrospectively.

In this regard, section 3(1) states, in effect, that “so far as it is possible to do so” the Human Rights Act “must be read and be given effect in a way which is compatible with the Convention rights". If the phrase “read and given effect” is taken to mean “interpreted,” as suggested by Marshall (1998 at 169) section 3(1) may be understood as simply saying that the Act must be interpreted compatibly with Convention rights. The same applies if, as Bennion suggests (2000 at 87) the phrase is taken to mean “give it a legal meaning,” which is compatible with the Convention.

If the phrase is taken to mean that the Act must be “read and have its purpose put into effect” (which is what Beyleveld appears to be arguing) it is saying something more. Beyleveld stresses that because section 1(2) specifies that the Convention rights referred to in the Act are to “have effect for the purposes of this Act” that this means that the courts must, so far as possible, “give effect” to the purpose of the Human Rights Act, which is to give effect to Convention rights, unless the Act clearly and specifically prohibits this in a way that makes it impossible. Thus, the Act may apply retrospectively to pre-Act appeals in order to give effect to Convention rights, such as the right to a fair trial under article 6⁽¹²⁾.

However, it is submitted that the link made between section 1(2) and section 3(1) is artificial and distorts the meaning of section 3(1). That was their Lordships’ finding in Lambert. Lord Clyde noted at para 142: “I am not persuaded that there is any ‘Convention right’ which requires appeals to be determined in that way,” that is, subject to retrospective application of the Act. “It is to be remembered that Article 13 of the Convention is not included within the ‘Convention rights’ for the purposes of the 1998 Act”. Similarly, Lord Slynn, at para 11 found this interpretation of section 3(1) to be contrary to the scheme of the Act, which made section 22(4) the retrospective provision (albeit not applicable to post-Act appeals here). Lord Hope at paras 110-111 and Lord Hutton at para 170 agreed with their colleagues, whilst Lord Steyn did not consider the issue.

If the section is interpreted as saying that the Human Rights Act must be interpreted in a way which is compatible with Convention rights it is hard to see which Convention right has been infringed by failure to apply the Act retrospectively. Their Lordships alluded to article 13 but this was not specifically incorporated into the Act by the Government and is not a ‘Convention right’ for the purposes of the Act. Even if section 3(1) is interpreted as per Beyleveld, the interpretation is incomplete as, it is submitted, the section would be read as saying, in this context:

That is, the giving effect to Convention rights must be done in such a way that it is compatible with Convention rights. Thus, a useful question might be: ‘Is the failure to give effect to Convention rights retrospectively incompatible with Convention rights?’ Again, on this interpretation, it is difficult to see how retrospective application is contrary to Convention rights other than in relation to article 13, which was not incorporated into the Act and is not a ‘Convention’ right for the purposes of the Act.

Turning now to the legal reasons for finding that the presumption against retrospectivity does not apply in this context, the Human Rights Act is not part of the criminal law and is not ‘penal’ in its character. Thus, it is submitted that the presumption does not apply to the Act. Furthermore, an old distinction, which is instructive here, is that between ex post facto⁽¹³⁾ and retrospective statutes. The distinction was drawn by Chase J in the American case of Calder v Bull (1798) 3 Dallas (US) 386 at 301 and approved in Phillips v Eyre (1870) LR 6 QB 1 at 26:

Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a general good rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion and pardon. They are certainly retrospective and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition⁽¹⁴⁾, that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction...there is a great and apparent difference between making an unlawful act lawful and making an innocent action criminal and punishing it as a crime.”

In the introduction to the White Paper: Rights Brought Home: The Human Rights Bill, the Government stressed the importance “which it attaches to the maintenance of basic human rights in this country, and that the time has come to ‘bring rights home’.” It is therefore submitted that the Human Rights Act may properly be described as “justly and for the benefit of the community and also of individuals” applying retrospectively and that, accordingly, the Act is not ex post facto law.. There is also support for this view from Canadian case law, and this was the substance of Wilson J’s argument in his powerful, albeit dissenting, judgment in Stevens concerning the Canadian Charter of Rights and Freedoms ([1988] 1 SCR 1153 at 1172:)

Should the interpretation of the Charter be guided by these rules of statutory construction [the presumption against retrospectivity]? Or are there material differences between the Charter and ordinary legislation which makes them inappropriate? The most fundamental difference is that while many statutes impose penalties, duties or disabilities on citizens, the Charter guarantees rights. Maxwell (St J Lagan, 1969 at 218) ...points out that the presumption against retrospective operation has traditionally been applied in cases where retrospective operation ‘would prejudicially affect vested rights or the legality of past transactions, or would impair contracts, or would impose new duties or attach new disabilities in respect of past transactions’. These considerations do not apply where a citizen is asserting a Charter right.

The rationale for the presumption against retrospective application of criminal law is the need for certainty in the law, so as to enable those likely to be affected by a law to be capable of understanding it and regulating their conduct to avoid breaking it (Sunday Times v UK (1979-80) 2 EHRR 245). Absolute certainty is not required but it is considered that individuals should be able to foresee, with a reasonable degree of accuracy, the consequences of their actions (Sunday Times v UK (1979-80) 2 EHRR 245 at 271). In relation to this need for certainty it is contended that the Human Rights Act was not designed to create entirely new and unexpected rights. It gave effect to existing rights, consistent with the State’s treaty obligations under article 13 of the Convention to provide effective remedies in domestic law where proceedings have been brought or instigated by a public authority. As the United Kingdom has been subject to the Convention since 1953, the rights incorporated therein should have been respected since that date even if not part of domestic law. Accordingly, the consequences of permitting a person to rely in post-Act appeals on his or her rights under the Convention in respect of a pre-Act conviction should have no impact on a person’s understanding or ability to regulate his or her conduct in the future. That might not be the case if it were being suggested that this was the first of a number of international human rights treaties that are going to be ‘incorporated’ into English law. However, it is not apparent that it was this concern which led their Lordships to restrict the retrospective impact of the Act.

The status of the Convention is also a factor which distinguishes the United Kingdom position from that of Canada and New Zealand, which was referred to by Lord Clyde in Lambert at para 147, as authority for his refusal to condone retrospective application of the Act to appeals. The Canadian Supreme Court in Stevens⁽¹⁶⁾ held that The Charter of Rights and Freedoms did not apply retrospectively. Stevens was referred to with approval by Robertson J in the New Zealand case Minto and Cuthbert v Police [1990-92] 1 NZBORR 208 at 215 with regard to the New Zealand Bill of Rights Act 1990, which was also held not to have retrospective effect. However, in neither jurisdiction was there an international obligation to follow a human rights convention. Furthermore, in neither piece of legislation is there an equivalent to section 22(4) dealing with retrospectivity (as noted by Beyleveld 2002 at 188).

It is submitted that the Human Rights Act is not ex post facto law and so is not covered by the presumption against retrospectivity. It is also clear that the consequences of permitting a person to rely in post-Act appeals on his or her rights under the Convention as a defence in respect of a conviction which arose before the Act was introduced, do not pose the same serious problems for the courts as retrospective application of the criminal law. As Chase J noted above in Calder v Bull, “...there is a great and apparent difference between making an unlawful act lawful and making an innocent action criminal and punishing it as a crime.”

Furthermore, the primacy of the Convention would be demonstrated and that the ‘human rights culture,’ which the Government apparently wishes to foster⁽¹⁷⁾, would be enhanced by permitting retrospective application of the Act in the form described. In turn, it is suggested, this would lead to greater and not less certainty in the law. The danger may be that permitting appellants to rely, in post-Act appeals, on pre-Act breaches of the Convention would lead to the proverbial ‘floodgates’ opening. However, that is a different argument and it is worth bearing in mind that, in common with the dire warnings of chaos made before the implementation of the Act, this danger may be overstated⁽¹⁸⁾.

9. The ‘Floodgates’ Fear

The second major policy concern which, it is suggested, pre-occupied their Lordships was the wish to avoid an anticipated flood of appeals. Rose LJ in the Court of Appeal in Kansal had been concerned that, “the consequential prospective workload for the Criminal Cases Review Commission and for this court is alarming” ([2001] 3 WLR 751 at 761). His fears are more vividly encapsulated in the following passage at 761C:

Leaving aside colourful historical examples such as Sir Thomas More, Guy Fawkes and Charles I, all of whom would have benefited from Convention rights, until the Criminal Evidence Act 1898 no defendant was permitted to give evidence on his own behalf. That is a clear breach of article 6. Many examples in the 20th century of other rules and procedures which, viewed with the wisdom of hindsight, were in breach of the Convention could be given.

However, the effectiveness of such a filter is open to question. As Lord Hutton noted in Kansal, a person would have a strong argument on an appeal against a decision of the Court of Appeal if the latter exercised its discretion in this way when redress appeared to be available under the Act (at para 105). Similarly, if the Criminal Cases Review Commission refused to make a reference, its decision could be subject to an application for judicial review, as was, albeit for different reasons, the reference in Kansal. Furthermore, in the face of an application by the Serious Fraud Office for judicial review of its decision in Kansal, Lord Hutton detected a marked reluctance on the part of the Commission to exercise its discretion not to refer cases (at para 107).

Finally, it should not be overlooked that the effect of Kansal is to exclude both criminal and civil appeals from the retrospective effect of section 22(4). As Lord Hope commented in Kansal, by restricting the scope of the section their Lordships have “pre-empted the question whether section 22(4) applies to civil appeals, to which concern about past convictions does not apply” (para 54)⁽¹⁹⁾.

Was this Parliament’s intention? It is contended that, despite their Lordships’ interpretation of ‘legal proceedings’ outlined above, “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” (Lord Hope at para 54). Their Lordships’ fears may have been understandable but predictions of chaos in the courts from a flood of claims after implementation of the Act have not been fulfilled and with respect, it is submitted that closer regard should have been given to Parliament’s intentions in enacting the legislation.

10. What was Parliament’s Intention?

It has already been noted that there is a presumption in English law that, in the absence of express words to the contrary in a statute, penal provisions are not intended to have a retrospective effect. That is, the presumption against retrospectivity may be rebutted by express statutory provision and it may also be implied from the language used in a statute that the legislature intended a particular section to have a retrospective operation⁽²⁰⁾.

Unfortunately, their Lordships were not aided in determining Parliament’s intention in so far as, somewhat surprisingly, there was no debate regarding the effect of section 22(4) in Parliament. Nevertheless, we know that the former state of the law was that the United Kingdom had been subject to the European Convention since 1953, although the Convention was not part of domestic law. In addition, it may be a fair indication of the Government’s view that the Attorney-General’s ‘Points for Prosecutors’ document (‘Points for Prosecutors,’ September 2000, http://www.lslo.gov.uk/index.htm) is quite clear as to the anticipated effect of the legislation. This set of guidelines was drafted prior to the enactment of the Human Rights Act, and was “developed to assist prosecutors in providing a consistent response to challenges to a selection of legislative provisions where Convention issues are likely to be raised” (para 5). It refers to section 7(1)(b) and continues (paras 28-30):

It is perhaps rather surprising to note here, as both Lord Lloyd (para 18) and Lord Hope (para 52) did in Kansal, that neither of these comparatively recent and authoritative decisions, nor the comments of Lord Woolf, the current Lord Chief Justice, in Benjafield [2001] 2 Cr App R 87, CA, all favouring ‘retrospective application’ of the Human Rights Act to appeals, were accorded the importance in Lambert that one might have expected⁽²¹⁾. Lord Hope, with the benefit of further consideration, did note in Kansal at para 52:

It is contended that although section 22(4) lacks clarity and would, as suggested above, benefit from rearrangement, the legislation can be interpreted in a much plainer way than their Lordships achieved in Kansal and Lambert. The courts have, on occasion, appeared willing to read section 22(4) expressly, but in The Home Office v Mary Jane W and Alan Joseph W [2001] EWCA Civ 2081; [2002] The Times, January 4, CA, this was in order to avoid retrospectivity in relation to section 3 of the Act.

It is submitted that Parliament’s intention to make the Act retrospective was fairly apparent from the Act or at least through “necessary implication”(See St J Lagan 1969 at 215) and that their Lordships’ in both Lambert and Kansal were overly influenced by policy concerns. Furthermore, with respect, it also appears that they failed to recognise the significance of the Act and this also led them to restrict the retrospective impact of the Act.

11. The Significance of the Human Rights Act 1998

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.

In Lambert both Lord Hutton (at para 173) and Lord Clyde (at para 136) argued that Parliament’s intention that the Act should not apply to post-Act appeals against pre-Act conduct, which was incompatible with the Convention, could be inferred from the delayed commencement of the majority of the Act’s sections until 2 October 2000. They suggested that Parliament delayed commencement because it wanted to give public authorities the opportunity to make their acts and procedures compliant with the Convention. Allied to this argument was the common sense notion, again present in Lambert, (Lord Hope at para 99) that by enacting the Human Rights Act 1998 the Government intended to ‘bring rights home’ and therefore must have intended a particular date for the homecoming, that is 2 October 2000. Thus, pre-Act conduct should not be questioned in a post-Act appeal.

However, as previously noted, because the United Kingdom has been subject to the Convention since 1953, the rights incorporated in the Convention should have been respected since that date. The Human Rights Act did not create new rights, but rather, gave further effect to already existing rights. The Lord Chancellor stated during the second reading of the Bill, “We are not ceding new powers to Europe. The United Kingdom already accepts that Strasbourg rulings bind” (582 HL Official Report (5th series), col 1228 (3 November 1997)). Furthermore, the White Paper, Rights Brought Home: The Human Rights Bill preceding the Act expressly referred to the fact at para 1.14 that:

Part of the Government’s justification for the Human Rights Act 1998 was that, despite the contention of the Daily Mail to the contrary (see Heathcoat Amory (2000)), what was being introduced was not a foreign charter but a convention, once described by the former Conservative MP Sir Edward Gardiner speaking on the introduction of a Private Member’s Bill on incorporation of the Convention, as one whose language is mainly of the English common law, which “...echoes right down the corridors of history. It goes deep into our history and as far back as Magna Carta” (HC Deb vol 109, col 1224, 6 February 1987). Therefore, it is submitted that the rationale for section 22(4) and the Act in general should have been apparent from the outset and Ashworth understandably questions (2002 at 500) “...the justice of allowing convictions to remain undisturbed even though they are based on a breach of a Convention which the United Kingdom ratified half a century ago.”

Furthermore, the fact that the purpose of the Act, as stated in its preamble, was “to give further effect to rights and freedoms” guaranteed under the Convention (Lambert per Lord Clyde at para 135) rather than to create entirely new rights (as The Lord Chancellor, Lord Irvine noted during the third reading of the Bill (585 HL Official report (5th series) col 755 (5 February 1998)) has implications for the presumption against retrospective application of the law. Even if it were to be conceded that the Act is caught by the presumption there is a well-established exception, in addition to the express and implied provision already referred to above, which arguably applies to the Act. “Alterations in the form of procedure” and not in substantive rights, “ are always retrospective, unless there is some good reason or other why they should not be” (Gardner v Lucas (1878) 2 App Cas 582, Lord Blackburn at 603) as they are “assumed to be for the better. They are also neutral as between parties, merely holding the ring” (See Bennion 1997 at 623).

The effect of this exception has usually been to cause changes in procedure to apply to pending actions, such as in Blyth v Blyth [1966] AC 643 at 666 where section 1 of the Matrimonial Causes Act 1963 was held by the House of Lords to apply to all cases after its enactment, even if the events in question pre-dated its coming into force. The introduction of the Human Rights Act was essentially a procedural change, in as much as its intention was, as has been noted, to give greater effect to the Convention in domestic law. Instead of parties who wish to raise Convention points being obliged to take their cases to Strasbourg they can now raise them in the domestic courts. Therefore, it is submitted, permitting a person to rely in post-Act appeals on his or her rights under the Convention in respect of a pre-Act conviction is a procedural change and one caught by this exception to the presumption against retrospectivity.

This seems a particularly important argument in relation to the second limb of the defence’s argument in Lambert - that the House of Lords, as a public authority, was bound post-Act by virtue of section 6(1) of the Act to act in a way which was compatible with the Convention, irrespective of earlier pre-Act decisions by inferior courts. For fear of introducing retrospectivity “by the back door” their Lordships declined to consider themselves bound to act compatibly with the Convention. That is, they overlooked an important procedural change that was clearly applicable to the appeal before them even though it could have qualified as an exception to the presumption against retrospectivity. Support is lent to this argument by Wilson J’s dissenting judgment in the Canadian case R v Stevens [1988] 1 SCR 1153, where he noted at 1169 that “a distinction is made at common law between matters of substance and matters of procedure,” as outlined above. He concluded that no issue of retrospectivity was raised in that case because the Canadian Charter of Rights and Freedoms was in full force at the time of the trial when the issue was before the court. The same could be said for both Lambert and Kansal, as their Lordships were required to act compatibly with the Convention.

12. Anomalies Resulting from the Judgment

First, although a prosecution appeal by way of case stated, against an acquittal either in the Crown Court or magistrates’ court is usually described as an ‘appeal’ it may also be described as a separate proceeding by a public authority, as was accepted by the Crown in Kansal. Therefore, an individual can rely on a violation of his or her Convention rights prior to the Act coming into force if the Crown appeals by way of case stated. However, the same individual cannot rely on such a violation in an appeal by way of case stated against his or her conviction. This is because such proceedings can only be described as an appeal and not as a separate proceeding by a public authority.

Secondly, a reference to the Court of Appeal by the Attorney-General, under section 36 of the Criminal Justice Act 1988, for the review of a sentence which is argued to be unduly lenient qualifies as a separate proceeding by a public authority. Therefore, in this context, an individual can rely on a violation of his or her Convention rights prior to the Act coming into force. However, the same individual cannot rely on such a violation on an appeal against his or her sentence under section 9 of the Criminal Appeal Act 1968.

Third, Lord Hope argued that a person who was successful on appeal against a conviction before the Act came into force would be able to rely on violations of Convention rights at any retrial, having been previously unable to rely upon them for the purposes of the appeal. He regarded it as anomalous that an individual would have to wait until any retrial before canvassing violations of Convention rights, which could have been raised during an appeal.

Fourth, there is the problem of civil appeals in cases where proceedings have been brought by a public authority. Where proceedings were based on conduct which occurred before the Act came into force, and which the defendant says was a violation of his or her Convention rights, the defendant would not be permitted to rely on this as a ground for appeal. Equally, if the defendant had been successful and the public authority had appealed after enactment, the defendant would not be able to rely on the violation because section 22(4) does not apply to appeals.

13. Conclusion

It is submitted that their Lordships’ decision in Kansal to follow the view of the majority in Lambert is to be regretted and will result in anomalies and a “continuing residue of non-compliant decisions.” A majority of their Lordships doubted Lambert on the issue of retrospectivity but were too influenced by policy concerns. They were determined to preserve certainty in the law despite the construction of the Act, which suggested retrospectivity had been provided for and despite the exceptional nature of the Act itself. As was noted by Lord Hope, in the context of the development of Human Rights Act law in its early stages and the wider public interest “...correction is more desirable than consistency” (para 53). However, their Lordships’ refusal to sanction the use of section 3(1) to rebut the usual presumption against retrospectivity, as argued for by Beyleveld (2002), is surely correct. It is still to be hoped, as suggested by Lord Lloyd (para 19) that the matter may be finally resolved by a panel of seven Law Lords. Following the decision in Rezvi and Benjafield and the recent failure of the Guinness defendants’ appeal in Lyons where the House endorsed their decisions in Lambert and Kansal, (although section 22(4) was not specifically argued before their Lordships) the prospect of challenges to the decision have become a more distant prospect. Of course there remains the prospect of an appeal to Strasbourg on the basis of the breach of article 6(2) but, as that has not been the focus of this article, no conclusion is ventured on that substantive point.

Bibliography

⁽¹⁾Described by Lord Hope in Kansal as the ratio for the decision of the majority, although he reached his decision in Lambert by a different route “...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 not by a trial court]” [2001] UKHL 62 para 34.

⁽⁴⁾The certified question relating to retrospectivity was: “Is a defendant whose trial took place before the coming into force of sections 6 and 7(1)(b) of the Human Rights Act 1998 entitled, after they come into force, to rely, in the course of an appeal, on an alleged breach of his Convention rights by the trial court or an investigating or prosecuting authority?”: see para 24. However, as was noted by Lord Slynn at para 8 and Lord Clyde at para 138, the focus was on the conduct of the trial court and the Court of Appeal rather than the investigating or prosecuting authorities. This was in contrast to Kansal, where the focus was on the latter.

⁽⁵⁾The European Court held, “although not specifically mentioned in Article 6 of the Convention the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.” The Court went on to hold that due to the privilege against self-incrimination, answers, which were compelled in a non-judicial investigation under the auspices of section 434 of the Companies Act 1985, should not be admissible.

⁽⁸⁾That it was Parliament’s intention to leave section 7(6) open-ended is illustrated by the comments of the then Parliamentary Under-Secretary of State for the Home Department, Mike O’Brien MP, who said during the committee stage of the Bill in the House of Commons that criminal proceedings were covered as ‘legal proceedings,’ either because they are brought by a public authority or because (in the case of a private prosecution) section 7(6) is not an exhaustive definition of legal proceedings (HC Deb vol 314, col 1057, 24 June 1998).

⁽⁹⁾It is worth noting here that their Lordships might also have detected a certain ambiguity in relation to what qualify as ‘proceedings’ elsewhere in the Human Rights Act. Section 5(2) permits Ministers and other State officials to be joined in proceedings where a declaration of incompatibility is being considered. Section 5(4) states that: “A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2) may, with leave, appeal to the House of Lords against any declaration of incompatibility made in the proceedings.” Section 5(5) then states that “In subsection (4) – ‘criminal proceedings’ includes all proceedings before the Courts-Martial Appeal Court.” It is submitted that, in the same way that section 22(4) refers to ‘proceedings’ and not specifically ‘legal proceedings,’ partially defined in section 7(6), section 5(4) refers to ‘proceedings’ and means the ‘criminal proceedings’ mentioned earlier in the subsection and, more importantly, the ‘criminal proceedings’ defined by subsection (5). The parallels with the interrelationship between sections 22(4), 7(1)(b) and 7(6) are plainly not exact, but there is, at least, some similarity in the way that ‘proceedings’ are understood in section 5 that should inform our understanding of sections 22(4), 7(1)(b) and 7(6). What is meant by the word ‘proceedings’ in section 5(4) is plain and it is submitted that its meaning in section 22(4) is equally unambiguous.

⁽¹⁰⁾See Ashworth (2002) where he questions “the high value placed on certainty in the criminal law, when on two previous occasions the House of Lords has recognised a mistake and has undone it within the year – on the mental element in murder, Moloney [1985] AC 905 and Hancock and Shankland [1986] AC 455 and on impossibility in attempted crime, Anderton v Ryan [1985] AC 560 and Shivpuri [1987] 1 AC 1. None of their Lordships discussed these decisions, or recognised any special features that should have a bearing on the doctrine of precedent in criminal cases.”

⁽¹⁶⁾The case concerned section 7 of the Canadian Charter of Rights and Freedoms that: “Everyone has the right to life, liberty and security and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The defendant was convicted of unlawful sexual intercourse with a female under the age of 14 whom was not his wife, contrary to section 146(1) of the Criminal Code. The offence was said to have occurred before the Charter of Rights came into force but the trial was after enactment. The defendant argued that he should have been entitled to use a defence of honest mistake of fact concerning the girl’s age at trial, as he would have been after the Charter came into force. However, the majority in the Supreme Court held that this would have resulted in a retrospective change in the substantive law as the ‘defence’ was argued to constitute part of the offence – “whether or not he believes that she is fourteen years of age or more.” Accordingly, they dismissed the appeal.

⁽²⁰⁾Also see the statement in St J Lagan (1969) at p.215: “It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication”, judicially approved in, for example, In Re Snowdon Colliery Co Ltd; Snowdon Colliery Co Ltd v South-Eastern Coalfield Extension Co Ltd [1925] 94 LJ Ch 305; Carson v Carson [1964] 1 WLR 511 at 516 and R v Stevens [1988] 1 SCR 1153 at 1170.

⁽²¹⁾However, it should be noted that Lord Woolf expressed some doubts in the Court of Appeal in Lambert [2001] 1 Cr App R 205 at 216 whilst, ultimately, following Lord Steyn in Kebilene: “It has...been accepted by all parties that because of section 22(4) together with section 7 and section 8 of the 1998 Act we have to approach the safety of any conviction as if the Act had been in force when the judge summed up. This, of course, was not the situation and we have reservations as to whether Parliament could have intended such a result. It does, however, receive indirect support from Lord Steyn in Kebilene ([2000] 1 Cr App R 275 at 312) and we accept it as correct so far as Article 6 is concerned.”

United Kingdom Journals

Retrospectivity and the Human Rights Act 1998

Richard Glover LLB, MSc, Cert Ed, Solicitor.

Summary

Contents