Regina v. Kansal

Section 22(4) of the Human Rights Act 1998, read with sections 7(1)(b) and 7(6), does not permit a convicted person to rely on an alleged Convention breach at a trial before the Act’s commencement merely because the appeal is heard afterwards. An appeal following a Criminal Cases Review Commission reference remains the convicted person’s appeal. The rule cannot be avoided by distinguishing between acts of the prosecutor and acts of the trial judge, or between discretionary and mandatory acts.

The House should not depart from a very recent, clear decision on a transitional provision without compelling justification. This remains so where further argument persuades some members that the earlier reasoning was mistaken.

The respondent was convicted in 1992 of obtaining property by deception and insolvency offences. The prosecution relied on answers which he had been compelled to provide during bankruptcy proceedings. Their admission under section 433 of the Insolvency Act 1986 was upheld on his original appeal: [1993] QB 244.

The Criminal Cases Review Commission later referred the convictions to the Court of Appeal. That court held that the compelled answers were inadmissible in the light of article 6 and quashed all the convictions: [2001] 3 WLR 751. The Crown appealed.

The central question was whether a defendant tried before sections 6(1) and 7(1)(b) of the Human Rights Act 1998 commenced could rely, in a later appeal following a Commission reference, on an alleged Convention breach at the trial.

1. Appeal allowed unanimously. The House set aside the Court of Appeal’s order and restored the respondent’s convictions. Lord Slynn, Lord Lloyd, Lord Steyn and Lord Hutton held that the governing decision was R v Lambert [2001] 3 WLR 206. Lord Hope allowed the appeal on a different ground.

2. The controlling basis. Lord Slynn and Lord Hutton considered R v Lambert correctly decided. Section 22(4) of the Human Rights Act 1998, read with sections 7(1)(b) and 7(6), distinguished proceedings brought by or at the instigation of a public authority from an appeal. It therefore did not permit a person appealing after commencement to rely on a Convention violation alleged to have occurred at a pre-commencement trial.

   Lord Lloyd and Lord Steyn considered the statutory reasoning in R v Lambert mistaken. They nevertheless joined Lord Slynn and Lord Hutton in holding that the House should follow so recent and clear-cut a decision. Certainty and continuity required compelling reasons before a differently constituted committee reversed a recent decision, particularly one concerning only a transitional provision.

3. No material distinction from R v Lambert. The controlling majority rejected a distinction between an alleged violation caused by the prosecutor and one caused by the trial judge. Nor did it matter whether the relevant act was discretionary or required by statute. A reference under section 9(2) of the Criminal Appeal Act 1995 was to be treated as the convicted person’s appeal; it did not become separate proceedings brought by the Commission.

4. Lord Hope’s alternative reasoning. Lord Hope considered, consistently with Lord Lloyd and Lord Steyn on this question, that section 22(4) should extend to appeals within proceedings brought by a public authority. He would have departed from the majority reasoning in R v Lambert. He nevertheless allowed the Crown’s appeal because the prosecutor, in using the compelled answers, was giving effect to section 433 of the Insolvency Act 1986. On his construction, section 6(2)(b) of the Human Rights Act 1998 meant that the prosecutor’s act was not made unlawful by section 6(1), irrespective of the prosecutor’s evidential discretion.

1. House of Lords: In Regina v. Kansal [2001] UKHL 62, the Crown’s appeal was allowed unanimously. The Court of Appeal’s order was set aside and the convictions were restored.

2. Court of Appeal (Criminal Division), 24 May 2001: On references by the Criminal Cases Review Commission, the court allowed the respondent’s appeal and quashed all four convictions because the compelled answers had been admitted in breach of article 6: [2001] 3 WLR 751.

3. Criminal Cases Review Commission: In 1998 and 2000 the Commission referred the convictions to the Court of Appeal under section 9 of the Criminal Appeal Act 1995.

4. Court of Appeal (Criminal Division), 12 May 1992: The court dismissed the original appeal and upheld the ruling that the compelled answers were admissible under section 433 of the Insolvency Act 1986: [1993] QB 244.

5. Crown Court at Snaresbrook, 18 February 1992: The respondent was convicted of two deception offences and two insolvency offences.