R v Kansal (No 2)

The House considered whether the limited retrospectivity in section 22(4) of the Human Rights Act 1998 permits a defendant whose trial took place before the Act came into force to rely on Convention rights on an appeal after the Act came into force. The majority held that R v Lambert [2001] 3 WLR 206 is binding and that the statutory wording (sections 7(1)(b), 7(6) and 22(4)) supports a distinction between proceedings "brought by or at the instigation of a public authority" and appeals, so that section 22(4) does not extend to appeals reopening convictions made before the Act.

Even where retrospectivity might be available, the House also addressed whether the prosecutor's use at trial of compelled answers obtained under the Insolvency Act 1986 s433 constituted an unlawful act under section 6(1) of the Human Rights Act 1998. The majority concluded that the prosecutor and trial judge had acted in accordance with then-applicable domestic law (notably Insolvency Act 1986 s433) and, applying section 6(2), that there was no unlawful act of a public authority upon which the respondent could rely.

Background and procedural history:

• The respondent was convicted in February 1992 on counts including obtaining property by deception (Theft Act 1968 s15) and offences under the Insolvency Act 1986 (s354(2) and s354(3)), following the admission at trial of answers given under compulsion in bankruptcy proceedings. The Court of Appeal dismissed his 1992 appeal. The Criminal Cases Review Commission subsequently referred the convictions to the Court of Appeal (1998 and 2000 referrals) and the Court of Appeal quashed the convictions in 2001, relying on developments including Preddy and Strasbourg authority.
• The Crown obtained permission to appeal to the House of Lords. The certified question was whether, after the Human Rights Act 1998 came into force, a defendant whose trial took place before sections 6(1) and 7(1)(b) came into force may rely on an alleged breach of Convention rights whenever the alleged breach took place.

Nature of the claim / relief sought: The Crown appealed the Court of Appeal's decision quashing convictions; the respondent sought to uphold the quashing by relying on Convention rights and the limited retrospectivity in HRA 1998 s22(4).

Issues framed by the court:

1. Whether the decision in R v Lambert [2001] 3 WLR 206 was binding and whether its reasoning precluded retrospective reliance on the Human Rights Act 1998 in appeals against convictions obtained before the Act.
2. Whether any distinction could be drawn between unlawful acts of the court and unlawful acts of prosecuting authorities for the purposes of HRA 1998 sections 6 and 7.
3. Whether, in any event, the prosecutor's act of adducing compelled evidence under Insolvency Act 1986 s433 was an "unlawful act" within the meaning of HRA 1998 s6(1), or was saved by s6(2) as acting in accordance with primary legislation.

Court’s reasoning and conclusions:

• A majority of the House concluded they should adhere to the decision in R v Lambert: the statutory language of sections 7(6) and 22(4) indicates a distinction between proceedings "brought by or at the instigation of a public authority" and an appeal, and Parliament had not expressed an intention to reopen past convictions by allowing appeals to rely on the Act retrospectively. On that basis the Court held the Court of Appeal had erred in treating all such historic convictions as capable of being reopened under section 22(4).
• Separately, several members considered whether, even if section 22(4) could be read to apply, the prosecutor's conduct was unlawful. The majority found that the prosecutor acted so as to give effect to Insolvency Act 1986 s433 and that, applying HRA 1998 s6(2) and established rules of statutory construction, there was no unlawful act of a public authority on which the respondent could properly rely in this appeal.
• There was a significant dissent (notably Lord Hope) who would have read section 22(4) more widely to permit reliance on Convention rights in appeals where proceedings were "brought by or at the instigation of a public authority," and who analysed the distinction between judicial and prosecutorial acts differently, but the majority did not accept that view.

Appeal allowed. The House, by a majority, held that R v Lambert is binding and that the limited retrospectivity in section 22(4) of the Human Rights Act 1998 does not permit reopening convictions on appeal where the trial took place before the Act; further, the prosecutor's reliance on compelled evidence under Insolvency Act 1986 s433 was, on ordinary statutory construction, done in accordance with primary legislation so as not to amount to an unlawful act under section 6(1) of the 1998 Act.

Convicted at Crown Court (18 February 1992); appeal to Court of Appeal dismissed (12 May 1992). Criminal Cases Review Commission referred convictions to the Court of Appeal (27 April 1998 and 20 June 2000). Court of Appeal allowed the reference and quashed convictions [2001] 3 WLR 751. Crown obtained permission to appeal to the House of Lords; House allowed the Crown's appeal [2001] UKHL 62 and restored the convictions.