R v Kansal (No 2) [2001] UKHL 62

The respondent was convicted in 1992 of offences including those under the Insolvency Act 1986, with evidence obtained through compulsory examination admitted at trial. He sought to rely on the Human Rights Act 1998 retrospectively to challenge his conviction on appeal. The House of Lords held that section 22(4) of the 1998 Act did not permit retrospective reliance on Convention rights in appeals against pre-commencement convictions.

Facts

The respondent, a pharmacist, was convicted in February 1992 of two counts of obtaining property by deception and two counts under the Insolvency Act 1986. He had obtained substantial sums from the Halifax Building Society through false representations while bankrupt. At trial, the prosecution relied on answers he had given under compulsion during bankruptcy proceedings, which were admitted under section 433 of the Insolvency Act 1986. His appeal was dismissed in May 1992. Subsequently, the Criminal Cases Review Commission referred his convictions to the Court of Appeal, citing the European Court of Human Rights decision in Saunders v United Kingdom and the Human Rights Act 1998.

Issues

The central issue was whether, following a reference by the Criminal Cases Review Commission, a defendant whose trial took place before the Human Rights Act 1998 came into force could rely on an alleged breach of Convention rights in an appeal heard after the Act came into force. Specifically, the House considered whether section 22(4) of the 1998 Act provided for retrospective application of section 7(1)(b) to appeals.

Judgment

The House of Lords allowed the Crown’s appeal. The majority held that the decision in R v Lambert should be followed, despite recognising that there were arguments against it. The key reasoning was that section 22(4), read with section 7(6), distinguished between proceedings brought by a public authority and appeals, with retrospective effect applying only to the former.

Lord Slynn stated: “I am not persuaded that the decision of the House in R v Lambert was wrong… 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’ and an appeal.”

Lord Steyn, while considering the majority in Lambert to have been mistaken, stated: “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.”

Lord Hutton affirmed: “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)… it is clear that section 22(4) does not relate to an appeal.”

Dissenting Views

Lord Hope of Craighead and Lord Lloyd of Berwick expressed the view that the decision in Lambert was erroneous but concluded that the House should nevertheless follow it. Lord Hope argued the majority view created serious anomalies and was inconsistent with the purpose of providing effective remedies under Article 13 of the Convention.

Implications

This decision confirmed that the Human Rights Act 1998 does not have retrospective effect for appeals against convictions that occurred before the Act came into force on 2 October 2000. The case established that valid convictions under pre-existing law cannot be overturned on appeal solely because the Human Rights Act subsequently came into force. This provided legal certainty regarding transitional provisions and limited the potential for reopening historic convictions on human rights grounds. The decision also demonstrated the House of Lords’ reluctance to depart from recent precedent, even where doubts existed about its correctness, emphasising the importance of consistency and finality in the law.

Verdict: Appeal allowed. The order of the Court of Appeal was set aside and the respondent’s conviction was restored. 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 not entitled to rely on an alleged breach of Convention rights in an appeal after those provisions came into force.

Source: R v Kansal (No 2) [2001] UKHL 62