WHEN judges reinterpret rules of criminal law in ways that make them harsher, the objection is well known, and much discussed by legal theorists. It means, potentially, that someone ends up getting punished for something which, at the time he did it, was thought not to be a crime, and in modern times, retrospective criminal liability is seen as contrary to principle: nulla poena sine lege. But when judges do the opposite, and reshape the law to make it narrower or milder, this causes problems too, because those punished by the harsher rule, now held to be an error, complain that they were punished wrongly – so raising awkward issues about the proper balance between justice and finality.
In the past, the Court of Appeal has generally shut its ears to these complaints, putting finality ahead of justice. In such cases the appeal is usually brought outside the usual 28-day statutory time-limit, and so can only go ahead if the Court of Appeal waives compliance with it; and this it will not do unless refusal would cause “substantial injustice” – the reality of which it has usually been unwilling to accept. A few years ago, this hard-nosed attitude led it into conflict with the Criminal Cases Review Commission, which took to referring such cases to the Court of Appeal, so forcing it to look at them; a spat which ended in 2003 when Parliament, in “law and order” mode, amended the Criminal Appeal Act 1995 to limit the Commission's powers. In the recent case of Bestel, Raza and Bashir [2013] EWCA Crim 1305, [2014] 1 W.L.R. 457 the Court of Appeal restated the “substantial injustice” test yet again, but – rather unusually – found it to be satisfied on the facts before it.
The background was the Proceeds of Crime Act 2002, under which courts have powers to strip convicted persons of the “proceeds” of their crimes. Initially, the courts interpreted the concept “proceeds” as covering, in essence, any good thing that had come the defendant's way as a consequence of his crime. So in Waya [2012] UKSC 51, [2013] 1 A.C. 294, where D was convicted of a fraud offence for lying to a building society to persuade it to lend him the £465,000 he needed to pay for a £775,000 flat, the “proceeds” of his crime were initially assessed as the current market value of the flat (£1,850,000), less the money he had put up himself, resulting in a confiscation order for £1,540,000 – all for a crime for which the actual sentence had been an 80-hour community order. When the case eventually reached the Supreme Court, however, the proper calculation of the “proceeds” of Waya's crime was held to be the proportion of the flat's appreciation traceable to the building society's advance, minus certain repayments D had made: yielding a figure of £392,400, or about a quarter of the original assessment. When word of this decision got around, a procession of convicted mortgage fraudsmen whose pockets had been emptied by judges applying the pre-Waya formula beat a path to the door of the Court of Appeal, seeking leave to appeal out of time: headed by Messrs. Bestel, Raza and Bashir.
To cut to the chase, the Court of Appeal refused Raza's and Bashir's applications because it was still open to them to go back to courts that had imposed the confiscation orders and seek a variation, which it thought would enable justice to be done in these two cases. But Bestel's application to appeal out of time, by contrast, it allowed. It proceeded to quash the order, and remit the matter to the Crown Court for rehearing.
What is really interesting, however, is not the result in each of these three cases, but that in reaching these conclusions the Court of Appeal reviewed the authorities at length. Prompted by this, the rest of this note will attempt to sketch out, as a matter of principle, how the law should operate in the various types of cases discussed in this review.
The first type of case is where it is now clear that the conduct for which D was previously convicted was, under the law as now restated, no crime at all; and here the conviction surely should be set aside. This line was taken years ago in Mitchell [1977] 1 W.L.R. 753, where D had been convicted of possessing with intent to supply a substance which the Court of Appeal in a later case had held was not a drug. Arguing in Bestel, counsel for the Crown had suggested that, as Mitchell was actually serving two prison sentences concurrently, one for this offence and one for handling stolen goods, the proper solution in that case would have been to let the non-offence conviction stand but to quash the prison sentence: a suggestion which, in its judgment in Bestel, the Court of Appeal then endorsed. But this is surely questionable. A person who has been convicted for what was not a criminal offence has surely suffered a “substantial injustice”, by definition – however long ago it was, even if he is currently in gaol for something else. In such a case there should be no question of refusing leave to appeal on grounds of finality.
In practice, however, this situation is very rare, and more commonly the change in the law reveals that D was convicted not where he was wholly innocent, but that he was merely convicted of the wrong offence. In this situation, leave to appeal is usually refused, albeit at the cost of leaving D with a criminal conviction for an offence that he did not commit – an approach the Court again endorsed in Bestel. The current solution to this second type of case is not wholly logical, but it is probably the best that can be done. In a perfect legal world, the Court of Appeal would intervene and substitute a conviction for the right offence. But as things stand, its statutory powers to substitute one conviction for another are very limited. And more significantly, its resources are also limited and should be applied to those cases that are most deserving. In the hierarchy of complaints about ill-treatment from the criminal justice system, “You once called me the wrong sort of scoundrel” does not rank particularly high.
A third type of case arises where, as in Bestel itself, the later legal change affects not the conviction, but the sentence or order resulting from it. And here, surely, the appeal should be entertained, and the sentence or order mitigated, at least in any case where the defendant is still in prison; or if money payments are involved, in any case where the money has not yet been paid. To say to someone in prison when case-law has now decided that people like him should not be there, “Tough! You've missed the 28-day time-limit for appeals, so you must stay there” would be self-evidently outrageous; as it would be, surely, to make the same response to someone ordered to pay £1,500,000 when the Supreme Court has later said the right figure would be a third of this. So the Court of Appeal is to be commended for doing what it did in Bestel. To quote the well-known words of Lord Atkin in Ras Behari Lal v King-Emperor (1930) 50 T.L.R. 1, “Finality is a good thing, but justice is a better.”
Reverting to conviction cases, a further and particularly difficult problem arises when, at a trial, something was said or done which was thought right and proper at the time, but which in the light of later case-law would now be considered wrong. This was not an issue aired in Bestel, and it will not be considered further in this note. But the point arose some years ago in King [2000] Crim. L.R. 835, and for readers who wish to pursue it, the accompanying note by D.C.O. – now Professor David Ormerod – is warmly recommended.
