Liberty’s view is that the section 2 should not be amended, indeed, that in making its proposals the Government is seeking to undermine an important constitutional safeguard.

Before its amendment by the Criminal Appeal Act 1995 section 2 provided that an appeal should be allowed if (a) the conviction was unsafe or unsatisfactory, (b) a wrong decision had been made on any question of law, or (c) there was a material irregularity in the course of the trial, subject to the proviso that the Court could dismiss an appeal if it was satisfied that no miscarriage of justice had occurred. 

The Royal Commission on Criminal Justice considered the section in its report published in 1993[2].  It concluded that the Court of Appeal seldom distinguished between “unsafe” and “unsatisfactory”, that there was considerable overlap between the three paragraphs and that the proviso was arguably redundant.  The majority recommended replacing the test with a simple test, whether the conviction “is or may be unsafe.”

The 1995 Act gave partial effect to the Commission’s recommendation.  Section 2 now provides that the Court of Appeal should allow an appeal against conviction “if they consider that the conviction is unsafe.”  At the Bill’s second reading the then Home Secretary, Michael Howard, stated that the new test “clarifies the terms of the existing law” and “restates the existing practice of the Court of Appeal.”[3]  

Notwithstanding, the paper evidently considers that the 1995 amendment was meant to change the test and that the courts have failed to recognise this.  It points to divergent authority from the Court of Appeal on the effect of the amendment.  In the 1997 case Chalkley[4] Auld LJ expressed the view that the amendment had made an important change to the test to be applied by the Court of Appeal.  While noting that this would be subject to whatever the courts made of Article 6(1) once the Human Rights Act came into force, he stated that the Court now had “no power […] to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial.”   By contrast, in Mullen[5] Rose LJ, considering the Court entitled to refer to Hansard in view of the ambiguity of the term “unsafe”, echoed Michael Howard in concluding that the amended form of section 2 was simply intended to “restate the existing practice of the Court of Appeal.”  Lord Woolf CJ endorsed Rose LJ’s approach in Togher[6]. 

In the light of these and subsequent cases the paper concludes that the Court of Appeal’s view is now settled and that the Mullen interpretation has prevailed.   The concern that the paper addresses is that this permits the Court to quash a conviction, in the words of the Mullen judgment, “notwithstanding that there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself.”

The paper cites the report of the Royal Commission in support of its argument that allowing an appeal in these circumstances does not serve the public interest.  It is, however, somewhat disingenuous to claim the Commission’s support in this way; the authors of the paper are applying the Commission’s conclusions to circumstances that it did not contemplate.

In its report the Commission considered a range of broad sets of circumstances that may lead to an appeal against conviction.  Of these the two that are clearly relevant to the paper’s concerns are appeals founded on errors at trial and those based on pre-trial malpractice (such as the fabrication of a confession or the suppression of evidence) or procedural irregularity.  The Commission, no doubt rightly, took the view that similar considerations applied in relation to both.  

The majority view was that the Court of Appeal should consider whether notwithstanding the irregularity or malpractice the conviction was safe.  If so, the appeal should be dismissed.  If on the other hand the defect rendered the conviction unsafe the conviction should be quashed.  Where the conviction might have been rendered unsafe a re-trial should be ordered.  

The minority view, expressed in Professor Michael Zander’s note of dissent, was that there may be circumstances where an error at trial, even though it might not render the conviction unsafe, could justify ordering a re-trial.  As for pre-trial irregularities, while these would normally give grounds for a re-trial, the Court of Appeal’s role as the guardians of PACE and its codes could make it appropriate to quash a conviction outright where there had been grave malpractice.

The majority responded that it was wrong to punish police malpractice in this way.  It could not be “morally right that a person who has been convicted on abundant other evidence and may be a danger to the public should walk free because of what may be a criminal offence by someone else.”  It was also illogical to give the Court of Appeal the power to throw the case out where the trial judge should merely have excluded the tainted evidence under section 78 PACE.

Unsurprisingly, the paper adopts the majority view, arguing that punishing the public by quashing a conviction where there is strong evidence of guilt brings the criminal justice system into disrepute.

The problem with the paper’s reliance on the report of the Royal Commission is that the Commission does not appear to have considered appeals where the issue is whether the prosecution was an abuse of process.  Both Mullen and Togher were such cases. 

Consideration of the facts of Mullen is instructive.  In 1990 the defendant was convicted of conspiracy to cause explosions.  Shortly before the events that led the police to seek to arrest him he had flown with his family to Zimbabwe.  Some two months later he was summarily deported from Zimbabwe and was immediately arrested on his arrival in the UK[7].  Only some time after his trial did it become clear that, rather than seek to extradite him, the British police and intelligence services secretly encouraged the Zimbabwean authorities to deport him and had colluded in the deportation being effected in such a way as to deny him access to a lawyer.  The British authorities had thereby acted in breach of both Zimbabwean and public international law.

It is in this context that Rose LJ made the statement about the Court’s powers to quash a conviction even where the appellant’s guilt was clear.  This was clearly a case where the state’s actions were “so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed.”[8]  Had the trial judge been aware of the circumstances of the appellant’s return to the UK he would have stayed the proceedings as an abuse of process.  If, as the majority of the Royal Commission considered, it is illogical for the Court of Appeal to exercise powers in respect of deficiencies in a prosecution that are not available to the trial judge, it is equally illogical to deny the Court powers to address an abuse of process that are available to the judge at first instance.  (In Togher, by contrast, the Court was not persuaded that in the light of subsequent events the prosecution was an abuse of process and the appeal failed.) 

Liberty’s concern is that the consultation paper is a stalking horse.  Once the Court of Appeal’s power to quash a conviction outright where there has been serious malpractice on the part of state authorities is removed, the next step will be to take that power away from the courts of first instance.  The power to stay proceedings as an abuse of process is an important constitutional safeguard.  It must not be restricted or removed.

The current test under section 2 has the benefits both of simplicity and flexibility.  It rightly permits the Court of Appeal to allow convictions to stand where there has been an irregularity that clearly would not have affected a jury’s decision.  Importantly, it has allowed the Court to assimilate the test of fairness under Article 6 (see Lord Woolf CJ in Togher, endorsed by the House of Lords in Forbes[9].)    While we may take issue with individual decisions of the Court of Appeal and the way that certain lines of caselaw have developed (one thinks of appeals after a plea of guilty, an issue raised by Chalkley and touched on in the paper), the framework, section 2, is sound.  It does not need amending.”

[1] Quoted from the Partial Regulatory Impact Assessment.
[2] CM 2263, 1993
[3] HC Debates 6th March 1995, col. 24. 
[4] [1998] 2 Cr.App.R. 79
[5] [1999] 2 Cr.App.R 143
[6] [2001] 1 Cr.App.R 33
[7] Surprisingly, the paper is unashamed about referring to this as a “rendition”.
[8] Lord Steyn in R v Latif [1996] 1 W.L.R. 104
[9] [2001] UKHL 40