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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cottrell, R v  EWCA Crim 2016 (31 July 2007)
Cite as:  1 Cr App Rep 7,  Crim LR 50,  1 WLR 3262,  WLR 3262,  EWCA Crim 2016,  1 Cr App 7,  1 Cr App R 7
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2007/01084 C1 (2)
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT (1)
His Honour Judge Scott-Gall
ON APPEAL FROM DERBY CROWN COURT (2)
His Honour Judge Burgess
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GOLDING
MR JUSTICE BEATSON
Steven Cottrell (1)
Joseph Fletcher (2)
Michael Aspinall for the Applicant
Sally Howes QC for the Crown
Joel Bennathan QC for the Appellant
Michael Auty for the Crown
The Chairman of the Criminal Cases Commission
D Wallbank for the Director of Revenue and Customs Prosecution
Hearing dates: 25/26/27 April, 22 June, and 23 July 2007
Crown Copyright ©
President of the Queen's Bench Division :
The Facts – Steven Cottrell
The Facts – Joseph Fletcher
"Until recently it had been the practice for many years for prosecutors to prosecute defendants under s14 in cases in which the time limit for a prosecution under s6 (1) had been exceeded and in which the prosecutor believed that the public interest would be served by a prosecution".
To exemplify the point, Calvert-Smith J drew attention to the decision of the court, presided over by Lord Taylor CJ, considering the appeal against sentence by R v Hinton  16 CAR (S) 523 when the issue under consideration arose in the direct context of the time bar, which appeared at least, to give the practice its "implied approval". Indeed it was typical that in Fletcher itself it does not appear to have crossed the minds either of counsel or the court, as then constituted, that the legitimacy of the practice was doubtful. The principled basis for it was powerfully articulated by Baroness Hale of Richmond in her dissenting speech in R v J, when the practice was dispatched to oblivion.
Post R v J
" … a prosecution for rape is in fact in substance a prosecution for any offence of which on an indictment for rape, the prisoner could have been found guilty."
"To put the case that was suggested during the argument by Sankey J: suppose the court had exercised its power of amendment during the course of the trial, and had altered the dates when the offence was alleged to have been committed in the same way as they were altered in the information it would be impossible to say that this was the initiation of the proceedings: it would be only a step taken during the proceedings".
Extension of Time
Change of Law Cases
"Absolute retro activity based solely on the notion of an Act being void ab initio so as to render any previous final judicial decision null would lead the Constitution to have dysfunctional effects in the administration of justice…the application (such) a principle …in the field of criminal law would render null and of no effect final verdicts or decisions affected by an Act which at the time had been presumed or acknowledged to be constitutional and otherwise had been fairly tried. Such unqualified retro activity would be a denial of justice to the victims of crime and offend against fundamental and just interests of society"
Addressing the general principle he observed:
"In a criminal prosecution where the State replies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any ground that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision, is unconstitutional. That is the general principle. I do not exclude…some extreme feature of an individual case, (which) might require, for wholly exceptional reasons related to some fundamental unfairness amounting to a denial of justice…"
The prosecution's appeal against the ruling of the High Court was allowed.
"It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, the previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction".
In R v Campbell  1 CAR 234, this court considered a reference by the Home Secretary under section 17(1)(a) of the Criminal Appeal Act 1968. At p206, Lord Bingham of Cornhill observed:
"On the hearing of this appeal, Mr Fitzgerald (counsel for the appellant) sought to challenge the direction given by the trial judge on provocation. He accepted that that direction faithfully reflected the law as it was understood at the time of the trial. But he submitted that the law had, over the intervening decade, so developed that there were then excluded from the jury's consideration matters which they would now be invited to consider. We would be very slow indeed to allow an appeal on these grounds. Although the appellant at one point proposed to challenge the trial judge's direction on provocation on appeal to this court, he did not in the event do so. Any such challenge at that time would necessarily have failed. It would be quite contrary to the general practice of this court to permit convictions to be re-opened because the law has changed since the date of conviction".
In R v Benjafield  1 AC 1099 at 1117 Lord Woolf commented that:
"It is not usual to grant leave to appeal out of time where the grounds of appeal are based on post-trial changes in the law. This practice has been reaffirmed in relation to applications based on the coming into force of the Human Rights Act 1998; see R v Lambert  2WLR 211. The court would not wish in this case to do other than confirm the existing practice".
" That the independent Commission was under no obligation to have regard to, still less to implement, a practice of the CACD which operates at a stage with which the Commission is not concerned. We resolve the point of principle in favour of the Commission".
As a result the Commission drew up the Seventh Version (Issued on 26 March 2007) of its formal memorandum describing the way in which it would exercise its responsibilities in "a change of law" cases. Paragraph 14 asserts, among other considerations, that "regard will not be had to....the Court of Appeal's practice in relation to applications for an extension of time in which to appeal change-of-law cases". The more we considered this new policy, the more questionable in principle it appeared to be.
"The decision was difficult to fault in terms of literalist statutory construction of the CCRC's powers under s13 of the Criminal Appeal Act 1995, and the CACD's obligations under s9 of that Act…"
He then went on to observe:
"… because the CACD must also deal with appeals referred by the CCRC. The CCRC is not statutorily precluded from referring a case out of time. Having regard to its statutory powers, there is no obligation of the CCRC to have regard to the CACD's finality policy in change of law cases….moreover, once the CCRC refers a conviction to the CACD, the CACD has no opportunity to apply its policy to filter appeals out of time: By s9 (2) of the 1995 Act the CACD must proceed to hear and determine the appeal as referred. The CACD had, in Kansal (No: 2)  2Cr.App R30 at (24) and Ramzan, encouraged the CCRC to have regard to its finality policy to avoid the obvious conflict whereby an appellant approaching the CACD on an appeal based on change of law would be likely to be refused leave, whilst an identical case which might be referred by the CCRC would have to be heard. There is much pragmatic sense in that – for the system to work, any CCRC decision "must be informed by the Court of Appeal's working practices": Ashworth and Redmain, Criminal Process , P.359".
Professor Ormerod continues his analysis by suggesting that the decision itself means that:
"The CCRC is not obliged to have regard to the CACD's policy when deciding whether to refer. Nor is the CCRC obliged to have regard to that policy when evaluating whether there is a real possibility of a conviction being quashed, because as the CCRC knows, once the reference is made the CACD will have no opportunity to apply that finality filter".
If this is indeed what the decision means, and we agree with Professor Ormerod that it does, we are in highly unusual territory.
"Whatever statutory test Parliament …imposed it has to be one that articulates with the test that the Court of Appeal itself has to apply. If you break that link and you establish an asymmetry between the two tests, you will be creating an absurd situation. It would create tension between the Court of Appeal and the Commission, it would raise expectations, it would cause confusion, and it is difficult to see what possible public interest could be served by referring cases on a basis that had no relation to the test employed by the court itself."