Cottrell, R v

Steven Cottrell was convicted at Lewes Crown Court on 8th August 2003 before His Honour Judge Scott-Gall and a jury of two counts of indecent assault with a female aged under 16 years. Joseph Fletcher was convicted at Derby Crown Court on 24^th October 2003 before His Honour Judge Burgess and a jury of seven counts of indecent assault on two females aged under 16 years.

Fletcher appeals against conviction (and sentence) following a Reference to the Court by the Criminal Cases Review Commission (the Commission). Cottrell seeks leave to appeal against conviction nearly three years out of time. Fletcher’s appeal and Cottrell’s application for an extension of time and leave to appeal are both consequent on the decision of the House of Lords in R v J [2005] 1 AC 562. Factually the two cases are unconnected, but they raise difficult and troublesome common features of principle. Accordingly they were heard together, and judgment was reserved.

While the judgment was in the course of preparation it became apparent that our decision might impinge on the responsibilities and practice of the Commission. Our concern was with the decision in R(Director of Revenue and Customs Prosecution) v Criminal Cases Review Commission) [2007] 1 CAR 384. The Divisional Court held that the Commission “was under no obligation to have regard to, still less to implement” the practice of this court in applications to extend time in “change of law cases”. Paragraph 14 of the Commissions’ most recent policy memorandum reflected this judgment. The matter was listed for mention 22 June. The Commission was notified, but was not represented by counsel. Its chairman, Professor Graham Zellick, attended, and in response to an invitation by the court, made a number of observations. In the light of what he said, the court invited the parties to the appeal and the Commission to advance argument on the broad issue of concern to the court. The court made clear that, although the Commission was not formally a party to the appeal and the application, it considered it important for the Commission to be given an opportunity to make submissions. The Commission made written submissions, adding that it had decided not to instruct counsel, and repeating the submissions before the Divisional Court. When the matter came before us on 23 July, Professor Zellick again attended, briefly amplified the Commission’s written submissions, and responded to questions by members of the court. By that date we were also provided with written submission on behalf of the Director of Revenue and Customs, and Liberty, and further written submissions from counsel for Cottrell and Fletcher. We shall address what we shall summarise as the change of law issues later in the judgment.

At all relevant times Steven Cottrell was a serving police officer. In late 1999, NB a girl born in February 1984, started a short period of work experience with the police force. She complained that on an occasion when she was alone with the applicant in his patrol car, he touched her breasts. Thereafter, between November 1999 and the end of the year, he had consensual sexual intercourse with her. She told him she was 15 years old.

During 2002 the applicant was arrested and charged with sexual allegations involving two other girls. In the course of their investigations, the police interviewed NB.

By the time the offences against NB had come to light, it was not possible for the applicant to be charged with offences of unlawful sexual intercourse. More than twelve months had elapsed since the last act of intercourse. Accordingly, in accordance with common practice, the applicant was charged with and faced trial for indecent assault.

At trial, the applicant admitted having sexual intercourse with NB. His case was that she told him that she was sixteen years old. In his evidence he described the development of the relationship between them. On occasions she sat in the back of his police car. He learned that she was still at school, and keen to join the police service. In answer to a direct question, she told him that she was 16 years old.

He described an occasion when she was in the front office learning about the system of instructions to police officers on the radio, and he passed her a note. He could not recall exactly what it said. He denied her allegation that it read, “can I lick you?” It was more likely to have been a comment on her inefficiency on the radio. He denied the complaint by NB, that when they were alone in the car, before a full sexual relationship began, he reached across and touched her breasts. He denied touching her in an intimate way at all before she was sixteen years old.

After her period of work experience was concluded, he told that she could contact him, or another officer, if she needed help with her application form. She found out his mobile telephone number, and indeed his home telephone number, and she invited him to her birthday party in early 2000, which he assumed was her seventeenth birthday. He told her that he would be unlikely to attend, but would like to take her out for a belated drink. Arrangements were made for him to do so. That evening they had a couple of drinks, kissed and he took her home. A matter of days later they entered into a more physical relationship and during a two week period they had sexual intercourse on three or four occasions at his home.

He was then thirty four years old. He became worried about the age difference between them. She wanted to move in with him, and was talking about marriage and children. She gave him a book with handwritten poems and a number of gifts. By then, however, he was already developing strong feelings for his future wife, and so he ended the relationship. NB did not take it very well.

The sexual relationship between NB and the applicant was not in dispute. His case was that she was, and that he honestly believed that she was, sixteen years old at the time.

After an impeccable summing up, the applicant was convicted on two counts of indecent assault based on the two occasions when NB reported that sexual intercourse had taken place. The jury was unable to agree on the separate count of indecent assault arising from the allegation that the applicant had touched NB’s breasts in the police car. The verdicts meant that the jury accepted that the sexual relationship occurred when NB was fifteen years old, and the applicant knew it. It was sensibly decided that no public purpose could be served in pursuing the count of indecent assault on which the jury were unable to agree. A not guilty verdict was entered under section 17 of the Criminal Justice Act 1967.

The applicant was sentenced to six months imprisonment on each count. Appropriate notification and disqualification orders were made.

No application was made for leave to appeal either conviction or sentence. After the decision of the House of Lords in R v J, the case was referred to the Commission. After dealing with, and in effect rejecting a number of extraneous complaints, the Commission concluded that in view of the decision there was a “real possibility” that the convictions would be “overturned” if they were referred to the Court of Appeal. However there were no exceptional circumstances to cause the Commission to depart from the general practice that the case would not be referred to the court by the Commission while it remained open to the applicant to apply to the court for leave to appeal out of time. Hence the present application.

We can take the summary of the facts from the Reference itself.

The prosecution case was that between about May 2000 and May 2001, the appellant, then 65 years old, and living alone, encouraged teenage girls with whom he came acquainted through his granddaughter, to spend time at his home. The temptation or inducement was alcohol and cigarettes. During March 2001, one of the girls, SB, was raped. The appellant was charged in May 2001. Four other girls were indecently assaulted by inappropriate touching or participation in number of different sexual activities with the appellant.

The defence case was that all the allegations were fabricated. The appellant was no longer interested in sex. He had never had sexual contact with any of the girls. He allowed them to come to his house and he gave them cigarettes, but that was in return for housework they did for him. He did not give them alcohol, although at times they helped themselves to small amounts of alcohol from his fridge.

The original indictment included ten counts, count one alleging rape of SB. The first trial came to an end when the appellant dismissed his legal representatives after he had concluded his evidence. The second trial concluded during the course of the evidence for the prosecution when difficulties arose about the introduction of some diary evidence. The convictions were returned at the end of the third trial. Towards its end, on 21st October 2003, in order to deal with the possibility that the jury might consider that the Crown had failed to establish lack of consent, or knowledge of the absence of consent, count 11, alleging indecent assault, was added to the indictment as an alternative to the allegation of rape in count one. It was, of course, open to the judge to leave the issue of indecent assault as an alternative to rape without the addition of the count. Having heard submissions, Judge Burgess ordered the appropriate amendments.

In due course, the jury acquitted the appellant of rape, but convicted him on count 11. The appellant was also convicted of six additional counts of indecent assault on young women, and acquitted of three further counts of indecent assault, one on the basis of the judge’s direction. The details of these different indecent assaults, and the different girls who were victims of them need no recital, but the feature which distinguished them from the indecent assault alleged in count 11 was that whereas count 11 related to an allegation of indecent assault based on a full act of sexual intercourse, the remaining indecent assaults did not involve penile penetration.

On 12^th December 2003, the appellant was sentenced to ten years imprisonment, comprising a custodial term of six years imprisonment and an extension period of four years on count 11, three years imprisonment concurrent on counts 3, 4 and 7, and twelve months imprisonment concurrent on counts 2, 5 and 8. Appropriate notification and disqualification orders were made.

Leave to appeal against conviction was granted. Two grounds were argued, first, that the case should have been withdrawn from the jury at the close of the prosecution evidence, and, second, that the conviction was unsafe in the light of numerous contradictions and inconsistencies in the evidence given by the complainants. On 28^th October 2005, just after the judgment in R v J had been delivered, the appeal against conviction was dismissed. No point based on R v J was taken, and the court was not invited to consider any issues relating to sentence.

On 25^th November 2005 the appellant applied to the Commission for his convictions to be referred back to the court on a variety of grounds. The application did not refer to the decision in R v J. However on 22^nd February 2007, in the light of the decision, the Commission decided to refer the conviction on count 11, indecent assault, as well as the sentence imposed for the offence to the court.

Before the decision of the House of Lords in R v J it was well understood that a prosecution for unlawful sexual intercourse with a girl under the age of sixteen years more than twelve months after the commission of the alleged offence was prohibited. (Section 37(2) and paragraph 10(a) to Schedule 2 to the Sexual Offences Act 1956). In law underage girls were unable to consent to sexual activity which amounted to indecent assault, and indecent assault was free from the same restriction. As a result, the practice of charging indecent assault after the expiry of the twelve month time limit where sexual activity with an underage girl included sexual intercourse was commonplace. Calvert-Smith J described in R v Timmins [2006] 1CAR 18 how:

“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”.

It is impossible to calculate the precise number of defendants who were prosecuted to conviction on the basis of the practice. The numbers will be large. Many defendants who had sexual intercourse with an underage girl will have pleaded guilty to indecently assaulting them, and many others will have been convicted on specific counts of indecent assault on the basis of full sexual intercourse, notwithstanding what would now, following R v J, be recognised as a sound point arising from the time limit provisions. In the same circumstances, others will have been convicted following the addition of a specific count of indecent assault as an alternative to another charge, such as rape. Yet others will have been convicted of indecent assault, when the count was left as an alternative to rape but without, in the exercise of the judge’s discretion, a specific count being added. There will therefore have been a long established pattern of convictions for indecent assault where a jury was sure that sexual intercourse with an underage girl occurred after the expiry of the twelve month time limit.

In R v J the House of Lords concluded that as a matter of statutory construction the long-standing practice had the impermissible effect of dispensing with or suspending an unequivocal statutory provision. This correction reversed the law relating to sexual activity with under age girls as it had operated for virtually fifty years. It is artificial to pretend that the law was not changed, or to dress its impact in the jurisprudential disguise that the law had, in Blackstone’s word, been “discovered”. If the law had not been corrected, Fletcher’s conviction would not have been referred to this court by the Commission, and Cottrell would not, on the advice of the Commission, have been seeking leave to appeal out of time.

As it happens, when R v J was argued in the House of Lords, the statutory time limit was abolished with effect from 1st May 2004. R v J was therefore concerned with the pre-existing law, and it will have no impact on cases of sexual intercourse with underage girls taking place after that date.

R v J directly focussed attention on the narrow question whether the time limit applied to a charge of indecent assault based exclusively on an act of intercourse. Lord Bingham of Cornhill explained that there would be very many cases where the twelve month time limit had passed where there would be “other acts independent of the sexual intercourse itself, or conduct inherent in or forming part of it, on which a prosecution properly be founded. It is only where the time limit has expired and when only evidence of sexual intercourse is relied on, that the defendant may not be prosecuted”. Lord Clyde observed that “there was nothing in the defendant’s behaviour other than the act of intercourse which was of such significance or importance as to justify the framing of a charge of indecent assault in place of one of unlawful sexual intercourse”. He considered that the problem with the former practice arose “where the facts disclosed nothing more in the way of assault than the act of sexual intercourse”. Lord Rodger made the same point, concluding that a charge of indecent assault was not permitted “where the act in question was simply sexual intercourse with an underage girl”. On this analysis the operation of the time bar in the context of indecent assault should be of limited application.

The consideration which informed the previous practice was that, on any view, sexual intercourse usually represents the culmination of one form or other of sexual contact or touching. If a sexual relationship involving an underage girl extended to intercourse, but, for whatever reason, a prosecution was not commenced within the time limits, sexual activity which preceded intercourse, whether on the occasion in question, or on earlier occasions by way of grooming, or seduction, or simply a gradually developing and increasingly intimate physical relationship eventually which culminated in sexual intercourse was not normally charged as a separate count of indecent assault. Unless, possibly, the defendant was challenging the fact of intercourse, separate counts alleging indecent assault, one directed to sexual activity leading to intercourse, and a second based on intercourse itself, would have been and were regarded as wholly artificial. In R v J itself, other than a separate incident of oral sex which for well understood but technical grounds fell outside the ambit of indecent assault and was therefore charged as gross indecency with a child, the sexual grooming to which the complainant was undoubtedly subjected before she consented to intercourse was not the subject of any separate charge. If it had, it seems clear that on elementary principles, J would rightly have been convicted of indecent assault. In reality, all his sexual activity with the complainant was criminal, and the time limit did not reduce that criminality by one jot. (It provided a barrier to prosecution, and conviction, in very limited circumstances. Perhaps also, we can now add that, in the event of historic cases coming to light from much earlier times, we can see nothing in the language used in the speeches of the majority in R v J which would preclude a proper conviction for indecent assault on the basis of sexual activity which took place prior to or on a separate occasion from full intercourse.

Despite the decision in R v J, but perhaps no more than a continuing reflection of the “mess” identified by Baroness Hale, there is still a disturbing inconsistency about the way these problems are approached. Thus in Fletcher’s appeal, we are required to address the question whether R v J applies when the count of indecent assault was added to the indictment by amendment as an alternative to an allegation of rape in order to allow for the possibility that the jury might not be sure that the complainant did not actually consent to intercourse. We note that in R v J Lord Bingham was inclined to the view that an alternative verdict would not be time barred, and that Lord Clyde observed that in R v J the court was not concerned with problems of alternative verdicts.

In R v WR [2005] EWCA Crim 1907, the indictment alleged both rape and indecent assault on the same underage girl. The indecent assault count was included as an alternative to rape, to allow for a possible insufficiency of evidence to establish the absence of consent. WR was convicted of indecent assault. The conviction was quashed on the basis that “the legitimacy or otherwise of including a conviction for indecent assault cannot depend on whether the prosecuting authorities included a primary and more serious charge of rape, or had good grounds for doing so on the indictment”. In argument attention was not drawn to section 6(3) of the Criminal Law Act 1967. The Commission has identified R v Manister [2005] EWCA Crim 2866, a case considered with a group of appeals against conviction in the context of the then new “bad character” provisions in the 2003 Act, as another case in which the reasoning in R v WR was applied.

R v Timmins [2006] 1 CAR 18 produced a different result. Timmins was charged with rape of an under age girl. He agreed that he had had intercourse with her, asserting that she had consented. Consideration was given to the possibility of adding a count of indecent assault to cover the appellant’s admitted behaviour, but at that stage, the Crown conceded that in view of R v J such a count would be impermissible because the time bar would apply to the act of intercourse. Subsequently the judge ruled that it was permissible to leave indecent assault to the jury as an alternative verdict under section 6 (3) of the Criminal Law Act 1967, without any amendment to the indictment. The appellant was acquitted of rape, but convicted of indecent assault. His appeal against conviction was dismissed.

The question directly addressed in R v Timmins was whether a decision by the judge to leave a lesser offence to the jury for its consideration amounted to “the commencement of proceedings for the particular offence”? Two possibilities were considered. The proceedings either “commenced” when the more serious offence was charged, or when the trial judge decided that the lesser offence should be left to the jury for its consideration and the defendant became liable to be convicted of it, or on appeal when the Court of Appeal decided to substitute a verdict of the lesser offence. The court distinguished between the addition of a count and the taking of the plea to it, when it could “clearly be said” that the proceedings for the offence alleged in that count “commenced”, but concluded that that approach could not realistically apply to leaving an alternative verdict without the inclusion of an appropriate count, adding that it would be “somewhat fanciful to suggest that the substitution of a verdict by the Court of Appeal (Criminal Division) amounts to the “commencement of proceedings”. The operation of section 6(3) of the 1967 Act made it permissible for the jury to consider indecent assault as an alternative to a count of rape. The prohibition in R v J related to the institution of proceedings rather than alternative verdicts. Therefore neither R v J, nor R v WR applied. The court certified that a point of law of general public importance, that is, whether in the light of R v J it was permissible “for a court to allow a jury to consider, as an alternative to rape, a verdict in relation to indecent assault, where the indecent assault consists of an act of unlawful sexual intercourse, a count for which could not be lawfully indicted, it being out of time”.

R v Timmins was followed in R v Phillips. R v J and R v WR were distinguished on the basis that they did not address the situation where the prosecution, on proper evidence, alleged rape, and the alternative verdict of indecent assault was left to the jury in the summing up. In R v Phillips the court regarded Timmins as “correctly decided”, and indeed, on the basis that the House of Lords refused leave to appeal the question certified in R v Timmins, concluded that the House of Lords took the same view. Another possibility, of course, is that the House may have considered that the number of cases in which the distinction might be of significance would be relatively small, and in inevitable decline because the time bar will have no application where intercourse occurred after May 2004.

The Commission, understandably seeking for some clarification of the principles, has drawn attention to a number of earlier decisions, which were not cited in either R v WR or R v Timmins. They include R v West [1898] 1 QB 174 and R v Hodgson [1973] 57 CAR 502. In R v West [1898] 1QB 174 the Court was concerned with a statutory time limit of three months in which to commence proceedings for an offence contrary to section 5 of the Criminal Law Amendment Act 1885, an offence known to us as unlawful sexual intercourse with a girl between thirteen and sixteen years. The alleged offence was committed on 19^th July. The defendant was charged with rape, and committed for trial on 27^th July. The depositions suggested that the allegation of rape could not be sustained. The bill of indictment laid before the grand jury on 22^nd November alleged unlawful carnal knowledge of the girl. The trial took place on 25^th November. The defendant was convicted. It was accepted that proceedings for his contravention of section 5 of the 1885 Act were not “commenced” within the statutory three month period. A case was stated for the opinion of the Court of Crown Cases Reserved. The Court concluded that the prosecution was not barred by the time limit. The proceedings were commenced within the necessary three month period. The basis of the decision was succinctly expressed by Lord Russell CJ

“ … 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.”

This approach was confirmed in R v Wakeley [1920] 1KB 688. The Earl of Reading CJ addressed a problem in relation to the six month time limit which then applied to the prosecution of an offence under section 5 of the 1885 Act, as amended by section 27 of the Prevention of Cruelty to Children Act 1904. He observed, with approval:

“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”.

R v West was not cited in R v WR. Equally the court’s attention was not drawn to R v Hodgson [1973] 57 CAR 502 where it was held that on a charge of rape, it is open to the jury to convict on indecent assault just because the girl in question was under sixteen and therefore “incapable” of consent. On the other hand, R v Timmins, where R v Hodgson was considered, accepted the reasoning in R v WR as applied to the addition of a count of indecent assault based on an act of intercourse. But, like the court in R v WR, it did so without reference to R v West.

Both R v West and R v Wakely were considered in R v Richards [1995] CLR 894. The appellant was charged with unlawful sexual intercourse with a girl under sixteen on an occasion between 1^st and 14^th September 1992. He was charged on 15^th January 1993, and committed for trial on 18^th May. On 28^th June he was arraigned and pleaded not guilty. The trial began on 20^th October. Two new counts were added. The original count was amended so that, as count five, it alleged unlawful sexual intercourse between 31^st May 1992 and 14^th September 1992. On re-arraignment the defendant pleaded not guilty to all five counts. He was convicted on count five. He appealed against conviction on the basis that the proceedings to which count five related were commenced more than twelve months after the offence charged. The conviction was quashed on the basis that count five may in fact have alleged a different offence to that with which the appellant was charged on 15^th January 1993. This was because intercourse was occurring at fortnightly intervals and the appellant may have been convicted in respect of a criminal offence which had not been the subject of the original charge, and which fell outside the time limit. The court observed that one way of avoiding this problem would have been for the Crown to refrain from amending the indictment in the way they had. R v Wakeley was applied, and distinguished on the basis that the permissible amendment related to the original offence.

These decisions since R v J have created, or identified, a distinction between cases where a count of indecent assault is added to the indictment as an alternative to the more serious charge of rape, and those where rape is alleged, and the judge simply leaves indecent assault as an alternative without the addition of a specific count. The distinction creates a disturbing tension to the principle that the criminal justice system should, so far as possible, be certain, and that its operation as between all complainants and all defendants should not be fortuitous. The temptation to seek to establish a logical, consistent position is considerable, and an examination of all the relevant authorities might reveal whether, and if so which of them, was decided per incuriam. Nevertheless it would be foolish for us now to rush in where the House of Lords in R v Timmins has declined to tread. In short, given the shambles resulting from the protracted legislative process, we should avoid taking any step which, in the purported interest of consistency might add to the confusion. Rather we must ensure that the law applicable to old cases will, so far as possible, be approached as if the principles were established and consistent. In cases where the conviction for indecent assault followed an allegation of rape, R v WR (the added count) and R v Timmins (the alternative count) as they apply to the individual case, should be followed.

The Commission observes that the complaint against Fletcher was made promptly, and that the charge of rape was brought well within the twelve month limit which would have applied to unlawful sexual intercourse, adding further, that the Judge’s decision that it would have been helpful to the jury to add indecent assault to the indictment rather than leave it as an alternative count was understandable. We wholeheartedly agree. Nevertheless we regard ourselves as bound by R v WR to allow Fletcher’s appeal against his conviction on count eleven. He is extremely fortunate that for the sake of “clarity”, Judge Burgess decided that count eleven should be added to the indictment. If indecent assault had been left as an alternative to rape, following R v Timmins and R v Phillips, the appeal would have been dismissed.

In Fletcher’s case, because the case comes directly to us as a reference by the Commission, we are not required to address any question of time extensions. Indeed we are not entitled to do so. The resulting problem arises for direct consideration in Cottrell’s application and will be addressed shortly. In Fletcher’s case, however, it is important to emphasise that his first appeal against conviction was decided after the decision in R v J. In other words, on 14^th October 2005, for the reasons we have given, the applicable law changed. Although no point was in fact taken on 28^th October, when Fletcher’s appeal was before this court, if it had been, it is difficult to imagine that an application to amend his grounds of appeal to rely on R v J would have been refused. Subject to any questions arising under section 6(3) of the 1967 Act, and assuming the law as developed in R v WR was held to apply, it would have been decisive.

Fletcher appealed in time. The changed law took place before his appeal was concluded. Cottrell is a very different case. As we have explained, the Commission accepted that Cottrell’s case was effectively indistinguishable from R v J, which however was not decided until at least a year after the conclusion of his trial. The Commission’s decision not to refer the case reflected the absence of any previous unsuccessful application for leave or an unsuccessful appeal. As there were no exceptional circumstances to justify a reference before Cottrell himself sought leave to appeal out of time, he was informed that he should take the first appropriate steps himself. This followed the important statutory pre-condition to any reference, prescribed in section 13(1) of the Criminal Appeal Act 1995.

These cases present issues of great sensitivity and latent tension. Those convicted on the basis of the old law assert that their convictions were based on an erroneous understanding of the criminal law and that they have therefore suffered an injustice. At the same time there is a continuing public imperative that so far as possible there should be finality and certainty in the administration of criminal justice. In reality, society can only operate on the basis that the courts administering the criminal justice system apply the law as it is. The law as it may later be declared or perceived to be is irrelevant. Change of law appeals create quite different problems to those which arise in the normal case where an individual was wrongly convicted on the basis of the law which applied at the date of conviction. These tensions are not confined to England and Wales.

The issue presented itself to the Supreme Court of Ireland in A v Governor of Arbour Hill Prison [2006] IEFC 45. The facts were simple. In June 2004 A pleaded guilty and was convicted of unlawful carnal knowledge contrary to section 1.1 of the Criminal Law Act 1935. In May 2006, in CC v Ireland and others the Supreme Court declared that section 1.1 was inconsistent with provisions of the Constitution of Ireland. A appealed against his conviction. The argument was simple. His conviction was null. It depended on a law which, because it was inconsistent with the Constitution, did not exist. The High Court agreed. The prosecution appealed. Murray CJ, and the remaining members of the Court, conducted a comprehensive analysis of both common law and civil justice systems, which demonstrated the effective universality of the problem. He observed:

“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.

This decision of the Supreme Court was based on the constitutional arrangements which apply in Ireland. Accordingly, the analogy with change of law cases in this country is not complete. That said, the decision provides valuable illumination of the need to emphasise that appeals against conviction in change of law cases involve significant social and public considerations which go well beyond a narrow focus of an individual conviction.

These considerations informed the principles applied by this Court, when deciding whether to grant leave to appeal against conviction out of time. The general rule is simple. Without special or particular reasons an application for leave to appeal out of time on such change of law grounds will not be granted. Given the importance of the principle to this judgment, we must refer to passages in the judgments of a number of previous Lords Chief Justice. In R v Mitchell [1977] 65 CAR 185 at 189 Lane LJ (as he then was) commented:

“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 [1997] 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 [2003] 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 [2001] 2WLR 211. The court would not wish in this case to do other than confirm the existing practice”.

We have already burdened this judgment with what may otherwise appear to be an unnecessary citation of authority in order to establish that it has for very many years, and still is, as Hughes LJ described it in R v Ramzan and others [2007] 1 CAR 150, the “very well established practice of this court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the defendant”. In short, the principle is that the defendant seeking leave to appeal out of time is generally expected to point to something more than the mere fact that the criminal law has changed, or been corrected, or developed. If the appeal is effectively based on a change of law, and nothing else, but the conviction was properly returned at the time, after a fair trial, it is unlikely that a substantial injustice occurred.

We do not doubt that there have been occasions when the practice has not been followed, but they do not undermine the essential policy reasons on which the principle is based. As applied in this Court, it is inherent that the policy permits of exceptions. We are not impressed with the submission that the court has not criticised the Commission for referring a change of law case. No one has suggested that the Commission is subject to a statutory prohibition against making a reference in such cases. In any event, even if not unknown, it would be rare for the court to criticise the Commission for referring a case which resulted in the quashing of a conviction, whatever its views about the decision to refer. That does not constitute approval. Thus, for example, we pause to consider the decisions in R v Cayley-Knowles and R v Iorwerth Jones [2006] EWCA Crim 1611, which were referred to the court following a decision in the House of Lords in R v Wang [2005] UKHL 9 which held that a judge should never direct a jury to convict. Cayley-Knowles was convicted in 1972, on the judge’s direction of assault occasioning actual bodily harm. The evidence of the complainant was unchallenged. Addressing the jury, the appellant admitted that he had punched the victim twice in the fact causing actual bodily harm, and that he had not acted in self-defence and that the attack was not an accident. The judge directed the jury to convict in circumstances which, in 1972, would have attracted “no possible criticism”. Iowerth Jones was convicted more recently, but still, as long ago as 1994 of criminal damage. He admitted the damage alleged, caused as a protest against an incident which had happened in 1983. There was no defence. The judge directed the jury to convict. They did so. His conduct in 1994 was not open to criticism. As the cases were referred directly to the court by the Commission time was abridged. Leave to appeal out of time was not required. On the basis of the judgment which we have read, we have very grave doubts whether, if invited to do so, the court would have extended time in either case.

Cases like these are very different from R v Bentley [2001] 1CAR 307 where this court applied modern standards of fairness to a notorious conviction. Bentley’s conviction would not have been regarded as unsafe if the summing up had been fair and the directions of law adequate. It was quashed because by standards in 1952 as well as modern standards, the summing up, in particular in the context of the burden of standard of proof, and the lack of overall balance, deprived the appellant of his “birthright” of a fair trial. The decision did not depend on a legal view of the principles governing joint enterprise, and in particular the then recent decision developments in the House of Lords in R v Powell and R v English [1998] 1 CAR 261 of these principles. In relation to criticisms of the judge’s directions of law, the only ground which succeeded was based on the later court’s view that the first court had simply failed to grapple with the point. In other words, the defect arose at the time of trial. It was not based on any post-trial change of law.

After this discussion of the principles applied by this court in change of law cases, we must identify our concerns about the decision in R (DRCP) v Criminal Cases Review Commission [2007] 1CAR 395. The Divisional Court, presided over by Maurice Kay LJ was invited to consider whether the Commission, exercising its statutory function, should have regard to the practice adopted by this court in change of law cases. The court reached the clear conclusion:

“ 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 problem was not addressed in the Royal Commission on Criminal Justice, chaired by Viscount Runciman, nor indeed in the legislation which followed that Commission and by Part II of the 1995 Act established the Criminal Cases Review Commission itself. The failure to anticipate the problem is unsurprising. At that time, the focus of the Runciman Commission was indeed “old” or historic cases, where the appeal process had been exhausted and the Home Office represented the only, and a hazardous route, to remedy miscarriages of justice in accordance with section 17(1) of the Criminal Appeal Act 1968. Just because so many of the troublesome cases were old and well out of time for any appeal, or further appeal, the normal time limits were disapplied. The Commission may refer a conviction “at any time”. With historic cases understandably occupying so much attention, the problem of change of law cases was not directly addressed. At the time, the normal approach of the court to such cases was straightforward and well understood: save exceptionally, any necessary extensions of time would be refused. In short, in relation to these cases, neither the Runciman Commission, nor indeed the legislation, were required to address what was a non-problem.

The potential consequences of the omission have taken some time to become apparent. However the latest policy adopted by the Commission following the decision in R (DRCP) means that the arrangements for dealing with historic cases and change of law cases have been elided. Cottrell typifies the potential difficulties. For reasons which will appear we shall refuse leave to Cottrell to appeal out of time. If however the case had been referred directly by the Commission following the decision in R v J, or even if, notwithstanding our decision, the Commission subsequently decides to refer the case back to the court, Cottrell would not have needed, or would not then need any extension of time. The reference always bridges the time gap. By making it, whenever it is made, the Commission in effect grants any necessary extension of time and the Court cannot refuse to deal with the case on the basis that it is stale, even if, left to itself, the court would not have granted an extension. (R v Kansal (No 2) [2001] EWCA Crim 1260.) The immediate objective of the post Runciman reforms, to enable the Commission to refer historic or old miscarriage of justice cases in accordance with its judgment, and subject to the relevant statutory criteria, has been extended to change of law cases which were not then in direct contemplation.

Like the Court, the Commission is a creature of statute, and again like the court it is an independent body, which subject only to possible, and very rarely successful judicial review proceedings, is independent of the Court. Its independence, both when it is exercising its responsibilities, and in the public perception of the way in which those responsibilities are exercised, is one of its most valuable characteristics. However, although rightly vested with considerable authority, for the sound constitutional reasons appreciated by the Runciman Commission, the Commission was not vested with jurisdiction to quash criminal convictions. It is fundamental to the relationship between the court and the Commission, and the proper working of the constitutional arrangements, that the decision whether to quash a conviction continues to be the exclusive responsibility in the court. In relation to change of law cases however, if the Court is obliged to quash old convictions, returned in ignorance of subsequently “discovered” law, simply because the convictions are referred to it by the Commission, these principles are threatened. For the time being the court is bound by what we shall identify as the declaratory principle of the common law. In change of law case, the Court may therefore find itself obliged to quash a conviction simply because it is referred by the Commission. That infringes the constitutional proprieties.

In his illuminating commentary on this decision at [2007] CLR 384, Professor David Ormerod begins by observing that:

“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) [2001] 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 [2005], 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.

We have examined the arguments before the Divisional Court in R (DRCP), and we cannot discern that this constitutional question was closely addressed. The omission was significant. If it were intended that the Commission should ignore any aspect of the law and practice of the court, in particular for present purposes, in relation to “change of law” cases, its authority to do so would have been expressly provided in the legislative structure which created it. The legislation was clearly not intended to have this effect. On the contrary, it is a pre-condition to a reference that save in exceptional cases unless the defendant has unsuccessfully appealed against or made an unsuccessful application for leave to appeal against conviction, so that any remedy arising from his normal appeal rights is exhausted, he should first apply to the court. If he has not previously applied for leave to appeal, the court may refuse leave to appeal just because the application is out of time, and in change of law cases it will normally do so. If it does so, the legislative arrangements suggest again, that save in exceptional circumstances, the Commission should not refer cases on which this issue has already been addressed and decided adversely to the proposed appellant. Moreover the Commission, when considering whether to make a reference, may “refer any point on which they desire the assistance of the Court of Appeal to that Court, for the Court’s opinion on it; and on a reference under this sub-section the Court of Appeal shall consider the point “and furnish its opinions”. As these provisions of section 14 demonstrate the legislative framework clearly links the reference process to the law and practice of the court. In reality we cannot conceive of any circumstances in which the law and practice laid down in this Court can be ignored by the Commission when it is exercising its judgment whether to refer a conviction to the court. They are “so obviously material” to the decision to be made by the Commission that it would be contrary to the intention of Parliament for them to be disregarded. ( In re Findlay [1985] AC318)

The Divisional Court’s decision would have the effect of defeating, and certainly undermining, the “symmetry” identified by Professor Zellick in this penetrating observation to the Home Affairs Select Committee in June 2004:

“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.”

It would indeed be disturbing, and we believe productive of public disquiet, if the Commission were to adopt an approach to change of law cases which conflicted with the approach of the court. We would not see this as a “healthy” tension. Indeed we see no reason for tension. The Court and the Commission are equally concerned about possible miscarriages of justice, and unsafe convictions. Convictions referred by the Commission to the Court are frequently quashed, but not always. The differences reflect the conditions which govern the exercise of their respective functions. The Commission refers cases where there is a “real possibility” that the conviction “would not be upheld”: the court quashes convictions which are unsafe. This should not be productive of tension. Both bodies are independently exercising their constitutional responsibilities, and they do so applying different tests. In short, in our judgment, the mutual independences of the Commission and the Court are not damaged by the application of comity and coherence in relation to change of law cases.

The present cases illustrate two facets of the problem, but do not address a third. Cottrell has never appealed. The change of law in his case came long after the time for appealing had expired. Fletcher appealed, and his appeal was heard and decided after the change of law had taken place. If we may say so, the decisions of the Commission in both cases were entirely correct. However neither case involved an application to the Commission on the basis of the change of law following R v J, in the context of a conviction returned at the same time as, or earlier than Cottrell, in which there had been an unsuccessful appeal on different grounds. For cases in this third category, when the opportunity for a further application is no longer available, it would be productive of discord and uncertainty if the Commission were to ignore the policy of the Court, as illustrated by the decision in the Cottrell application.

At the hearing, without making any formal concessions, Professor Zellick appeared inclined to accept that the Commission might be prepared to revert to its earlier guidance that it would have regard to the practice of the court in change of law cases. We must go further. In our judgment, in these cases, it is not open to the Commission lawfully to apply a policy based on the conclusion of the Divisional Court that it was “under no obligation to have regard to, still less to implement” the practice of the court. The practice must be addressed and evaluated in every case. Just as the court will not normally extend time, a conviction should not normally be referred on the basis of a change of law. We repeat paragraph 46 of this judgment. In the final analysis, however, provided the Commission addresses and gives proper weight to the law and practice of the court, it must exercise its own independent and fact specific judgment whether to refer a case.

We can now return to Cottrell’s application, which is well out of time. The complainant was groomed by the applicant and she fell in love with him. He was in fact guilty of indecent assault on her, not only because full intercourse took place, but because he had touched and handled her indecently. Her seduced consent to sexual activity provided no defence. But for the practice now deemed impermissible Cottrell could have been indicted for indecent assault in relation to underage sexual activity, and from the jury verdict it is clear that he would have been convicted. It would be a manifest injustice to the complainant if he were able to take advantage of that part of the change of law which suited him, without having to accept the inevitable consequences of the process which would have applied to this case if the erroneous practice had been recognised earlier, and the necessary adaptations to it adopted. This case falls well within the long established principles which this court has applied to extensions of time in change of law cases. The only possible ground of appeal is based on the change of law. The refusal of this application will produce no injustice. Therefore it is refused.

Under the present legislation a conviction must be quashed if it is unsafe. The declaratory theory of the common law appears remote from the practical realities which should underpin the administration of criminal justice. . Nevertheless the common law is not fossilised and one of its strengths is that it is indeed flexible and capable of development, and misconceptions and misunderstandings of legal principles can and should where necessary be corrected and elucidated. This judgment has sought to underline that there is a broad public interest about the way in which change of law appeals should be addressed. We share the views of the Divisional Court in R (DRCP) that these issues merit the attention of Parliament.