Extradition and retrospectivity

Earlier this month the House of Lords allowed an appeal, preventing the extradition to the US of a man on charges of price-fixing, contrary to the US Sherman Act. The law lords held that simple price-fixing is not, and never has been an offence at common law, and that to declare it so now would be a breach of the principle of legal certainty. The judgment confirmed that price-fixing prior to the coming into force of the Enterprise Act 2002 cannot found criminal liability. The appellant’s conduct was, importantly, before the date when the Act created certain “cartel offences”.

RETROSPECTIVE JUSTICE

This decision raises an interesting question over the controversial issues of retrospective justice should you be tried for committing an offence which was not an offence when you committed it? A contentious example of the issue can be seen with the drafting of Count Two of the crimes indicted at Nuremberg against the Nazi’s, Crimes against Peace. The factual basis of the allegation was, on the prosecution’s case, encompassed within the previous six years, when Germany invaded or occupied sovereign states, from Austria in 1938 to Italy in 1943. But the concept that embarking upon an aggressive war was a crime was then unknown to international jurisprudence. In other words, if the German hierarchy had committed a criminal office they could not have been aware of doing so at the time. It is easy to see the wisdom of the House of Lords in ruling against extradition for an “offence” of price-fixing which did not exist at the time, but the same principles applied to Count Two at the Nuremberg trials. Sometimes it is difficult to take emotion, or perhaps, morals out of the law.

THE CRIMINAL JUSTICE & IMMIGRATION BILL

This is the 57th Criminal Justice Bill since New Labour came to power in 1997. But there are signs that the government is running out of steam. Thankfully it has now dropped cl 42 of the Bill which sought to enact that a conviction is not unsafe if the Court of Appeal thinks there is no reasonable doubt about the defendant’s guilt. Furthermore, cl 42 stated that the court should not be required to dismiss an appeal if it thought that it would seriously undermine the proper administration of justice.

This was a pernicious initiative which many commentators said would have altered the role of the Court of Appeal from being a court of review to a finder of fact. But the Appellate court can already assume a fact finding role when it has to consider whether fresh evidence is palpable enough to warrant a re-trial. Under the Criminal Appeal Act 1968, s 23 the Court of Appeal will only give leave to call fresh evidence, if, among other matters, it considers the evidence “capable of belief”. This goes beyond admissibility and ventures into fact-finding territory, which on my last researches, was still the province of the jury—unless there has been a 58th Bill since I began this piece!

Had this proposal gone any further than simply being encapsulated in a Bill, it would have not only involved a further encroachment into the role of the jury but it would also have undermined the developing law on Abuse of Process. Many of the decisions which result in the quashing of convictions are achieved through fundamental breaches of procedure designed to protect the defendant. It is of concern that the Government should have initially supported a proposal which would have fundamentally diluted the protection offered by a painstaking canon of law, the sole purpose of which was to afford protection of the citizen from the abuses of the executive.

VHCCS

The latest, rather desperate sounding salvo from the Legal Services

Commission (LSC) is that if barristers not sign-up for this package, then solicitors will be entitled to instruct barristers who had not previously been accredited with panel status and who, I presume, might not have been vetted as competent to do the job. This is causing considerable anger within solicitors’ offices and perhaps understandably— why should they have had to go through a rigorous and complex accreditation process to ensure that they were of the requisite quality to do high cost work, when the Bar might be able to field a restricted and ad hoc pool of practitioners completely lacking in formal quality control? Another example of retrospective thinking by the LSC perhaps?