Judges furious over plan to cut appeal court's powers

Judges furious over plan to cut appeal court's powers

· Flaws during trial would carry less weight
· Ministers suppress legal experts' criticisms

Clare Dyer, legal editor
Saturday October 6, 2007
The Guardian

The government has suppressed for more than six months an overwhelmingly hostile reaction by judges and legal experts to proposals to restrict the appeal court's powers to quash convictions. Senior appeal court judges, the council of circuit judges, the Criminal Cases Review Commission (CCRC) and, in a personal response, its chairman, Graham Zellick, all lambasted the plans in unpublished responses, the Guardian has learned.

Other bodies, including the Law Society, the Criminal Bar Association and the campaigning groups Justice and Liberty, have made their objections public. But the government has ignored Cabinet Office guidelines on publishing the responses to consultations, though the measures are now part of a bill due for a second reading next week.

The measure, which would require judges to uphold a conviction if they thought the defendant was guilty despite flaws in the trial or pre-trial process, has been incorporated in the criminal justice and immigration bill, scheduled for second reading next Monday. Ministers have responded in part to the outcry by adding a new provision that judges need not uphold the conviction if they believe this would be incompatible with the defendant's human rights.

But John Spencer, professor of law at Cambridge University, said that did not resolve concerns about the measure. "I think it's an attempt to push through something unacceptable by putting some dressing round the edge of it, and it should be resisted." He said the failure to publish the responses was "scandalous" and described the provision as "a piece of populist nonsense which I hope the House of Lords will throw out".

Ministers insisted the law needed to be changed to stop criminals "getting away" with their crimes. They were particularly exercised by the case of Nicholas Mullen, who had fled to Zimbabwe but was later jailed for his role in an IRA bombing campaign after British secret services had him illegally kidnapped and deported to Britain.

The court of appeal quashed his conviction in 1999, not on a technicality but because of an "extremely serious failure to adhere to the rule of law".

Judges say the law works well as it is. Under current law, they will not readily quash convictions because of trial or pre-trial flaws if they believe the jury would have convicted anyway, unless there has been some gross injustice in the process.

In the consultation paper, John Reid, then home secretary, said the government had already decided to go ahead with the change, and was consulting only on how it should be done. Professor Zellick, in his response, said the statement was "a disturbing departure from good government".