Curing awkward case law by retrospective legislation

The High Court judgment in the case of murder suspect Paul Hookway has caused a great deal of uncertainty  about the way in which the  detention provisions of the Police and Criminal Evidence Act 1984 (“PACE”) have been interpreted and operated since it came into force on 1 January 1986.  However, the government response to this decision, through its emergency legislation to reverse the High Court ruling, illustrates how retrospective legislation can be used to change the law so that legal certainty is created by “restoring the position retrospectively”. In this way, the government hopes to avoid having to wait for the Supreme Court to come to its rescue.

It is well known that there is a presumption against retrospectivity in English law.  At its highest, this is exemplified in the principle that a person should not be held liable or punished for conduct that was not criminal when committed (and protected by Article 7 of the European Convention on Human Rights).  But the presumption against retrospectivity is not absolute and where a statute contains clear words that parliament intends a provision to have retrospective effect, it will be so interpreted, particularly where the statute relates to a procedural matter.

Section 1 of the Police (Detention and Bail) Act 2011 received royal assent on 12 July.  The Act reverses the effect of the decision in Hookway and has retrospective effect.  Section 1(3) provides that the amendments made to PACE “are deemed always to have had effect”.  The explanatory notes acknowledge that the retrospective effect of the Act extinguishes any claim for unlawful detention that could be brought up to the time of the commencement of the legislation, on the basis of the High Court decision.

The legislation signals the serious impact of the High Court decision in Hookway which could have given rise to thousands of claims for damages against police forces for unlawful detention.  The government’s response has been to take urgent measures to change the law as quickly as possible to protect the liability of the state.  The government’s justification for this was that unless the Act was retrospective, a large number of people could bring claims for damages.  The explanatory notes assert that such claims could be very disruptive to deal with and could impose a high overall cost on the legal system as well as hindering the conduct of many current criminal investigations.

The government has made it clear that an interference by retrospective legislation with a person’s rights under Article 8 ECHR (privacy and family life), and with their rights to bring compensation claims protected by Article 1 of Protocol 1 ECHR (protection of property rights), is capable of justification if it is in accordance with the law if it seeks to achieve a legitimate public aim and if the interference is proportionate to the policy aim.

The government will be hoping that this will be enough to stem the tide of claims by those unlawfully detained but it will have to wait for possible vindication through the judgment of the Supreme Court and it may still face claims and eventually an application to the European Court of Human Rights to test its assertion that the interference with the right to claim damages for unlawful detention was justified.  Against such claims will be that retrospective legislation is not prohibited, although it is relatively rare in the criminal justice sphere.  To determine whether the change was justifiable, the question will be whether a ‘fair balance’ has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.  The government will also be able to rely on the change being necessary to restore and reassert the original intention of the legislation (see National & Provincial Building Society and others v UK (1997) 25 EHRR 127).

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