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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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Are per incuriam decisions in the Court of Appeal retrospective?i.e

Customer Question

Hi,
Are per incuriam decisions in the Court of Appeal retrospective?
i.e. If I was sentenced according to an understanding of the Law that was correct at the time but it was later decided in another case that it had been "in error" can that decision be retrospectively applied back to myself?
I can't see how it can be? Because I can only offer defence or mitigation in accordance with what was a universal understanding of the Law at the time and the judge can only sentence in accordance with that as well.
If that precedent (which had been in place for years) is subsequently decided to have been made "per incuriam" surely it only applies from when that was decided, and can't be backdated to apply to every case sentenced prior to that?
Been scratching my head trying to find an answer so any precedents that have decided the status of per incuriam Judgements and their retrospective nature (or not) would be helpful..
Submitted: 2 years ago.
Category: Law
Expert:  Nicola-mod replied 2 years ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 2 years ago.

Feel free to keep looking! I've been looking for a long time and can't seem to find it codified anywhere or decided in case Law?

I think it's a very valid question though, and the point I make about only being able to offer a defence or mitigation in accordance with what the understanding of the Law is at the time is a perfectly good one, and I can't see how it then be decided that universal understanding was wrong and for a subsequent ruling to be retrospective?

Because it strips away any chance of a defence or mitigation at the time.

Let me know if you get anywhere?..

Thanks

Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Customer: replied 2 years ago.

Thanks,

But if you can't find anyone to come up with an answer, then find someone who's prepared to assist me in taking the issue to Judicial review.

Because I'm more than confident in my arguments that it's wrong, but I just need someone who's prepared to assist and offer advice in cutting through the sophistry of the legal process that is convinced and has the neccesary conviction I'm right as well.

I'm confident enough in my arguments that I'm right, and am happy to represent myself in challenging a decision that it is retrospective. All I'm really asking for in light of anyones inability to come up with an answer is some reasonably priced advice to assist me in doing this and the best way to go about it from someone who believes this principle is important?...

Because my experience of the legal profession is that they're happy to charge you fortunes for advice you can find out for yourself anyway with a bit of searching, but if anyone wishes to challenge the status quo (which this isn't, because nobodies ever addressed it that I can work out) then nobodies interested!

That's why I've ended up on your website....So have a look for a "professional" who is up for a challenge...

Or if you can't, give me my 47 quid back and continue fleecing pensioners worried about who's going to get custody of their cat if they snuff it, when they can get that advice or free anyway :) And don't moan at me if I feel I have to give you a bad review

Sorry about the tone, but I think I've raised a point?...

Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you. Please let me know here if at any point you would like a refund and I will process it for you.
Thank you for your patience,
Nicola
Customer: replied 2 years ago.

Ok then,

Try this one!

In a Supreme court ruling here:-

https://www.supremecourt.uk/decided-cases/docs/UKSC_2010_0022_Judgment.pdf

The final paragraph states this:-

"This decision does not permit closed cases to be re-opened. Although a judicial decision has retrospective effect, it does not affect cases which have been finally determined (namely, where an accused was convicted and did not appeal within the relevant time limits, or did appeal and the appeal has been finally disposed of)"


Does this apply just to this case or is it now a general principle of Law that has been decided? Because I've seen this Supreme Court case quoted in a couple of subsequent hearings where it states this is now recognised as a general principal that Judicial Law decisions cannot be retrospectively applied to cases already sentenced.

Is this correct? And if so I assume it is retrospective and a further Judicial decision that alters the interpretation of the Law cannot be retrospectively applied to a sentence made prior to that which had already been decided.

I'll give you my example.

I was convicted and sentenced in early 2004 in accordance with the Law at the time. Later that year a Court of Appeal decision changed the interpretation of the Law I was sentenced under and the police have then tried to state this was retrospective and could be applied to myself and my sentence increased.

I don't believe they can do this and have been arguing the toss with them for years..

Let me know

Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola