Belhaj & Anor v Director of Public Prosecutions & Anor [2018] UKSC 33

Mr Belhaj and his wife alleged MI6 complicity in their rendition and torture. After the DPP declined to prosecute Sir Mark Allen, they sought judicial review. The Supreme Court held that such proceedings were 'in a criminal cause or matter', excluding closed material procedure under the Justice and Security Act 2013.

Facts

The first appellant, Mr Belhaj, was a political opponent of Colonel Gaddafi. He and his wife, Ms Boudchar, alleged that they had been abducted, maltreated, and rendered to Libya by agents of Malaysia, Thailand and the United States, where they were imprisoned and tortured. They contended that this was done with the connivance of the British Secret Intelligence Service, particularly Sir Mark Allen. HM Government neither confirmed nor denied Sir Mark’s involvement.

Following a Metropolitan Police investigation commenced in 2012, the Director of Public Prosecutions announced on 9 June 2016 that no prosecutions would be brought, citing insufficient evidence. The decision was based on consideration of some 28,000 pages of classified material (TOP SECRET – STRAP 2) which could not be disclosed to the appellants. An internal review by another senior CPS prosecutor reached the same conclusion.

The appellants sought judicial review of the decision not to prosecute Sir Mark Allen, on grounds including irrationality and inconsistency with the evidence. The Secretary of State applied for a declaration under section 6 of the Justice and Security Act 2013 permitting a closed material procedure (CMP). The appellants challenged the court’s jurisdiction to make such a declaration, contending the proceedings were ‘proceedings in a criminal cause or matter’ and thus excluded from CMP.

Issues

The single certified question was whether judicial review of a decision by the DPP not to prosecute constitutes ‘proceedings in a criminal cause or matter’ within section 6(1) and 6(11) of the Justice and Security Act 2013, thereby excluding the court’s jurisdiction to entertain an application for a section 6 declaration permitting closed material procedure.

Arguments

Appellants

Mr Jaffey QC argued that closed material procedure represents a curtailment of fundamental common law rights and, applying the principle of legality derived from R v Secretary of State for the Home Department, Ex p Simms, any statutory authorisation should be given the narrowest possible construction. He relied on the line of authority interpreting ‘criminal cause or matter’ in the context of rights of appeal (the Barras principle), arguing the phrase had an established judicial meaning that Parliament must be taken to have adopted.

Respondents

Mr Eadie QC, for the Secretary of State, accepted that the phrase had been interpreted broadly in the appeal context but argued that its meaning in the 2013 Act should be narrower, confined essentially to proceedings in which criminal guilt is determined. The Divisional Court had held that judicial review of prosecutorial decisions is properly classified as civil because it does not determine criminal liability but holds the executive to account.

Judgment

The Supreme Court (Lady Hale, Lord Mance and Lord Sumption in the majority; Lord Wilson and Lord Lloyd-Jones dissenting) allowed the appeal.

Lord Sumption (with whom Lady Hale agreed)

Lord Sumption rejected the application of the principle of legality, observing that Parliament had plainly intended to curtail common law rights in a defined manner, leaving little scope for interpretive presumptions. He also considered the Barras principle of limited assistance given the different statutory context.

However, Lord Sumption concluded that the ordinary and natural meaning of ‘proceedings in a criminal cause or matter’ encompasses judicial review of decisions made in a criminal cause. The High Court exercises an extensive criminal jurisdiction by way of review over police, prosecutorial and magistrates’ decisions, and judicial review is an integral part of the criminal justice system. He drew upon the reasoning of Lord Esher MR in Ex p Alice Woodhall and Lord Wright in Amand v Secretary of State for Home Affairs, who had construed the phrase as referring to the subject-matter of the underlying proceedings.

He noted Mr Eadie’s concession that judicial review of an extradition order would be a proceeding in a criminal cause or matter even for section 6 purposes, and found it impossible to distinguish the present case. The reality was that the application sought to require the DPP to prosecute Sir Mark Allen, which was as much a criminal matter as the original decision. The rationale for the exclusion—that the executive can withdraw a prosecution to protect sensitive material rather than rely on CMP—did not require a narrower construction.

Lord Mance

Lord Mance agreed in the result. He examined the rationale for excluding criminal causes or matters from CMP, observing that the exclusion protects defendants from being convicted on secret evidence. While this rationale was less clearly applicable to a challenge by victims to a decision not to prosecute, he concluded that the natural meaning of the phrase covered the proceedings, and the Crown could potentially rely on the presumption of regularity of its decision (citing R (Haralambous) v Crown Court at St Albans).

Lord Lloyd-Jones (dissenting, with whom Lord Wilson agreed)

Lord Lloyd-Jones would have dismissed the appeal, holding that ‘proceedings in a criminal cause or matter’ need not carry a single meaning across statutes (as confirmed in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (No 2)). In their natural meaning, the words did not extend to judicial review of a prosecutorial decision, which was a public law challenge extraneous to the criminal process. The rationale in the Green Paper—concerning conviction on secret evidence and the heightened article 6 obligations in criminal trials—had no application to judicial review proceedings where the conflict between open justice and national security could appropriately be resolved under Parliament’s statutory compromise.

Implications

The decision establishes that judicial review of prosecutorial decisions by the DPP constitutes ‘proceedings in a criminal cause or matter’ for the purposes of section 6 of the Justice and Security Act 2013, with the consequence that the closed material procedure is unavailable in such proceedings. The court’s jurisdiction to grant a section 6 declaration is therefore excluded.

The judgment affirms the continuing relevance of the long-established interpretation of ‘criminal cause or matter’ developed in the context of rights of appeal, and confirms that the ordinary meaning of the phrase extends to ancillary and supervisory proceedings whose subject-matter is criminal. It constrains the government’s ability to rely on CMP where victims or third parties challenge decisions not to prosecute involving sensitive national security material. In such cases, the state must rely instead on public interest immunity, or accept the presumption of regularity of its decision.

The decision is significant for practitioners conducting judicial reviews of prosecutorial, police or extradition decisions involving classified material, and for government departments defending such challenges. It preserves the common law principles of open and natural justice in the criminal context against statutory erosion, while leaving the CMP regime in civil proceedings (such as the parallel Belhaj v Straw damages claim) unaffected. The closeness of the division (3:2) and Lord Mance’s acknowledgment that the case was ‘finely balanced’ indicate that the boundary between civil and criminal proceedings for these purposes may remain a site of future litigation.

Verdict: Appeal allowed. The Supreme Court declared that judicial review proceedings challenging the DPP’s decision not to prosecute constitute ‘proceedings in a criminal cause or matter’ within section 6(1) and 6(11) of the Justice and Security Act 2013, with the result that the court has no jurisdiction to entertain an application for a section 6 declaration permitting a closed material procedure.

Source: Belhaj & Anor v Director of Public Prosecutions & Anor [2018] UKSC 33