Belhaj & Anor v Director of Public Prosecutions & Anor [2018] UKSC 33; [2018] 2 Cr App R 33

In Belhaj & Anor v Director of Public Prosecutions & Anor [2018] UKSC 33, the Supreme Court held by a 3–2 majority that judicial review proceedings challenging a decision not to prosecute constitute “proceedings in a criminal cause or matter” within section 6(11) of the Justice and Security Act 2013 and are therefore excluded from the closed material procedure under Part 2 of that Act.

The Appellants, Mr Belhaj and Ms Boudchar, contended that they had been abducted, maltreated and eventually rendered to Libya with the connivance of the British Secret Intelligence Service. In 2016 the Director of Public Prosecutions decided not to prosecute Sir Mark Allen for involvement in these events, citing the high classification of the evidence. The Appellants sought judicial review. The Secretary of State for Foreign and Commonwealth Affairs applied for a declaration under section 6 of the 2013 Act permitting a closed material application to be made to the court in respect of sensitive documents that could not be disclosed to the Appellants. The Appellants challenged the court’s jurisdiction on the ground that the judicial review was a proceeding in a criminal cause or matter and therefore fell outside the “relevant civil proceedings” to which section 6 applies.

The Divisional Court (Irwin LJ and Popplewell J) rejected that challenge. The Divisional Court reasoned that proceedings by way of judicial review of a prosecutorial decision are a means of holding the executive to account and do not decide criminal liability, so should be classified as civil. It considered the alternative to closed material procedure would be a successful claim to public interest immunity, removing material from scrutiny altogether.

On appeal, the Appellants advanced two interpretative arguments. First, they invoked the principle of legality, contending that closed material procedure curtails fundamental common law rights to open and natural justice and therefore that any statutory provision authorising it should be given the narrowest construction, so that the exception for criminal causes or matters should be read expansively. Secondly, they relied on the Barras principle, submitting that where a doubtful phrase has received clear judicial interpretation, subsequent statutes using that phrase in a similar context must be construed in accordance with that established meaning. The phrase “criminal cause or matter” had been interpreted broadly in authorities concerning routes of appeal under the Judicature Acts 1873–1925 and section 18(1)(a) of the Senior Courts Act 1981 to encompass applications for judicial review of prosecutorial decisions.

Lord Sumption (with whom Lady Hale agreed) delivered the leading judgment allowing the appeal. He rejected the principle of legality argument, holding that the 2013 Act plainly intended to curtail fundamental common law rights and the only questions were on what conditions and in what proceedings; those questions must be answered on ordinary principles of construction without presumptions in either direction. He also took the view that the Barras principle provided little assistance because it applied only to doubtful words deriving meaning from context and here the words spoke for themselves. Lord Sumption emphasised that judicial review is an integral part of the criminal justice system. He noted that the High Court exercises extensive criminal jurisdiction by way of review over the decisions of police, prosecutors, magistrates, and the Crown Court (save in relation to trials on indictment). He cited the well‑established definition in Ex p Alice Woodhall (1888) 20 QBD 832, approved in Provincial Cinematograph Theatres Ltd v Newcastle upon Tyne Profiteering Committee (1921) 90 LJ (KB) 1064 and Amand v Secretary of State for Home Affairs [1943] AC 147, that the phrase applies to any judicial determination of a question whose subject‑matter is criminal, at whatever stage the question arises. Judicial review of a decision not to prosecute was, in its ordinary and natural meaning, a proceeding in a criminal matter, being an attempt to require the Director to prosecute. He noted that it would be strange if the draftsman had intended to distinguish between different procedures having the same criminal subject‑matter and being part of the same criminal process. He examined the rationale for the exclusion stated in the Green Paper, namely that in criminal proceedings the prosecution can avoid disclosure by withdrawing the charge, whereas in civil claims the state has no power of withdrawal. He considered the present factual matrix did not fit the rationale and that it would be artificial to test rival interpretations by reference to it. In any event, the state could respond to a judicial review by a claim to public interest immunity. Lord Sumption concluded that statutory context and purpose did not call for any narrower view than the words themselves suggest.

Lord Mance agreed. He considered that a challenge to a decision to prosecute or a decision not to prosecute, the point of which would be to lead to a prosecution, falls naturally within “proceedings in a criminal cause or matter”. He accepted that an extradition hearing would be such a proceeding and found it difficult to see how the present case could be distinguished. He examined the rationale in the Green Paper, which concerned the state’s ability to withdraw criminal proceedings rather than disclose, and noted that the rationale did not depend on who was challenging the decision; the executive can dispose of both types of judicial review by withdrawing the prosecution. He did not consider the unusual situation of a third party challenge to a decision not to prosecute could guide Parliament’s presumed intention. The phrase bore its natural meaning and the rationale for exclusion provided no support for a narrower interpretation.

Lord Lloyd‑Jones delivered a dissenting judgment with which Lord Wilson agreed. He considered that the principle of legality had no application to the specific issue. Part 2 of the 2013 Act represented Parliament’s detailed assessment of the balance between open justice, natural justice and national security, with built‑in safeguards including the requirement in section 14(2)(c) that nothing be read as requiring a court to act inconsistently with article 6 ECHR. He also rejected reliance on the Barras principle. He noted that the principle applies only where the same language is used in a subsequent statute dealing with the same subject matter and in a similar context, and that in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (No 2) [2013] QB 618 the Court of Appeal had held that “criminal cause or matter” need not have one meaning but may be interpreted differently depending on statutory context. Considering the words in their natural meaning, Lord Lloyd‑Jones considered that “cause” covers criminal proceedings resulting in conviction or acquittal and “matter” may extend to ancillary applications and to analogous proceedings such as extradition, but not to a public law challenge to a decision as to whether to initiate proceedings. The judicial review was a proceeding in the Administrative Court, extraneous to the criminal process, at least one remove from a criminal cause or matter. He referred to the Green Paper, which identified two reasons for excluding criminal proceedings: the objections to conviction on secret evidence and the more onerous article 6 obligations in criminal proceedings. Neither applied here. He accepted the submission that the core concern was that closed material procedure should not be available in any case where criminal guilt is being decided. Here the court was determining the legality of the decision maker’s conduct. He added that in a judicial review of a decision to prosecute, a closed material procedure would be pointless because potentially incriminating material could not be used at trial and potentially exculpatory material would have to be disclosed. In a challenge to a decision not to prosecute, by contrast, the rationale for exclusion had no application, the Director could not withdraw the proceedings, and no reason of principle was advanced against availability of the procedure.

In short, by a majority the Supreme Court held that judicial review of a prosecutorial decision is a proceeding in a criminal cause or matter for the purpose of section 6 of the Justice and Security Act 2013 and therefore excluded from the closed material procedure, notwithstanding that such exclusion forecloses what might otherwise be a means of doing substantial justice where national security is in issue.

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