The Supreme Court held that judicial review of the Director of Public Prosecutions’ decision not to prosecute is “proceedings in a criminal cause or matter” under the Justice and Security Act 2013. Closed material procedure is therefore unavailable. The majority reached that conclusion from the ordinary meaning of the words and their long-standing use in the law governing appeals.
Mr Belhaj and Ms Boudchar alleged that UK officials had been involved in their rendition to Libya. A police investigation led to a decision by the Director of Public Prosecutions that no prosecution should be brought. The Supreme Court appeal concerned procedure in the ensuing judicial review.
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The appellants challenged the Director’s decision. When the government sought to use closed material, a preliminary question arose about whether the statute gave the court that power in this type of proceeding.
Closed material procedure and the 2013 Act
At common law, material cannot ordinarily be put before the court without disclosure to the parties. Closed material procedure, under which sensitive material is shown to the court and a special advocate but not to a party, therefore requires statutory authority. Part 2 of the 2013 Act supplies that authority for “relevant civil proceedings”. Those are defined as proceedings in the High Court, Court of Appeal, Court of Session or Supreme Court other than “proceedings in a criminal cause or matter”. A declaration may be made only if a party would be required to disclose sensitive material—material whose disclosure would damage national security—or would be so required but for public-interest immunity or certain other rules, and if the declaration is in the interests of the fair and effective administration of justice. The Act requires the declaration to be kept under review, provides for special advocates, and states that nothing in the scheme requires a court to act inconsistently with article 6 of the European Convention on Human Rights.
The Divisional Court held that the judicial review was not a criminal cause or matter. It reasoned that such a review does not decide criminal liability but holds the prosecuting authority to account, and that without closed material procedure a public-interest immunity claim would probably remove the sensitive material from the court’s scrutiny altogether. It certified the question whether judicial review of a decision not to prosecute is “proceedings in a criminal cause or matter” for the purposes of section 6, and therefore whether the court has jurisdiction to entertain a section 6 application.
The majority
Lord Sumption, with whom Lady Hale agreed, held that the appellants were entitled to succeed. In its ordinary meaning, “proceedings in a criminal cause or matter” include judicial review of a decision made in a criminal cause, and nothing in the context or purpose of the 2013 Act required a different meaning. The High Court’s supervisory jurisdiction is an integral part of the criminal justice system and extends to decisions of prosecutors whether or not to prosecute. Judicial review is not inherently civil; it depends on the subject-matter.
The same phrase has, since the Supreme Court of Judicature Act 1873, excluded certain appeals from the Court of Appeal. It has been held to apply to a judicial determination of any question raised in or with regard to proceedings whose subject-matter is criminal, at whatever stage. In Amand, Lord Wright treated proceedings in the Divisional Court as part of the matter before the magistrate: if that matter, carried to its conclusion, might result in conviction and punishment, orders made in it were made in a criminal cause or matter. The Director and the Secretary of State accepted that, on those authorities, this judicial review was a criminal cause or matter for appeal purposes. Lord Sumption considered that the same natural meaning applied under the 2013 Act. The reality of the application was an attempt to require the Director to prosecute Sir Mark Allen, which was as much a criminal matter as the original decision. Parliament was unlikely to have intended to distinguish different procedures with the same criminal subject-matter.
Neither the principle of legality nor the presumption that Parliament adopts an earlier judicial interpretation of the same words required a narrower exception. Parliament had deliberately authorised a curtailment of common-law rights in relevant civil proceedings, subject to statutory safeguards. The contexts of the appeal statutes and the 2013 Act were also different. The purpose of the distinction, as explained in the Justice and Security Green Paper, was that criminal proceedings are subject to stricter fair-trial requirements and that the prosecution controls the process: it must disclose potentially exculpatory unused material, but if public-interest immunity is refused it can abandon the prosecution. That rationale did not require closed material procedure to be available in an ancillary judicial review when it would not be available at a trial. The unusual combination of an independent decision not to prosecute, undisclosed evidential reasoning, and a third-party challenge did not justify testing the statute by reference to this particular scenario.
Lord Mance agreed that the appeal should be allowed. A judicial-review challenge to a decision to prosecute, or to a decision not to prosecute whose point was to lead to a prosecution, fell naturally within the concept, as did an extradition hearing. The Green Paper had spoken of excluding “criminal proceedings”, but the Act deliberately used the wider phrase “proceedings in a criminal cause or matter”. The rationale was to protect an accused by ensuring that potentially exonerating material is either disclosed or the charge withdrawn, not to facilitate proceedings against an accused. That rationale did not support a closed material procedure in the present, less familiar, challenge by alleged victims to a decision not to prosecute, and the unusual facts of this case were not a reliable guide to Parliament’s intention.
The dissent
Lord Lloyd-Jones, with whom Lord Wilson agreed, would have dismissed the appeal. He accepted that closed material procedure restricts open justice and natural justice, but considered that the principle of legality did not require an expansive reading of the exception. Part 2 of the 2013 Act was Parliament’s detailed balance, already containing safeguards, including consistency with article 6. The presumption of consistent interpretation also did not apply: the appeal cases and the 2013 Act arose in very different contexts, and the same phrase can bear different meanings in different statutes.
In their natural meaning, he considered, the words cover proceedings resulting in conviction or acquittal and certain ancillary applications, but not this public-law challenge to a decision whether to initiate criminal proceedings. The application was heard in the Administrative Court, was extraneous to the criminal process, and was at least one remove from a criminal cause or matter. The Green Paper and Explanatory Notes showed that the exclusion was directed at criminal proceedings, where the objections to conviction on secret evidence are obvious, article 6 requirements are more onerous, and the prosecutor can discontinue rather than disclose sensitive material. Neither reason applied to judicial review of a decision not to prosecute, in which the Director is the defendant and cannot withdraw the proceedings. The core concern was that closed material procedure should not be available where criminal guilt is being decided. These proceedings did not fall within that purpose.
Verdict: By three votes to two, the Court allowed the appeal. The judicial review was a proceeding in a criminal cause or matter and therefore outside the closed material procedure in section 6 of the Justice and Security Act 2013. The merits of the judicial review remained undecided.
Source: Belhaj and another v Director of Public Prosecutions and another [2018] UKSC 33
