Director of Public Prosecutions, Ex Parte Kebeline and Others, R v.

The House of Lords allowed the appeal and quashed the Divisional Court's declaration that the Director of Public Prosecutions' continuing consent to prosecute under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 was unlawful. The Lords held that, absent dishonesty, mala fides or some other wholly exceptional circumstance, the Director's decision to consent to prosecute is not amenable to judicial review during the course of an indictment trial because such review would risk satellite litigation and disruption of the criminal process. The court rejected the respondents' legitimate expectation argument based on the Human Rights Act 1998 and treated issues of statutory interpretation and compatibility with Article 6(2) of the European Convention as arguable but properly to be resolved in the trial and on appeal when the Human Rights Act comes into force.

This was an appeal from the Divisional Court which had granted a declaration that the Director of Public Prosecutions (DPP) acted unlawfully in continuing prosecutions under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 after the trial judge had ruled that section 16A was incompatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights.

Background and parties: Three Algerian nationals (the respondents) were charged under section 16A with possession of articles in circumstances giving rise to a reasonable suspicion that they were connected with terrorism. The trial judge ruled that section 16A was incompatible with Article 6(2). The DPP, having taken counsel's advice, decided to continue the prosecution. The defendants applied for judicial review seeking a declaration that the DPP's continuing consent was unlawful.

Nature of the claim: The applicants sought judicial review of the DPP's continuing decision to consent under section 19(1)(aa) of the 1989 Act and a declaration that that decision involved an error of law because section 16A was incompatible with Article 6(2).

Issues framed by the court:

• whether the Divisional Court had failed to respect Parliamentary sovereignty when addressing section 16A in light of the Human Rights Act 1998;
• whether there was a legitimate expectation that the DPP would exercise consent in accordance with Article 6(2) pending full commencement of the Human Rights Act;
• whether section 29(3) of the Supreme Court Act 1981 or common law principles precluded judicial review of the DPP's consent;
• whether section 16A(1) and (3) impose a reverse legal burden of proof; and
• whether any reverse burden would be incompatible with Article 6(2).

Reasoning and disposition: The House rejected the legitimate expectation argument based on section 22(4) of the Human Rights Act 1998. It accepted that the HRA preserves parliamentary sovereignty and that, where the HRA is not yet in force, courts cannot disapply primary legislation. The Lords concluded that, save in cases of dishonesty, mala fides or exceptional circumstances, the DPP's decision to prosecute is not amenable to judicial review because allowing routine collateral challenges would risk disorderly satellite litigation and disrupt criminal proceedings; the proper forum to resolve arguable questions of statutory interpretation and Convention compatibility is the trial process and (if necessary) appeal. On the merits of the Convention point the Lords observed the compatibility issues were arguable and left them to be decided in the criminal process. The appeal was allowed and the Divisional Court's orders were quashed.

Appeal allowed. The House held that, absent dishonesty, mala fides or wholly exceptional circumstances, the DPP's decision to consent to prosecution under section 16A is not normally amenable to judicial review during the course of an indictment because such collateral challenges risk satellite litigation and disruption of the criminal process. The Human Rights Act 1998 does not give rise to a legitimate expectation that the DPP would refuse consent prior to the Act's coming into force; issues of interpretation and compatibility with Article 6(2) remain arguable and are to be resolved in the trial and on appeal.

Appeal from the Divisional Court of the Queen's Bench Division which had granted a declaration that the DPP's decision to continue the prosecutions was unlawful (Divisional Court decision reported at [1999] 3 W.L.R. 175). Leave to apply for judicial review was granted by Turner J. on 26 January 1999; the matter proceeded to the Divisional Court and thence to the House of Lords.