R v Director of Public Prosecutions, Ex p Kebilene (R v Director of Public Prosecutions, Ex parte Rechachi)

A decision by the Director of Public Prosecutions to consent to a prosecution is ordinarily not amenable to judicial review unless dishonesty, bad faith or another exceptional circumstance is shown. A complaint which can be determined at trial or on appeal should normally remain within the criminal process. Satellite proceedings which delay a trial on indictment should be permitted only rarely.

Section 29(3) of the Supreme Court Act 1981 did not itself remove the High Court’s jurisdiction to review the prosecutor, but its policy strongly supported that restraint. Inoperative provisions of the Human Rights Act 1998 created no legitimate expectation that prosecutorial discretion would already be exercised as if Convention rights were incorporated. Whether the terrorism offence imposed an incompatible reverse legal burden remained open for determination in the criminal proceedings.

Three Algerian nationals were being prosecuted under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 for possessing articles in circumstances giving rise to reasonable suspicion of a terrorist purpose. After the trial judge ruled that the provision conflicted with article 6(2) of the European Convention, the Director of Public Prosecutions maintained his consent to the prosecutions. The first jury was later discharged because of disclosure difficulties.

The defendants sought judicial review of the Director’s continuing decision to prosecute. The Divisional Court declared that decision unlawful: [1999] EWHC Admin 277; [1999] 3 WLR 175. Proceedings against Mr Rechachi, which had concerned section 16B, were subsequently abandoned.

The House considered whether judicial review was available, whether the prospective Human Rights Act 1998 created a legitimate expectation, and whether it was appropriate to decide the construction and Convention compatibility of section 16A before the criminal proceedings had concluded.

1. Appeal allowed unanimously. The House quashed the Divisional Court’s orders and dismissed the applications for judicial review.

2. Per Lord Steyn, whose reasons Lord Slynn expressly adopted, a decision of the Director of Public Prosecutions to consent to a prosecution was not amenable to judicial review in the absence of dishonesty, bad faith or another exceptional circumstance. Lord Hope allowed the appeal on the same ground. Lord Cooke accepted the general rule that proceedings on indictment should not be delayed by collateral challenges. The defendants could raise questions concerning the burden of proof, Convention compatibility and abuse of process at trial and, if convicted, on appeal. The present case was not exceptional.

3. Per Lord Steyn, section 29(3) of the Supreme Court Act 1981 excluded review of orders directed to and affecting the Crown Court’s jurisdiction in matters relating to trial on indictment. It did not, on its language, directly remove jurisdiction to review the prosecutor. Its underlying policy nevertheless supplied a powerful analogy: a party could not ordinarily evade the statutory restriction by presenting an issue arising in the criminal trial as a challenge to the prosecutor. Lord Hobhouse would have held that section 29(3) itself precluded the application because the subject matter arose directly from the indictment.

4. Per Lord Steyn, the Divisional Court’s approach did not infringe parliamentary sovereignty merely because it examined legal advice on Convention compatibility which the Director had chosen to consider. The Human Rights Act 1998, however, preserved parliamentary sovereignty. Even after commencement, legislation which could not be interpreted compatibly would remain valid notwithstanding a declaration of incompatibility. Its uncommenced central provisions could not create a legitimate expectation that the Director would act as though those provisions were already law.

5. The House declined to decide whether section 16A(1) and (3) imposed a persuasive legal burden or whether any such burden was incompatible with article 6(2). Per Lord Steyn, those issues were arguable and remained entirely open in the criminal proceedings. Lord Cooke stressed that the trial judge and appellate courts should not be fettered by observations in the House.

6. Lord Hope, in significant obiter observations, distinguished an evidential burden, which merely requires sufficient evidence to raise an issue while leaving proof with the prosecution, from a persuasive burden requiring proof on the balance of probabilities. He considered that compatibility of a persuasive reverse burden required an assessment of reasonable limits and proportionality, including what the prosecution must prove, the accused’s ability to prove the relevant matter, and the nature of the social threat. He reached no concluded view on the compatibility of section 16A.

1. House of Lords: The appeal was allowed unanimously. The orders declaring the Director’s decision unlawful were quashed, and the judicial review applications were dismissed: [2000] 2 AC 326.

2. Divisional Court of the Queen’s Bench Division: The court declared the Director’s continuing decision to prosecute unlawful because it considered section 16A incompatible with article 6(2): [1999] EWHC Admin 277; [1999] 3 WLR 175.

3. Crown Court: The trial judge ruled that section 16A conflicted with article 6(2), but refused to stay the prosecution as an abuse of process. The jury was later discharged because the prosecution required a lengthy adjournment to complete disclosure.