Appeal From R. Prosecution Service Under Section 58 of the Criminal Justice Act 2003 Sub Nom R v I.K.,a.B., and K.A.

The rule against double jeopardy is a plea in bar only where both the earlier and later proceedings are criminal. A non-criminal determination, including one made by SIAC under the certification regime, does not prevent a subsequent criminal prosecution. Alleged unfairness, oppression or abuse outside that rule remains subject to the ordinary abuse-of-process jurisdiction.

Successive criminal prosecutions require consideration of whether they are founded on the same or substantially the same facts. A later terrorism prosecution was not barred where earlier forgery proceedings neither alleged terrorist activity nor rested on the evidence supporting the later charges. The mere existence of material which might have prompted further investigation did not establish double jeopardy or require the prosecution to defer the earlier case.

The Crown appealed under section 58 of the Criminal Justice Act 2003 against Mackay J’s orders staying terrorism proceedings against IK, AB and KA.

IK had successfully challenged in SIAC a certificate issued under section 21 of the Anti-Terrorism, Crime and Security Act 2001. The judge held that a later criminal trial would amount to double jeopardy. AB and KA had earlier pleaded guilty to forgery offences at Birmingham Crown Court. The judge held that later terrorism charges were barred because the prosecution should have investigated their possible terrorist implications before those convictions.

The central questions were whether double jeopardy extended to SIAC proceedings and whether the earlier forgery convictions were founded on the same or substantially the same facts as the terrorism charges.

1. The prosecution appeals were allowed. The stays were reversed and the proceedings against all three defendants were ordered to resume in the Crown Court.

2. Double jeopardy is available as a plea in bar only when both sets of proceedings are criminal. SIAC certification proceedings could result in detention, but IK was not prosecuted, at risk of conviction, or punished for an offence. SIAC was not a competent criminal court. Its decision turned critically on the absence of material linking IK to Al Qaeda, whereas the proposed trial concerned broader terrorist allegations supported by substantial additional evidence. There was therefore no inconsistent determination and no basis to extend double jeopardy to the SIAC process.

3. Any unfairness, oppression or abuse arising outside the established double-jeopardy rule should be addressed through the ordinary abuse-of-process jurisdiction. The trial judge retained control over any issue concerning use at trial of statements made in the SIAC process.

4. The earlier forgery proceedings against AB and KA did not bar the terrorism prosecution. The forgery case involved no allegation of terrorist activity. The evidence supporting the terrorism allegations was materially different and included later analysis and further information. The defendants were not placed in jeopardy for terrorist offences in the earlier proceedings, nor were they facing escalating prosecutions on the same facts. R v Beedie [1998] QB 356 did not apply.

5. Whether material existed which, if analysed, might have justified earlier terrorism charges did not determine double jeopardy. No bad faith, oppressive conduct, or serious investigative incompetence causing a miscarriage of justice had been established. The court also doubted that the prosecution had any duty to delay the forgery proceedings while it pursued unsubstantiated terrorism allegations.

6. Under section 61 of the Criminal Justice Act 2003, the interests-of-justice requirement could permit consideration of a defence issue integral to the terminating ruling and the permitted prosecution appeal. It did not create a general defence cross-appeal. Given the gravity of the charges and the absence of compelling unfairness, resumption of the prosecutions was necessary in the interests of justice.

• Court of Appeal (Criminal Division): Allowed the Crown’s appeals under section 58 of the Criminal Justice Act 2003, reversed the stays, and ordered the proceedings resumed.
• Woolwich Crown Court (Mackay J): On 21 February 2007, stayed the terrorism proceedings against IK, AB and KA on double-jeopardy grounds.