Al Rabbat v Westminster Magistrates' Court

Customary international law does not automatically create criminal offences under the law of England and Wales. A new criminal offence may be created only by Parliament. The courts cannot fill an enforcement gap in international law by assimilating an offence into domestic law, particularly where doing so would engage questions of foreign affairs and the deployment of armed forces.

A Divisional Court determining permission for judicial review must assess the claim’s prospects of success, even where it raises an important point of general public importance. Permission should be refused where there is no realistic prospect that the Supreme Court would depart from binding authority. International developments, academic criticism and practical difficulties do not justify departure without a compelling reason.

The claimant sought permission to judicially review District Judge Snow’s refusal on 24 November 2016 to issue a summons for a private prosecution alleging that the interested parties had committed the crime of aggression by participating in the 2003 invasion of Iraq.

The claimant accepted that the Divisional Court was bound by the House of Lords’ decision in R v Jones (Margaret) [2007] 1 AC 136, which held that aggression was not a domestic criminal offence, but argued that the Supreme Court should be given an opportunity to reconsider it. The central issues were whether there was any prospect of departure from Jones and whether permission should nevertheless be granted so that the Supreme Court could decide that question.

1. Application refused. The court refused permission to bring judicial review proceedings. It held that there was no prospect of the Supreme Court departing from R v Jones (Margaret) [2007] 1 AC 136.
2. The court accepted that aggression was a crime under international law, but held that the crime had not been incorporated or assimilated into the domestic criminal law of England and Wales. A statute was required. The reasoning in Jones was binding and unassailable.
3. The principle in R v Knuller [1973] AC 435 that a new criminal offence could be created only by Act of Parliament, together with the constitutional and foreign-affairs considerations identified in Jones, remained decisive. Parliament had legislated through the International Criminal Court Act 2001 but had deliberately omitted aggression from the offences created by that Act.
4. The Practice Statement of 26 July 1966 recognised a power to depart from precedent, but the certainty of the criminal law required particular caution. Unlike R v G [2004] 1 AC 1034, there was no compelling reason to depart from Jones. Academic criticism, the practical difficulty of international prosecution, and subsequent developments did not alter its basis. The discussion of R (Keyu) v Foreign Secretary [2016] AC 1355, Horton v Sadler [2007] 1 AC 307 and Knauer v Ministry of Justice [2016] AC 908 did not justify a different conclusion.
5. The requirement for permission obliged the Divisional Court to assess the prospects of success. It was not required to send an hopeless claim to the Supreme Court merely because the issue was of substantial public importance.

The claimant sought permission for judicial review of the refusal by District Judge Snow at Westminster Magistrates’ Court on 24 November 2016 to issue a summons for a private prosecution. The Administrative Court refused permission.