Belhaj & Anor v Director of Public Prosecutions (DPP)

For section 6 of the Justice and Security Act 2013, “criminal cause or matter” may bear a meaning shaped by statutory context. Authorities concerning appellate jurisdiction do not determine its meaning in the different context of closed material proceedings. Judicial review of a prosecutorial decision is not itself an appeal in criminal proceedings. It may therefore fall within “relevant civil proceedings”, even though the decision concerns possible future criminal proceedings. The court must focus on the function it is required to perform and the purpose of the statutory scheme. A distinction between challenges to decisions to prosecute and decisions not to prosecute is unsustainable.

The claimants sought judicial review of decisions by the Crown Prosecution Service not to prosecute alleged misconduct in public office connected with their alleged rendition from Thailand to Libya. The Secretary of State applied under section 6 of the Justice and Security Act 2013 for a declaration permitting closed material applications. The claimants argued that the proceedings were proceedings in a “criminal cause or matter” and therefore excluded from “relevant civil proceedings”.

The jurisdiction issue was determined before the merits and without reliance on closed evidence. The central question was whether the statutory phrase excluded this challenge because it concerned a prosecutorial decision and possible future criminal proceedings.

1. Jurisdiction. The court ruled that it had jurisdiction to receive an application for a declaration under section 6 of the Justice and Security Act 2013. Mr Justice Popplewell agreed.
2. The historical authorities on “criminal cause or matter” arose principally in the context of allocating criminal and civil appellate jurisdiction. They give no single clear and consistent interpretation, and the statutory context of section 6 is materially different. The principle in Barras v Aberdeen Steam Trawling and Fishing Company Ltd did not require the same meaning to be adopted.
3. Section 6 addresses proceedings which may otherwise be incapable of fair and effective determination because relevant national-security material cannot be disclosed. The core function of the court was to review the lawfulness of prosecutorial decisions. That function was distinct from determining criminal liability or conducting an appeal in criminal proceedings.
4. The fact that the decisions under review concerned possible future criminal proceedings did not make the judicial review itself a criminal cause or matter for section 6. A judicial review of a decision not to prosecute could require closed material proceedings, and the same jurisdictional answer must apply whether the prosecuting authority decided to prosecute or not to prosecute.
5. The claimants’ application was therefore rejected on jurisdiction, and the court held that the section 6 application could be received.