Belhaj & Anor v Director of Public Prosecutions & Ors

The claim concerned whether legal professional privilege (LPP) waived by H M Government for the limited purpose of a Victim’s Right to Review (VRR) was implicitly waived for subsequent judicial review proceedings. The court held that limited waivers can be effective and that waiver may be restricted to specified purposes; the particular waiver in this case remained confined to the review/prosecution context and did not extend by implication to judicial review. The court distinguished the decision in Scottish Lion and concluded that the processes of prosecutorial decision, internal review and subsequent judicial review were discrete rather than a single composite process warranting inferred waiver. The court also reaffirmed that it has jurisdiction under section 11(4)(a) of the Justice and Security Act 2013 to hold a closed hearing in relation to an application for a declaration under section 6 of that Act, and emphasised the continuing importance of the duty of candour where privileged advice may have been given on an inadequate or misleading basis.

This case arises from a claim that the Director of Public Prosecutions erred in deciding not to prosecute those alleged to be involved in the unlawful rendition of the claimants to Libya. Privileged material from H M Government was disclosed to the Metropolitan Police and to the Crown Prosecution Service subject to a written, limited waiver which stated that the material was provided only to assist the investigation and did not waive privilege more generally.

Nature of the application: An application for a declaration under section 6 of the Justice and Security Act 2013 challenging the effect of the asserted limited waiver and seeking clarification of whether that waiver extended to subsequent judicial review proceedings.

Issues framed by the court:

• Whether the limited waiver operated so as to waive privilege for the purposes of subsequent judicial review (implied or inferred waiver).
• Whether the court had jurisdiction under section 11(4)(a) of the 2013 Act to hold a closed hearing in relation to the declaration application.
• The relevance of established authorities on waiver and the scope of the duty of candour where privileged material may have influenced prosecutorial decision-making.

Parties and submissions: The claimants argued that once privilege was waived for review by the CPS/DPP, it must be taken to be waived for judicial review because the review and judicial supervision formed a single process; they relied substantially on Scottish Lion. The Secretary of State and other respondents maintained that the waiver was expressed and objectively limited to the specified purpose and that established authorities support limited waivers. They warned of serious public interest consequences if limited waivers were not upheld.

Court’s reasoning and conclusion: The court analysed authorities recognising that waiver can be limited and that waiver is judged objectively. It concluded that Scottish Lion represented a near outer limit of the doctrine of inferred waiver but was distinguishable because that case involved stages that formed an inseparable single process. In the present case, prosecutorial decision-making, the internal review and subsequent judicial review are distinct processes and there was no necessary nexus to justify inferred extension of the waiver. The court therefore held that the expressed limited waiver was effective and that privilege continued to inhere. The court confirmed its jurisdiction under section 11(4)(a) of the 2013 Act to hold a closed hearing in relation to a section 6 declaration and reiterated the importance of the duty of candour, requiring the Government to correct any material misapprehension where privileged advice was founded on inadequate or misleading instructions.

The court indicated that issues of under‑ and over‑disclosure in closed material were addressed in separate open and closed judgments and that nothing in closed material altered the conclusions on waiver.

The court determined the application for a declaration under section 6 of the Justice and Security Act 2013 on the discrete issue of waiver. It held that the written, limited waiver given by H M Government was effective for the specified purposes and that no further waiver could be implied or inferred to cover subsequent judicial review. The court also held it had jurisdiction under section 11(4)(a) of the 2013 Act to hold a closed hearing in relation to the declaration application. The rationale was that the processes of advice to the DPP, prosecutorial decision-making and judicial review are discrete rather than components of a single composite process, and that extending waiver by inference in such circumstances would have profound adverse consequences for public administration.