Belhaj and another v Director of Public Prosecutions and another

Judicial review of a decision whether to prosecute is capable of being a proceeding “in a criminal cause or matter” within section 6(11) of the Justice and Security Act 2013. The classification depends on the proceeding’s subject matter, rather than its public law form.

A challenge to a decision not to prosecute, brought with the object of securing a prosecution, forms an integral part of the criminal process. It is therefore excluded from the statutory closed material procedure. The statutory phrase bears its ordinary and natural meaning. Neither the principle of legality nor the purpose of the 2013 Act supports a presumption for or against that meaning.

The Director of Public Prosecutions decided that there was insufficient evidence to prosecute a former intelligence officer for alleged involvement in the appellants’ abduction, rendition and mistreatment. Much of the material considered by the prosecuting authorities was classified. The appellants sought judicial review, alleging among other things that the decision was inconsistent with the available evidence.

The Secretary of State applied for a declaration under section 6 of the Justice and Security Act 2013, which would permit a closed material application. The Divisional Court, in [2017] EWHC 3056 (Admin), held that the judicial review was not a proceeding “in a criminal cause or matter”. The central issue was whether section 6(11) consequently excluded the court’s jurisdiction to make the declaration.

1. By a majority, the appeal was allowed. Lord Sumption, with whom Lady Hale agreed, held that the judicial review was a proceeding “in a criminal cause or matter” for section 6 of the Justice and Security Act 2013. Lord Mance reached the same conclusion for substantially the same reasons. The court therefore lacked jurisdiction to entertain an application for a closed material declaration.

2. The phrase takes its character from the criminal subject matter which supplies the object of the review. Judicial review is not inherently civil. The High Court’s supervisory jurisdiction over decisions made in relation to actual or prospective criminal proceedings is an integral part of the criminal justice system. A challenge intended to require a prosecutor to commence a prosecution is as much a criminal matter as the decision not to prosecute.

3. The established appeal authorities reflected the natural meaning of the words. A “cause” denotes an actual or prospective proceeding, while “matter” extends to the wider legal subject matter arising in another proceeding. The inclusion of “matter” prevented classification from turning merely on the procedural form used. An application truly collateral to the criminal jurisdiction may fall outside the phrase.

4. The principle of legality did not determine the construction. Parliament had expressly authorised a carefully regulated incursion into open and natural justice. The statutory conditions and safeguards had to be construed according to ordinary principles, without a presumption either favouring or restricting closed material procedure.

5. The purpose and context of the 2013 Act did not justify a narrower construction. Criminal proceedings were excluded because the executive can protect sensitive material by withdrawing or discontinuing a prosecution, whereas a government defendant cannot withdraw from civil litigation in the same way. That rationale was compatible with treating judicial review integral to a prosecutorial decision as criminal.

6. Lord Lloyd-Jones, with whom Lord Wilson agreed, dissented. He considered the judicial review to be a public law examination of the legality of a decision maker’s conduct, at least one remove from proceedings determining criminal guilt. On that construction, closed material procedure would have remained available.

1. United Kingdom Supreme Court: By a majority, allowed the appeal and declared that the judicial review proceedings were proceedings in a criminal cause or matter for section 6 of the Justice and Security Act 2013.
2. High Court, Divisional Court: In [2017] EWHC 3056 (Admin), held that the proceedings were not proceedings in a criminal cause or matter and that jurisdiction existed to entertain an application for a section 6 declaration.