DEFENDING CHRISTIAN ARABS, R (on the application of) v DIRECTOR OF PUBLIC PROSECUTIONS

A statutory requirement that the Director of Public Prosecutions consent before specified criminal proceedings are instituted is not, without more, contrary to victims’ procedural rights or the Convention. Such a requirement may pursue legitimate objectives, including consistency, central control and consideration of public-interest, political or international factors. The Director may apply the Full Code test and may consider state immunity when deciding whether to consent. A policy governing consent applications is not a rigid code where unusual features make another relevant consideration obvious. The reasoning in Pinochet concerning immunity and torture does not establish a general terrorism exception to state immunity.

The claimant sought permission to apply for judicial review of the Director of Public Prosecutions’ refusal to consent to proposed private prosecutions of the Emir of Qatar and a former Qatari Prime Minister. The proposed charges concerned terrorist financing under section 15(3) of the Terrorism Act 2000, including conduct outside the United Kingdom and therefore engaging section 117.

The claimant argued that the consent requirement was incompatible with EU law and Convention rights, that the Director could not take account of the Full Code test or state immunity, and that state immunity did not apply to terrorism offences. The Divisional Court determined whether those grounds were arguable at the permission stage.

1. Permission refused. The claim was not arguable.
2. Article 10 of Directive 2012/29/EU concerns victims being heard and providing evidence during criminal proceedings. It confers no right to initiate criminal proceedings. The claimant, a company limited by guarantee, was in any event not a natural-person victim within article 2. The decisions in Gambino and Katz did not establish a contrary proposition (para [10]).
3. Articles 2 and 6 of the Convention confer no individual right to commence criminal proceedings. Article 2 may require investigation by public authorities, with criminal proceedings being one possible means of discharge. Article 6, so far as criminal proceedings are concerned, protects defendants. The civil access-to-court principle was therefore not engaged. Even on the claimant’s wider assumption, section 117 pursued legitimate objectives and was proportionate. Its exercise remained subject to public-law principles and judicial review (paras [11]–[15]).
4. Section 117 of the Terrorism Act 2000 confers a power at large, subject to proper purpose and Wednesbury reasonableness. The Director was entitled to adopt a policy applying the Full Code test. The decision in Gujra confirmed the lawfulness of applying that test when deciding whether to take over a private prosecution, and the same approach was plainly lawful under section 117 (paras [16]–[18]).
5. The Director was entitled to consider state immunity. Immunity could be treated as a possible defence within the evidential stage or as relevant to the public-interest stage. Alternatively, even if immunity concerned jurisdiction rather than the Full Code test, the Director was entitled to consider it because unusual features may require consideration of matters not expressly identified in a general policy (paras [19]–[22]).
6. The claimant’s proposed terrorism exception to state immunity was unarguable. Pinochet was specific to torture, involving both the jus cogens character of the prohibition and the definition of torture in article 1 of the Convention Against Torture. There was no equivalent peremptory international-law crime of terrorism or comparable treaty definition. The analogy therefore failed (paras [23]–[25]).

The application for permission to apply for judicial review was refused.