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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Belhaj & Anor v Director of Public Prosecutions (DPP)  EWHC 3056 (Admin) (01 December 2017)
Cite as:  WLR(D) 808,  EWHC 3056 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE POPPLEWELL
| (1) ABDEL HAKIM BELHAJ
(2) FATIMA BOUDCHAR
- and –
|DIRECTOR OF PUBLIC PROSECUTIONS
- and -
|(1) SIR MARK ALLEN CMG
(2) COMMISSIONER OF POLICE OF THE METROPOLIS
(3) THE SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
John McGuinness QC and Tom Little (instructed by Government Legal Department) for the Defendant
Victoria Ailes (instructed by BCL Burton Copeland) for the 1st Interested Party
The 2nd Interested Party did not attend and was not represented
James Eadie QC and Ben Watson (instructed by the Government Legal Department) for the 3rd Interested Party
Jeremy Johnson QC and Zubair Ahmad (instructed by the Special Advocates' Support Office) appeared as Special Advocates
Hearing dates: 2nd and 3rd November 2017
Crown Copyright ©
Lord Justice Irwin :
"Following careful review of the evidence and considering the comprehensive advice provided by counsel, I have decided that there is insufficient evidence to prosecute the suspect for any criminal offences linked to these allegations. I will try, within the parameters permitted by the classification of the evidence, to explain the reasons for my decision as clearly as I am can (sic)."
"Following a careful and fully independent consideration of the evidence, I have concluded that the decision not to prosecute this case was in fact correct. In other words, I agree with the original decision and this means that the suspect will not be charged.
In this case, for the same reasons that were given in the detailed statement previously issued, I have concluded that there is insufficient evidence."
"6. Declaration permitting closed material applications in proceedings
(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.
(2) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.
(3) The court may make such a declaration if it considers that the following two conditions are met.
(4) The first condition is that—
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings).
(11) In this section—
"closed material application" means an application of the kind mentioned in section 8(1)(a), "relevant civil proceedings" means any proceedings (other than proceedings in a criminal cause or matter) before—
(a) the High Court, (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court, "sensitive material" means material the disclosure of which would be damaging to the interests of national security."
Historic use of the term "criminal cause or matter"
"One of which, under the name of "Her Majesty's High Court of Justice" shall have and exercise original jurisdiction, with such appellate jurisdiction from inferior courts as is hereinafter mentioned, and the other of which, under the name of "Her Majesty's Court of Appeal" shall have and exercise appellate jurisdiction, with such original jurisdiction as hereinafter mentioned…"
"47. Provision for Crown cases reserved.
The jurisdiction and authorities in relation to questions of law arising in criminal trials which are now vested in the Justices of either Bench and the Barons of the Exchequer by the Act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter seventy-eight, intituled "An Act for the further amendment of "the administration of the Criminal Law," or any Act amending the same, shall and may be exercised after the commencement of this Act by the Judges of the High Court of Justice, or five of them at the least, of whom the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, or one of such chiefs at least, shall be part. The determination of any such question by the Judges of the said High Court in manner aforesaid shall be final and without appeal; and no appeal shall lie from any judgment of the said High Court in any criminal cause or matter [emphasis added], save for some error of law apparent upon the record, as to which no question shall have been reserved for the consideration of the said Judges..."
"The practice and procedure in all criminal causes and matters whatsoever in the High Court of Justice and in the Court of Appeal respectively, including the practice and procedure with respect to Crown Cases Reserved, shall be the same as the practice and procedure in similar causes and matters before the passing of this Act."
"100. Interpretation of terms.
In the construction of this Act, unless there is anything in the subject or context repugnant thereto, the several words herein-after mentioned shall have, or include, the meanings following; (that is to say,)
"Cause" shall include any action, suit, or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the Crown.
"Action" shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by Rules of Court; and shall not include a criminal proceeding by the Crown.
"Matter" shall include every proceeding in the Court not in a cause."
"[Section 47 of the 1873 Act states] No appeal shall lie from any judgment of the said High Court in any criminal cause or matter…. Now is this a procedure in a criminal cause or matter? I think it cannot be doubted that a criminal information is a criminal cause or matter; it only differs in mere form from an indictment; … certain consequences are attached to the judgment for the Defendant in a criminal information by a private prosecutor for libel, viz. that the Defendant, if judgment is given for him, is entitled to his costs from the prosecutor, and this order of the court to tax is a matter of course after judgment, and it is clearly part of the procedure in a criminal matter, which is without appeal."
"The result of all the decided cases is to shew that the words "criminal cause or matter" in s. 47 should receive the widest possible interpretation. The intention was that no appeal should lie in any "criminal matter" in the widest sense of the term, this Court being constituted for the hearing of appeals in civil causes and matters. The meaning of the words "criminal cause or matter" was considered in various cases which have been cited, but the case which helps one most to the true construction is, I think, Reg. v. Fletcher (1), following Reg. v. Steel. In Reg. v. Fletcher (1) the appeal was from a decision of the Queen's Bench Division discharging a rule for a certiorari to bring up for the purpose of quashing a summary conviction by justices. The Court of Appeal held that the appeal was from a judgment of the High Court in a criminal matter within the last clause of s. 47. Mellish, L.J., said: "In Reg. v. Steel (2) we held that clause was not confined, as was contended, to the High Court when sitting as the Court to hear points reserved in criminal cases, but extended to all criminal cases in the High Court, and therefore to criminal cases in the Queen's Bench Division. The question here is somewhat wider - whether the exemption from appeal extends to a proceeding in the Queen's Bench Division, which might be said to be not strictly a criminal proceeding in that court, but was a proceeding taken in that court for the purpose of quashing a conviction before justices which was clearly a criminal proceeding. Was that proceeding in the Queen's Bench Division a proceeding in a criminal matter? Now the intention of the legislature appears to me clearly to have been to leave the procedure in criminal cases substantially unaltered."
In the present case, I think I must try to express my meaning in other words. I think that the clause of s. 47 in question applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject-matter of which is criminal, at whatever stage of the proceedings the question arises. Applying that proposition here, Was the decision of the Queen's Bench Division, refusing the application for a writ of habeas corpus, a decision by way of judicial determination of a question raised in or with regard to the proceedings before Sir James Ingham? I am clearly of opinion that it was, and I think it is impossible to say that what took place before him was not a proceeding the subject-matter of which was criminal. If the proceeding before the magistrate was a proceeding the subject-matter of which was criminal, then the application in the Queen's Bench Division for the issue of a writ of habeas corpus, which if issued would enable the applicant to escape from the consequences of the proceeding before the magistrate, was a proceeding the subject-matter of which was criminal. It follows, therefore, that this Court has no jurisdiction to hear the appeal."
"Now, we have in this case the provision contained in an Act of Parliament that the Board of Trade, or those to whom they delegate this power, shall "take proceedings" against the seller before a Court of summary jurisdiction if in their judgment the circumstances so require, and the sub-section goes on to provide that if in "such proceedings" it is found that the complaint is established certain consequences – namely, alternatively a fine or imprisonment, shall follow. But the proceedings in respect of which it is provided that there shall be either a fine or imprisonment, if there be a conviction, are the proceedings which are taken by the Board, or its representative, in pursuance of the peremptory terms which are used in the sub-section; and I am unable to see how it can be even contended that these proceedings are not proceedings within the meaning of the language used by Lord Esher and not impeached by counsel for the appellants in his argument.
It has long been recognised that the words under consideration are to be widely, and not restrictively, construed. I find myself in agreement with the whole of Lord Esher's judgment.
Reference was made in the argument and in the judgments below to a later decision, PULBROOK, Ex parte, which indeed, if the matter were in any way doubtful, would, if accepted in this House, throw a great light upon the only question which requires decision. It was there held that an appeal does not lie from an order made by a Judge at Chambers under section 8 of the Law of Libel (amendment) Act, 1888 (51 & 52 Vict. C. 64), allowing a criminal prosecution to be commenced against the proprietor, publisher, editor, or person responsible for the publication of a newspaper, for libel published therein. In such a case the order which is made by a Judge at Chambers is not necessarily followed by any proceedings at all; the person who has so obtained the order of the Judge may, or he may not, initiate a prosecution upon the strength of such order. It was, nevertheless held, and in my judgment rightly held, that there is no appeal from such an order because it is given in a criminal matter. This decision was reached, although the Act itself, by directing that no prosecution shall be commenced without the order of a Judge plainly recognises that the actual commencement of the prosecution is a later and a distinguishable stage in the matter.
I am of the opinion, for these reasons, that this was an order made in a criminal cause or matter, and that no appeal from it can be heard. The appeal therefore fails, and I move your Lordships accordingly." (pages 1067-1068)
"I think that when the local Profiteering Act committee resolved in the terms in which they did resolve, not only that there should be a refund of one half-penny, but that there should be a direction that proceedings be taken, they had already satisfied all conditions precedent, because it had appeared to them that the circumstances required them to take the proceedings which thereupon they proceeded to take; and the passing of that resolution was in my opinion not the mere satisfaction of a condition but was itself the first step in taking proceedings against the seller, although no doubt as a matter of fact subsequent steps would be taken personally by their clerk prosecuting on their behalf, and satisfying the words of the Act that they should take proceedings, and formally instituting what is called a prosecution before the Justices. It seems to me that the commencement of those proceedings by passing the resolution was itself the commencement of a criminal matter…" (page 1068)
"It is desirable to deal first with the preliminary objection; and for myself I entertain no doubt that the Court of Appeal had and this House has jurisdiction to entertain the appeal. Sect. 47 of the English Judicature Act, which is similar to s. 50 of the Irish Act in prohibiting an appeal from any judgment of the High Court "in any criminal cause or matter," has been considered in a number of cases, including Ex parte Woodhall (3) and a recent case in this House (Provincial Cinematograph Theatres v. Newcastle-upon-Tyne Profiteering Committee (4)); and it has been held that the words "judgment of the High Court in any criminal cause or matter" should be construed in a wide sense and as including any judicial decision with regard to proceedings the subject matter of which is criminal. But, however wide be the meaning to be attached to the words in question, they cannot, I think, apply to the decision of Powell J. in this case. No doubt that decision was given in a cause or matter, such matter consisting of the application to the learned judge for a writ of prohibition; but in order that a matter may be a criminal cause or matter it must, I think, fulfil two conditions which are connoted by and implied in the word "criminal." It must involve the consideration of some charge of crime, that is to say, of an offence against the public law (Imperial Dictionary, tit. "Crime" and "Criminal"); and that charge must have been preferred or be about to be preferred before some Court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence. If these conditions are fulfilled, the matter may be criminal, even though it is held that no crime has been committed, or that the tribunal has no jurisdiction to deal with it (see Reg. v. Fletcher (1), per Amphlett J.A., and Rex v. Garrett (2), per Bankes L.J.), but there must be at least a charge of crime (in the wide sense of the word) and a claim to criminal jurisdiction."
"The whole question is whether the appeal from the Divisional Court to the Court of Appeal was an appeal from a "judgment of the High Court in any criminal cause or matter" within the meaning of Section 31 of the Supreme Court of Judicature (Consolidation ) Act 1925. By Section 225 of that Act "matter" includes every proceeding in Court, not in a cause. The Court of Appeal thought that the decision of the Divisional Court was in a "criminal cause or matter" and consequently held that the appeal was incompetent. I agree with that view … and it follows that the appeal to this House must fail." (page 152)
The Claimants rely upon this decision as supporting the breadth of the relevant phrase.
"It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal [emphasis added]. This is the true effect of the "two conditions" formulated by Viscount Cave in In re Clifford and O'Sullivan. Applying these tests, I cannot doubt that the appellant's application for the writ and the decision of the Divisional Court refusing it were "in a criminal cause or matter". He has been apprehended by the police on suspicion of being a deserter or absentee without leave from the Dutch forces and is being brought before a court of summary jurisdiction on this charges by a procedure analogous to Section 154 of the Army Act so that the court, "if satisfied" may deal with him as provided in sub-section 4 of that section … The proceedings in the present case are for the direct purpose of handing the appellant over so that he may be dealt with on the charges."
"The words "cause or matter" are, in my opinion, apt to include any form of proceeding. The word "matter" does not refer to the subject-matter of the proceeding, but to the proceeding itself. It is introduced to exclude any limited definition of the word "cause." In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act and the order, and to deliver the appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. … The few instances which I cite later are chosen merely to illustrate the wide meaning given to the words "criminal cause or matter" used in the section, or in the similar provision of the Supreme Court of Judicature Act 1873. It is not easy, or, perhaps, desirable, to attempt a precise or comprehensive definition of these words [emphasis added]." (page 160)
Lord Wright went on, at page 162:
"The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a "criminal cause or matter." The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal."
"The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge …" (page 164)
"Apply that test to an application to estreat a recognizance. The outcome is not a "trial" of the surety. There is no "possible punishment" of the surety of an "offence". A recognizance is in the nature of a bond. A failure to fulfil it gives rise to a civil debt. It is different from the ordinary kind of civil debt because the enforcement is different. It is enforceable like a fine. It may be enforced by a warrant of distress, or by committing the defaulter to prison: see Sections 64 and 96 of the Magistrates' Court Act 1952. But that method of enforcement does not alter the nature of the debt. It is simply a civil debt upon a bond and as such it is not a criminal cause or matter." (pages 15G to 16A)
"151. Interpretation of this Act, and rules of construction for other Acts and documents.
(1) In this Act, unless the context otherwise requires—
"action" means any civil proceedings commenced by writ or in any other manner prescribed by rules of court;
"cause" means any action or any criminal proceedings;
"matter" means any proceedings in court not in a cause;"
"So Lord Wright was saying that you look not to the particular order under appeal but to the underlying proceedings in which that order was made, and those are the proceedings which have to be characterised as either criminal or non-criminal. Viscount Simon LC said, at page 156:
"It is the nature and character of the proceedings in which habeas corpus is sought which provide the test. If the matter is one that the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal. This is the true effect of the "two conditions" formulated by Viscount Cave in In Re Clifford and O'Sullivan  2 AC 570/580"
So Lord Simon is saying precisely the same thing. Habeas corpus as such cannot be a criminal cause or matter; it is either neutral or civil. What Lord Simon is saying is that you look to see what is the nature or character of the proceedings in which habeas corpus is sought, and that provides the test.
Applying Amand's case, it is quite clear that these witness summonses were issued or varied in criminal causes or matters." (page 976A/D)
"Of Green's case it can be said that the proceedings in relation to Mrs. Green were collateral to the criminal cause or matter. In this case the summonses were both issued by the court which was itself charged with the criminal cause or matter and in that matter. If there is to be a distinction, that must be it, and, in my judgment, it is a valid distinction assuming that Green's case validly interprets Amand's case." (page 976G-977A)
At page 977E/F the Master of the Rolls raised the difficulty caused by Amand's case and Green's case and invited the House of Lords to consider the matter "if a convenient opportunity occurred" (page 977E/F). The Court of Appeal took a similar line in Carr v Atkins  1 QB 963.
"17. My Lords, like Lord Bridge of Harwich in In re Smalley  AC 622, 634, I express no view upon the actual decision in R v Southampton Justices, Ex parte Green. But I think, with respect to Lord Denning, that Viscount Simon intended his second sentence to be illustrative of a case in which the "nature and character of the proceedings" were criminal and not an exhaustive definition of such proceedings. If they were, it would be difficult to explain why an order for the taxation of the defendant's costs in a failed prosecution for criminal libel was held to be "in a criminal cause or matter" in R v Steel, 2 QBD 37. Indeed, I would doubt the wisdom of trying to formulate any definition of "criminal cause or matter" to supplement the undefined expression used by Parliament."
"19. My Lords, it may be right, and possibly in most cases would be right, to regard orders made by way of enforcement of orders made or to be made in criminal proceedings as part and parcel of those proceedings. This was certainly the case in R v Steel, 2 QBD 37. But I would not accept what I regard as the extreme proposition of Mr Alun Jones that the nature of the proceedings in which the original order was made will necessarily determine whether the machinery of enforcement through the courts is a criminal cause or matter. Modern legislation, of which Part VI of the 1988 Act is a good example, confers powers upon criminal courts to make orders which may affect rights of property, create civil debts or disqualify people from pursuing occupations or holding office. Such orders may affect the property or obligations not only of the person against whom they are made but of third parties as well. Thus the consequences of an order in criminal proceedings may be a claim or dispute which is essentially civil in character. There is no reason why the nature of the order which gave rise to the claim or dispute should necessarily determine the nature of the proceedings in which the claim is enforced or the dispute determined."
"38. This does not suffice to make the English proceedings criminal nor does it make the orders made in the English proceedings orders made in any criminal cause or matter. The restraint orders were not made in the US criminal proceedings: they were made in the English proceedings. Some cases may present a problem as to where the line is to be drawn. The present case is not such a case. The highest that it can be put is that the proceedings in which these orders were made, the English proceedings, were civil proceedings the commencement of which was indirectly consequent upon orders made in the US criminal proceedings against Mr Barnette."
"10. How then do these authorities assist in the taxonomy of the present case? First, it is important to keep in mind that the words used in section 18 of the 1981 Act are "criminal cause or matter" and not, say, "criminal proceedings". The words "or matter" denote a wider ambit. Secondly, although the administering of the caution put an end to the risk of prosecution and conviction in the Magistrates Court, I find it impossible to escape the conclusion that it was simply another way of disposing of a "criminal matter". On the face of it, and as found by Elias J, Mr Aru was accepting his criminality and agreeing to be cautioned as an alternative to possible prosecution and conviction. Thirdly, it is necessary to have regard to the inherent nature and consequences of a caution. As Schiemann LJ said in R v Commissioner of Police of the Metropolis ex parte Thompson 1997] 1 WLR 1519 (at page 1520):
"It is a method of disposal of criminal cases outside court which is more severe in possible consequences than a warning but usually less severe in its outcome than a successful prosecution. A formal caution is not something to be regarded lightly. Records are kept of the administering of cautions. The Home Secretary has power to direct over what period of time records should be retained... We understand... that in practice a record of caution will be kept for a minimum of three years. Such a caution, while carrying no immediate disagreeable consequences for the recipient, has potential adverse consequences for him should he be accused of offending on a future occasion. He is more likely to be prosecuted for that offence and he will not be able to claim a good character before the trial court. If convicted, the existence of a prior formal caution may affect his sentence. Formal cautions are usually cited after any conviction of a juvenile. In practice they are rarely cited in cases of adult offenders but may be referred to if they are relevant to the crime under consideration."
The question of the relevance of extant cautions to the issue of good character in the context of a subsequent criminal trial was further considered by the Court of Appeal Criminal Division: see R v Martin (David)  2 Crim App R 42. This is to be contrasted with proceedings such as those relating to an application for an anti-social behaviour order which are civil because no criminal offence need be established, no conviction or condemnation as guilty of an offence is implied, no penalty ensues (unless and until there is a subsequent breach) and the order does not go on the person's criminal record. For these reasons such orders were classified by the House of Lords in R (McCann) v Crown Court at Manchester  1 AC 787 as not relating to a criminal cause or matter. They are civil, their purpose is preventive and they are more akin to injunctions.
11. All this leads me to the conclusion that a caution falls on the other side of the line, and that the judgment and order of Elias J were undoubtedly made in a criminal cause or matter."
"35. As I think will be clear from the above discussion of the relevant cases on section 18(1)(a) and its statutory predecessor, the state of the law on the issue we have to determine is less than satisfactory. Given that, in the absence of authority, it appears to me that either party's case would be maintainable, I consider that we should accept the case which can best be reconciled with the authorities taken as a whole, or, perhaps to put the same point another way, the case which minimises future confusion and uncertainty.
36. In my judgment, that approach justifies the conclusion that, in relation to GNML's projected appeal, this Court does have jurisdiction to hear it. GNML's application was wholly collateral to the extradition proceedings themselves, as is highlighted by the fact that the original application was made by someone who was not a party to those proceedings, and the order made by the District Judge refusing GNML's application did not involve the court invoking its criminal jurisdiction or making an order which would have any bearing on the extradition proceedings.
37. I accept that this conclusion may be said to fall foul of the wide principle which may appear to have been laid down, perhaps most clearly by Lord Wright, in Amand  AC 147. However, my conclusion is consistent with the conclusion reached in Green  QB 11, which, despite two opportunities, the House of Lords has not overruled or disapproved. Indeed, some of the observations of Lord Bridge in Smalley  AC 622, and, perhaps more arguably, some of the observations of Lord Hoffmann in Montgomery  1 WLR 196, appear to suggest that the reasoning in Amand  AC 147 does not in fact go as wide as it might appear at first sight to go.
38. The reasoning in Ex p Green  QB 11 is not to be relied on: it is demonstrably flawed. In Montgomery  1 WLR 196 Lord Hoffmann obviously was unconvinced by the reasoning, and in Carr v Atkins  QB 963 Sir John Donaldson held that the reasoning was no longer binding. However, my conclusion in this case appears to be consistent with Sir John Donaldson MR's suggested justification for the conclusion in Ex p Green  QB 11, and with his tentative guidance, given in the most recent case on the issue in this court, Carr v Atkins. I also think that the conclusion lies comfortably with Lord Hoffmann's observations in the Montgomery case  1 WLR 196.
39. Furthermore, it does not seem to me that the conclusion that the Court of Appeal has jurisdiction in this case for the reason which I have given would mean that any other decision of this court which had gone the other way (i.e. Day v Grant (Note)  1 QB 972 and Carr v Atkins  QB 963) would be called into question.
40. I am far from saying that, in the absence of any authority, I would have reached the same conclusion, or that I would be confident that, if they were called on to clarify the law in this area, the Supreme Court would reach the same conclusion. As mentioned above, the competing arguments, at least to the extent that I have considered them, appear finely balanced. [emphasis added]
43. In my opinion, any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court, but I believe that, consistently with the spirit of the approach in The Great Peace Shipping case  QB 679, the best way of applying the "rather tangled" jurisprudence developed over the past thirty-five years, and ensuring maximum coherence (or maybe it is more realistic to say, minimum incoherence) is to hold that we have jurisdiction to hear the appeal in this case for the reasons given in paras 36-9 above."
"102. During the course of the hearing we asked whether the decision of the Court of Appeal,  1 WLR 3253, holding that it had jurisdiction to entertain an appeal from the decision of the Divisional Court in this case has any impact on the powers of the Criminal Procedure Rule Committee.
103. Sections 68 and 69 of the Courts Act 2003 provide:
"68. In this Part "criminal court" means— (a) the criminal division of the Court of Appeal; (b) when dealing with any criminal cause or matter— (i) the Crown Court; (ii) a magistrates' court.
69(1) There are to be rules of court (to be called "Criminal Procedure Rules") governing the practice and procedure to be followed in the criminal courts.
(2) Criminal Procedure Rules are to be made by a committee known as the Criminal Procedure Rule Committee.
(3) The power to make Criminal Procedure Rules includes power to make different provision for different cases or different areas, including different provision— (a) for a specified court or description of courts, or (b) for specified descriptions of proceedings or a specified jurisdiction.
(4) Any power to make … Criminal Procedure Rules is to be exercised with a view to securing that— (a) the criminal justice system is accessible, fair and efficient, and (b) the rules are both simple and simply expressed."
104. As sections 68 and 69 make clear, the rule making power of the Committee is limited to making rules in relation to the Crown Court and the magistrates' court when they are dealing with "any criminal cause or matter".
105. The Court of Appeal held that it had jurisdiction to entertain an appeal notwithstanding section 18(1) of the Senior Courts Act 1981 which provides that no appeal shall lie to the Court of Appeal in relation to the types of case therein specified, which include "(a) except as provided by the Administration of Justice Act 1960 , from any judgment of the High Court in any criminal cause or matter" (emphasis added). The Court held that the Guardian's application was "wholly collateral to the extradition proceedings".
106. Mr Perry, rightly in my view, said that the words "any criminal cause or matter" must have a different meaning in section 68 of the Courts Act 2003 than they do in section 18(1) of the Senior Courts Act 1981 . To give the words "any criminal cause or matter" in section 68 a narrow meaning would lead to the undesirable result that issues such as those dealt with in Part 5 of the Criminal Procedure Rules (and in other parts of the Rules) would have to be the subject of rule-making by some other body. That cannot have been the intention of Parliament. See also section 66 of the Courts Act 2003, the recently inserted subsection (1A) of section 8 of the Senior Courts Act 1981 (as inserted by paragraph 1(4) of Schedule 2 to the Armed Forces Act 2011) (both of which make provision for the powers of certain judges) and section 16(5) of the Prosecution of Offences Act 1985 ."
"I agree with what is said in para 106 that 'criminal cause or matter' in section 68(b) of the Courts Act 2003 does not necessarily have the same meaning as the identical expression in section 18(1) of the Senior Courts Act 1981 , and that, if the expression in the 1981 Act has the meaning ascribed to it in the earlier decision in this case,  1 WLR 3253, then it has a different meaning in the 2003 Act [emphasis added]. In particular, it would be inappropriate for the expression to be accorded a narrow meaning in the 2003 Act."
"19. The application under section 59 is made in the Crown Court (a matter of significance in the Montgomery case  1 WLR 196). The statute identifies a small number of instances where the application should be made in a civil court. When considering an application under section 59(5)(b) of the 2001 Act, or considering subsections (6) and (7) when an application for return of property is made by a person with a relevant interest under section 59(2) , the Crown Court is concerned no less with a statutory provision in aid of a criminal investigation with a view to criminal prosecution, than is a criminal court faced with an application under sections 8 or 9 of the 1984 Act. The reality is that it provides an alternative mechanism to a fresh application under the 1984 Act (and also the other criminal provisions to which section 59 applies) when something has gone wrong with the original process.
20. In my judgment there is no basis upon which the reasoning of this court in Carr v Atkins  QB 963 can be distinguished. Nothing in the Montgomery case or the Guardian case  1 WLR 3253 calls it into question. I acknowledge that the authorities on the meaning of "criminal cause or matter" have given rise to some uncertainty and, as Lord Neuberger MR recognised in the Guardian case, some incoherence. It does not follow from the proposition that in some cases it is difficult to determine whether given proceedings are a "criminal cause or matter" that the same difficulty arises in all cases. I am satisfied that the underlying proceedings challenged in the Divisional Court in this case were a criminal matter. In the result the Court of Appeal has no jurisdiction to entertain an appeal from its order. The appellants must make their application to the Divisional Court and, if successful, pursue their appeal in the Supreme Court."
Cases where Jurisdiction was not argued
"the jurisdiction issue does not appear to have been considered and was certainly not argued. The fact that a jurisdiction point was not taken in that case is not an answer to the Defendant's submissions."
The Decision under the JSA 2013
"2. On 20 November 2014 I made a declaration pursuant to section 6 of the 2013 Act. When I did so I indicated that I would provide reasons for so doing in writing at a later date. These are my reasons.
3. The Defendant filed a statement of reasons in which she asserted that all the conditions specified in section 6 of the Act for the making of a declaration were met in this case. The Claimant's legal representatives did not dissent. On the basis of the Defendant's statement of reasons there can be no doubt that the two conditions set out in section 6(4) and 6(5) were met. On any view, the Defendant would have been required to disclose sensitive material to the Claimant. Further, I was in no doubt that it was in the interests of the fair and effective administration of justice to make the declaration. So much will be obvious from a reading of the open and closed judgments on the substantive claim. I was also satisfied from the statement of reasons that the requirements of section 6(7) were met.
4. I was empowered to make the declaration sought provided I was "seized of relevant civil proceedings" – see section 6(1) of the Act. Such proceedings are defined as proceedings before the High Court "other than proceedings in a criminal cause or matter" – see section 6(11).
5. The phrase "criminal cause or matter" appears in statutory provisions other than section 6 of the Act. Primarily, it occurs in statutory provisions concerned with appeals. Mr Chawla QC, quite properly, took me through a number of decisions in which the phrase has been considered in that context and/or when the court has found it necessary to consider whether proceedings are criminal or civil in nature. In particular he referred me to R –v- Lambeth Magistrates Court ex parte McComb  1 QB 551, Bonalumi –v- Secretary of State for the Home Department  1 QB 675, Cuoghi –v- Governor of HMP Brixton No 1 1WLR 1346 and B –v- Chief Constable of Avon and Somerset  1 WLR 340.
6. It does not seem to me to be necessary or fruitful to seek to analyse those decisions, or indeed, to seek to reconcile them all if that is possible. I say that since in R (Guardian News and Media Limited) v City of Westminster Magistrates' Court and Another  QB 618 the Court of Appeal concluded that the phrase "criminal cause or matter" need not have one meaning regardless of its statutory context but, rather, might be interpreted differently depending upon its statutory context - see, in particular, paragraphs 101 to 106 in the judgment of Hooper LJ and paragraph 110 in the judgment of Lord Neuberger of Abottsbury MR (as he then was). I must determine whether these proceedings fall to be described as a criminal cause or matter in the context of and set against the policy behind the 2013 Act.
7. In his written and oral submissions Mr Chawla QC argued persuasively that a purposive interpretation of section 6 of the Act compelled the conclusion that this judicial review should not be excluded from its ambit. I agree. It would be most unfortunate if cases of this kind were excluded from the ambit of section 6 of the Act just because they have a connection with criminal proceedings in another jurisdiction. I agree with Mr Chawla's point that in order to decide whether proceedings are civil or criminal in the context of the Act it is necessary to identify the core function to be performed by the court in the proceedings in question. In this case the court will be called upon to determine whether the Defendant lawfully exercised her discretion when she refused the requests made of her on the grounds of national security. The function of this court is a step removed from any proceedings which can properly be categorised as a criminal cause or matter.
8. In my judgment it was proper to make a declaration under section 6 of the Act because all the statutory criteria for the making of such a declaration were met. In my view, too, the Claimant was right not to oppose the making of the declaration." (Al Fawwaz (No 1) paragraphs 2-8)
"…the dilemma which would otherwise arise, i.e. requiring either (a) disclosure of the sensitive material, or (b) a claim for Public Interest Immunity (PII) which if upheld would prevent any consideration of the material, thus rendering the proceedings untriable on their merits: see, among others, CF v Ministry of Defence  EWHC 3171 (QB) at paragraph 25)."
"57. … First, can the Court fairly review the decision without a CMP? In my view, it cannot review the decision since it will not have all the information upon which the decision was taken. By contrast with an ordinary civil action, the Court would be reviewing the lawfulness, not the merits, of the decision. It cannot do that without seeing all the material which statutory duty required, or permitted the SSHD to take into account, save for the particular issue of information obtained by torture. It would be impossible for it to hold that her decision was irrational, or unlawful when it could not know what she had considered.
58. It will not have all the information as a result of the Court itself deciding that the material is too sensitive to be released. The balance will have come down against disclosure. The Court could not try the issue, knowing that there was other relevant material but not knowing what it was, on the false basis that there was nothing else or that the SSHD had simply refused to provide material. It would have to take its decision on the basis that the absence of disclosure of concerns or reasons was justified, after the PII hearings. If the SSHD gives evidence that there were good reasons and a sound relevant basis for her decision, having considered the Claimant's representations, which she could not further disclose, it would be impossible for the Court fairly or reasonably to hold that she was wrong in saying that. The Claimant would have no prospect of persuading the Court to the contrary. It is not so much that the case is untriable; it can be tried. It is simply that the evidence means that the Claimant cannot win. So there is no point in it going to trial. Even if it were alleged that an immaterial factor had positively been taken into account, unless its context and significance could be fully appreciated, the Claimant still could not win.
59. This would be akin to the position in Carnduff v Rock and Chief Constable of West Midlands Police  EWCA Civ 680,  1 WLR 1786. The Court of Appeal held by a majority that a fair trial of the issues between the police and the Claimant, an informer who was seeking to enforce payments he said were due under an agreement he had with the police, would require disclosure, investigation and a court ruling on sensitive police information which should remain confidential in the public interest. The public interest in maintaining that confidentiality clearly outweighed the public interests in having the issue litigated on all relevant evidence. There was no sensible possibility that the claim could be litigated without offence to the public interest and so it was struck out. The minority view was that if such a contract existed, a mechanism for trying the issue should be found. The Claimant's application to the ECtHR was held inadmissible; 18905/02.
60. For the same reasons, there is really no second possibility that the SSHD must lose. The Court cannot require the SSHD either to disclose material harmful to national security in order to prove the lawfulness of her conclusion that the Claimant was not of good character, when the Court itself had decided against ordering disclosure, or to grant naturalisation in breach of her statutory duty, when she was not satisfied that he was of good character."
"58. The 2013 Act is one of those in which Parliament has stipulated that a closed material procedure may be permitted by the court. It represents Parliament's assessment of how, in relevant civil proceedings, the balance is to be struck between the competing interests of open justice and natural justice on the one hand and the protection of national security on the other, coupled with express provision in section 14(2)(c) to secure compliance with article 6. It is certainly an exceptional procedure, and in the nature of things one would expect it to be used only rarely, but the conditions for its use are defined in detail in the statute. In the circumstances there is, in my judgment, no reason to give the statutory provisions a narrow or restrictive construction, save for any reading down that may be required, in accordance with the terms of the statute itself, for compliance with article 6. Subject to that point, the provisions should be given their natural meaning and applied accordingly. Appropriate safeguards against inappropriate or excessive use of a closed material procedure are built into the provisions themselves, starting with the conditions for a section 6 declaration and encompassing the provisions for review and revocation of a declaration and those governing applications for permission not to disclose material in proceedings in relation to which a declaration is in place."
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
Mr Justice Popplewell: