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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 >> Kebilene (aka Kebeline) & Ors, R (on the application of) v Director Of Public Prosecutions  EWHC Admin 277 (30 March 1999)
Cite as: (1999) 11 Admin LR 785,  EWHC Admin 277,  Crim LR 994,  3 WLR 175
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LORD CHIEF JUSTICE: It is, as we conclude, appropriate to discharge the
restriction on the reporting of these proceedings which was imposed by Mr
Justice Turner. There is no opposition, I think, to that course. The press
will of course be aware that the ordinary law of contempt will remain in force
and it would not be right to assume that there will not be a trial. All we are
doing is discharging the restriction on the reporting of these proceedings.
There is no difficulty, I hope, about that.
LESTER: I am grateful, my Lord. We have been able to discuss that. The
declaration that all counsel think is sufficient relief would be one quite
simply that the Director of Public Prosecutions' decision to proceed with these
prosecutions in each of these cases is unlawful. Then we would ask for an
order for costs and legal aid taxation. My learned friend Mr Pannick will need
to address your Lordships.
LORD CHIEF JUSTICE: We, I think, had frankly thought, without giving the
matter any detailed consideration, that it would be going to the Court of
Appeal, Civil Division, but it could well be that you are all right about that.
PANNICK: There is. In this case we submit that the law has moved on very
considerably. There are a number of cases that the Court of Appeal has
considered. The distinction between civil and criminal, it seems to us, is
plain by reference to the authorities. Where the dispute is as to whether a
prosecution is a valid prosecution and the issue is whether or not the Director
has erred in law on his assessment of the validity of the prosecution by
reference to whether the substantive provisions authorising the prosecution
conflict with the Convention -- that is a criminal cause or matter.
PANNICK: Precisely. That is the view of all of us. We have independently
researched the matter. If your Lordships do need persuasion, then plainly I
would wish to have the opportunity to show your Lordships the authorities, but
none of us has any doubt.
PANNICK: My Lord, I am grateful. My Lord, we have put before you a draft of
points of law of general public importance. Lord Lester will correct me if I
am wrong -- I think the position is that Lord Lester is content with my draft,
subject to wishing to add a further question to which I do not object. I have
not had the opportunity of hearing Mr Robertson's views, but I think they will
be the same. Your Lordships see the three questions:
LESTER: My Lord, it is only 2(b), that is to say whether, pending the bringing
into force of its substantive provisions, the enactment of the Human Rights Act
1998 gives rise to an enforceable legitimate expectation that the Director of
Public Prosecutions will exercise his prosecutorial discretion in accordance
with the European Convention on Human Rights.
PANNICK: That would be a new question (2), and (2) and (3) would be
renumbered. My Lords, we particularly ask your Lordships to grant leave to
appeal rather than leaving it their Lordships' House so that we can take steps
to seek to bring on an appeal in their Lordships' House speedily -- as soon as
possible next term. My Lord, the Director and others are concerned about the
general impact of your Lordships' judgment on other cases. Indeed Mr Rabinder
Singh tells me that he has already been involved in another case in the Court
of Appeal, Criminal Division, when the court yesterday adjourned the case so
that they could consider the impact of your Lordships' judgment. The issue in
that other case is, as I understand it, whether an ex parte hearing in the
absence of the defendants on non-disclosure of documents for public interest
immunity reasons is consistent with Article 6. There will no doubt be other
cases where the impact of your Lordships' judgment will have to be considered.
We therefore ask your Lordships to grant leave to appeal so that the matter can
be heard as soon as possible.
JUSTICE LAWS: Mr Pannick, it might be said that although the context of this
case is the very important one of the Convention, in fact the reasoning of the
judgments that we have delivered shows that the case was disposed of on
conventional public law principles.
PANNICK: My Lord, in my submission the issues are of considerable general
public importance and of some novelty relating to the application of the
Convention to the exercise of discretionary functions, particularly in the
context of prosecution. I appreciate your Lordships have reached a very firm
judgment as to the correct answer. In my submission that does not diminish the
importance of the issues and their general indications for the conduct of
public authorities in the period leading up to bringing into force of the Human
Rights Act. They are very important issues and I would therefore invite your
Lordships to grant leave to appeal.
LESTER: My Lord, I am not sure I can be of great assistance. I agree with my
learned friend that the issues are novel and of public importance. I also
agree with the observations of my Lord, Laws LJ, that one could say that your
Lordships have used conventional public law principles to dispose of the
appeal. If I had lost, I would have made exactly the same submissions as my
learned friend Mr Pannick. That is why I am inhibited from saying more than
that it seems to me to be a matter of great importance to decide whether to
give leave to appeal either here or leave it to the House of Lords because that
may well have wider implications, not only for pending cases but also for the
Government's decision about when to bring the Human Rights Act into force. I
think I will adopt a rather wet, neutral position therefore on whether leave
should be given by this court or it should be left to the House of Lords.
ROBERTSON: No, my Lord, I am totally opposed for this reason. This is a
criminal case. My client is in a wheelchair. The giving of leave would remove
the matter to their Lordships and it would be some nine months before the issue
is considered again. For all that it is of public importance, it is in our
submission not appropriate to use these men as guinea pigs. It would have come
more fairly from Mr Pannick had he prefaced his application by an indication
that in any event the Director would not proceed with this prosecution. That
would be in our submission the fair way if your Lordships are to set this case
on a long journey to their Lordships. It should be done at least after some
indication from the Director that he will not proceed with a trial come what
may. My Lord, that is the position which I regret having to take, but as
counsel for men in this position I have to take it, namely that the court,
whilst certifying the points as of general public importance (as they
undoubtedly are) should let their Lordships decide whether it is a matter that
requires their leave.
PANNICK: My Lords, the applicants are of course protected by the abuse of
process principle should it be the case that it becomes inappropriate to
continue the prosecutions against them. The Director will, I can assure your
Lordships, give consideration to all the circumstances as they arise at the
time when these proceedings terminate as to whether it is appropriate to
continue the prosecutions should he have power to do so. In my submission one
anticipates that this matter will not take a long time to be disposed of in
their Lordships' House because we are optimistic that if your Lordships do
grant leave, their Lordships will consider it and determine it next term.
Those are my submissions.
LORD CHIEF JUSTICE: Thank you. With the substitution of Lord Lester's
question 2(b) to be inserted between Mr Pannick's questions (1) and (2) we
propose to certify these questions as points of law of general public
importance and to grant leave. In making that order we wish to say that in the
ordinary course we should have been inclined to certify some, but perhaps not
all, of these questions and should also have been inclined to leave it to their
Lordships to decide whether leave should be granted or not. We are, however,
conscious of the timetable and it seems to us very much more likely that an
early hearing to dispose of the matter finally can be arranged if we grant
leave rather than leaving it to the parties to apply to the House. We are also
very conscious of the potentially far-reaching implications of decisions on
this matter pending the coming into force of the main provisions of the Human
Rights Act, and that also affects our decision.
following declaration was agreed between all counsel: that the Director of
Public Prosecutions' decision to proceed with the prosecutions in each of the
cases was unlawful; that the applicants' applications for costs be granted and
that there be legal aid taxation.