(1) Abdel Hakim Belhaj v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green,Lord Justice Irwin |
| Judgment Date | 15 March 2018 |
| Neutral Citation | [2018] EWHC 513 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5488/2016 |
| Date | 15 March 2018 |
[2018] EWHC 513 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Green
Case No: CO/5488/2016
and
Ben Jaffey QC (instructed by the Leigh Day) for the Claimants
John McGuinness QC and Tom Little (instructed by the Government Legal Department) for the Defendant
David Perry QC and Victoria Ailes (instructed by BCL Burton Copeland) for the 1 st Interested Party
The 2 nd Interested Party did not attend and was not represented
James Eadie QC and Ben Watson (instructed by the Government Legal Department) for the 3 rd Interested Party
Zubair Ahmad (instructed by the Special Advocates' Support Office) appeared as Special Advocates
Hearing date: 14 th February 2018
OPEN JUDGMENT FOLLOWING HEARING ON 14 th FEBRUARY 2018
The Issue
This is the judgment of the Court to which we have both contributed. The facts of the case are familiar. A summary can be found in the earlier judgment at [2017] EWHC 3056 (Admin). The case concerns a claim that the DPP erred in her decision not to prosecute for alleged involvement in the unlawful rendition of the Claimants to Libya. We will begin with the main issue. Privileged material was communicated by HM Government to the Metropolitan Police Service, and to the Crown Prosecution Service and Director of Public Prosecutions, and was further transmitted within the CPS, when the Victim's Right to Review [“VRR”] took place.
The information was communicated subject to a limited waiver in the following terms:
“ Legal Professional Privilege
There are some documents provided to the investigation that may be subject to legal professional privilege. The FCO provides these papers for the sole purpose of assisting with this investigation and do not consider to have waived legal privilege for any other purpose, including any future prosecution or civil claim. By convention the FCO would not confirm nor deny publicly whether the advice of the Law Officers has been sought.”
Those terms, or terms indistinguishable from them, were applied to all privileged government information supplied.
Claimants' Submissions
Mr Jaffey QC for the Claimants acknowledges that LPP and legal advice privilege is an absolute privilege: where it exists it is not subject to any balancing exercise and cannot be overturned by reference to the public interest. Properly too, Mr Jaffey argues that privilege arises for Government parties, in relation to advice from in-house as well as independent lawyers. None of those points are in contention. The issue is the effect of the waiver.
It is worth emphasising that the argument arises now for the purpose of the application for a declaration under s.6 of the Justice and Security Act 2013 [“the 2013 Act”]. That is a discrete question from the effect of waiver on the substantive judicial review, perhaps particularly if a declaration is made and the judicial review includes closed material proceedings. At least to some extent, different considerations may apply.
However, the parties have argued the matter fully, perhaps realistically accepting that our decision now will be a highly persuasive starting point for the decision in the main proceedings.
We have already indicated that we take the view the Court has jurisdiction under s.11(4)(a) of the 2013 Act to hold a closed hearing “in relation to” an application for a declaration under s.6, and we have done so, in order to achieve clarification of the application of the terms of the waiver in this case.
The heart of Mr Jaffey's submissions can be summarised as follows. The material considered here, available to those taking or reviewing the decision whether to prosecute by reason of the waiver, may have been very important. When considering whether there was sufficient evidence to found a prosecution for misfeasance in public office (the critical point, since the decision was there was insufficient evidence to prosecute) the police and the DPP are bound to have paid considerable attention to the legal advice given or at least available to the potential criminal defendant. Without sight of such advice he argues the Claimant cannot mount an effective challenge to the decision. Without sight of the legal advice, the Court cannot perform the central task of reviewing the decision.
Mr Jaffey argues that poor legal advice may provide “cover” for an individual who might properly be prosecuted. Bad advice might broadly take two forms: advice given on the basis of inadequate or misleading instructions, or simply poor legal advice even in the face of adequate instructions. In either case the Court's principal function of reviewing the rationality of the decision might be frustrated or deflected if privilege prevented the parties or the Court examining what was done.
Mr Jaffey accepts that legal advice privilege may indeed have such an effect if it is maintained, but here we reach the crux of his argument. He says once privilege is waived at all, then it must be taken to be waived in respect of judicial review proceedings such as these, as well as in respect of the process under review for which an express limited waiver has been given. Mr Jaffey emphasises that in such a case as this, the processes of prosecutorial decision and review are similar in nature to review by the Court, and must have been (or should have been) in contemplation by HM Government when waiving privilege at all. He emphasises that the waiver was voluntary, and indeed could not have been compelled. But once a waiver was agreed, it could not be limited in the way expressed. Accepting that a limited waiver may be effective in other circumstances, the close relationship between, on the one hand the advice by counsel to the DPP, the decision by the DPP and the Review stimulated by the request of the alleged victim, and on the other hand the review by the Court, means that the expressed limit on the waiver is ineffective.
In this sense, he says, the case is a close analogy to the situation in Scottish Lion Insurance Co Ltd v Goodrich Corp [2013] BCC 124 [“ Scottish Lion”]. Although that was a decision of the Court of Session, Inner House, the arguments were principally based on English authority, and carry the authority of Lord Reed who gave the opinion of the Court. As there, the steps from the waiver to judicial review are to be viewed as “part of the single process”: Scottish Lion paragraph 58. We address that authority below.
Submissions of the Secretary of State
Mr Eadie QC for the Secretary of State began by emphasising the ambit of the privilege with which we are concerned. It is the privilege of others in respect of evidence given to the DPP: it is not the privilege of the Director, the Defendant. The Defendant's privilege has been waived, although the disclosure following waiver is into CLOSED for other reasons.
In our view the terms of the waiver set out above are completely clear as to the subjective intentions of the parties, and indeed as establishing objectively the intended limits to the waiver. There is no ambiguity. The waiver was limited to specific expressed purposes, and cannot be read as a general waiver.
Mr Eadie accepts that the exercise of legal advice privilege can frustrate other legal interests. He cited the case of British Coal Corporation v Dennis Rye Ltd. [1988] 1 WLR 1113, where the Court of Appeal held that, even where privileged documents had been provided to assist a murder prosecution, the waiver for that purpose did not constitute waiver for the purpose of related civil proceedings, even in the absence of any express reservation of privilege.
Mr Eadie says this is not a case of ambiguity where the Court must resolve any difficulties of intention or objective meaning such as arose in Berezovsky v Hine [2011] EWCA Civ 1089. The case is obviously to be distinguished from the position in Scottish Lion. There is no call for the Court to infer a broader waiver than that expressed.
Mr Eadie emphasised the damaging consequences if the Claimants' arguments were to succeed. Limited waiver of this kind in the supply, for specific purposes, of privileged information, is relatively widespread in government. Unless the expressed limits of waiver are maintainable at law, the practice will cease. If criminal proceedings are contemplated, as here, the decision would have to be taken without sight of the official legal advice taken or given. A similar situation could arise in a number of contexts, aside from potential prosecution: inquiries being an obvious example. What would the public think if cooperation by HMG was curtailed in that way? However, Mr Eadie argues Government would have little choice.
Subject to argument arising from the “underclaim” of privilege and in relation to illegitimate “cherry-picking” (which we have dealt with in separate open and closed judgments) the intended distinction was clear, maintaining the full gamut of legal advice privilege other than for the consideration of prosecution by the DPP.
As to the difficulty for a reviewing Court and the problem of “bad” legal advice, that would be substantially addressed by adherence to the duty of candour by HMG. In particular, if legal advice appeared to have been given on the basis of inadequate or erroneous information that could be addressed.
Discussion: Relevant General Legal Principles
There is in fact a considerable degree of common ground as to the core principles.
The existence of waiver is not dependent upon the subjective...
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