Abdel Hakim Belhaj and Another v Director of Public Prosecutions Sir Mark Allen CMG and Others (Interested Parties)

JurisdictionEngland & Wales
JudgeLord Justice Irwin,Mr Justice Popplewell
Judgment Date01 December 2017
Neutral Citation[2017] EWHC 3056 (Admin)
Docket NumberCase No: CO/5488/2016
CourtQueen's Bench Division (Administrative Court)
Date01 December 2017

[2017] EWHC 3056 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Irwin

Mr Justice Popplewell

Case No: CO/5488/2016

(1) Abdel Hakim Belhaj
(2) Fatima Boudchar
Director of Public Prosecutions
(1) Sir Mark Allen CMG
(2) Commissioner of Police of the Metropolis
(3) The Secretary of State for Foreign and Commonwealth Affairs
Interested Parties

Clare Montgomery QC and Helen Law (instructed by Leigh Day) for the Claimants

John McGuinness QC and Tom Little (instructed by Government Legal Department) for the Defendant

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

Jeremy Johnson QC and Zubair Ahmad (instructed by the Special Advocates' Support Office) appeared as Special Advocates

Hearing dates: 2 nd and 3 rd November 2017


Lord Justice Irwin



The Claimants' case is that they were unlawfully "rendered" from Thailand to Libya in March 2004. In separate civil proceedings (see: Belhaj and Anr v Rt Hon Jack Straw and Ors [2017] EWHC 1861 (QB)), these Claimants are suing a number of Defendants for damages in respect of the alleged rendition. One of the Defendants in the civil claim is Sir Mark Allen CMG. The allegation in the civil proceedings is that he was instrumental in arranging the rendition.


In January 2012 an investigation began into complaints of ill-treatment of detainees, which became known as Operation Lydd. As a consequence of those investigations consideration was given as to whether there should be a prosecution inter alia for misconduct in public office associated with the rendition. On 9 June 2016, Ms S J Hemming, Head of Special Crime and Counter-terrorism Division of the Crown Prosecution Service, wrote to those then representing the Claimants informing them that the decision was there should be no such prosecution. The letter stated:

"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 receipt of that letter the Claimants invoked their Victim's Right to Review. The Review was conducted by the Director of Legal Services at the Crown Prosecution Service, Gregor McGill. In a letter of 5 August 2016, he wrote:

"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."


On 20 October 2016, the Claimants initiated Judicial Review proceedings, seeking to challenge the decision not to prosecute.


On 8 August 2017, the Secretary of State for Foreign and Commonwealth Affairs ["The Secretary of State"] applied, then as a non-party to the action, that there should be a declaration pursuant to Section 6 of the Justice and Security Act 2013 [" JSA 2013"] permitting Closed Material Proceedings ["CMP"] in the case. That application is resisted by the Claimants on a number of grounds, the first of which is jurisdiction. In very short summary, the Claimants submit that these Judicial Review Proceedings constitute a "criminal cause or matter" within the meaning and for the purposes of the JSA 2013, and hence fall outside the Court's jurisdiction to make a declaration under Section 6 of the JSA 2013. Following argument, we ruled on Friday, 3 November 2017 against the Claimants on this issue. In this judgment we give our reasons.


This decision turns on a point of law. I should make it clear that, following the consent of the parties, we have looked at closed material de bene esse with a view to giving directions in the case, and indeed we held a brief closed hearing. The question at hand does not relate to or turn on any closed evidence, and all legal submissions relevant to the question were able to be made in open. There is no closed ruling in relation to the jurisdiction issue.

The Legislation


The relevant parts of Section 6 of the JSA 2013 read as follows:

"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."


The critical question here is whether these proceedings are "proceedings (other than proceedings in a criminal cause or matter)".


The phrase "criminal cause or matter" has received extensive judicial consideration, although with one exception (to which I will come) not in the context of the JSA 2013. Judicial consideration of that phrase has arisen overwhelmingly during consideration of appeal routes from the High Court, currently laid down in Section 18 of the Senior Courts Act 1981, and previously under predecessor statutes. This forms an important context to the use and meaning of the critical phrase.

Historic use of the term "criminal cause or matter"


By Section 4 of the Supreme Court of Judicature Act 1873 ["the 1873 Act"] the Supreme Court was constituted in two divisions:

"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…"


By Section 16 of the 1873 Act, the newly-constituted High Court was vested with the jurisdiction hitherto exercised, inter alia, by the Court of Queen's Bench, and other named pre-existing courts. By Section 47 of the 1873 Act, the High Court was endowed with the following business:

" 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…"


By Section 71:

"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."


Section 100 of the 1873 Act provided definitions of relevant terms:

"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."


It follows from the above that, at the creation of the Court of Appeal, the newly constituted High Court maintained jurisdiction over criminal appeals such as had existed previously in the...

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