R (Belhaj) v Director of Public Prosecutions and another

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Lloyd-Jones,Lady Hale,Lord Sumption,Lord Mance,Lord Wilson
Judgment Date04 July 2018
Neutral Citation[2018] UKSC 33

[2018] UKSC 33

Supreme Court

Trinity Term

On appeal from: [2017] EWHC 3056 (Admin)

Before

Lady Hale, President

Lord Mance

Lord Wilson

Lord Sumption

Lord Lloyd-Jones

Belhaj and another
(Appellants)
and
Director of Public Prosecutions and another
(Respondents)

Appellants

Ben Jaffey QC

Helen Law

(Instructed by Leigh Day & Co)

1 st Respondent

John McGuinness QC

Tom Little QC

(Instructed by The Government Legal Department)

2 nd Respondent

James Eadie QC

Ben Watson

James Stansfeld

(Instructed by The Government Legal Department)

Respondents:

(1) Director of Public Prosecutions

(2) Secretary of State for Foreign and Commonwealth Affairs

Heard on 22 March 2018

Lord Sumption ( with whomLady Haleagrees)

1

The factual background to this appeal is set out in the judgments of this Court in Belhaj v Straw [2017] AC 964. In short summary, the first Appellant, Mr Belhaj, was a political opponent of the government of Colonel Gadaffi in Libya. He and his wife Ms Boudchar (the second Appellant) contend that they were abducted and maltreated by agents of Malaysia, Thailand and the United States, and eventually “rendered” to the Libyan authorities, by whom they were imprisoned, tortured, and subjected to other serious maltreatment. The Appellants allege that this was done with the connivance of the British Secret Intelligence Service and in particular that of Sir Mark Allen, who is said to have been a senior officer of that service. We make no finding about that, any more than the courts below did. Her Majesty's Government has neither confirmed nor denied that Sir Mark was involved in these events, and references to him in this judgment should be read in that light. In parallel proceedings, the Appellants have sued the British Government for damages. The present appeal arises out of an investigation commenced by the Metropolitan Police in 2012 into possible criminal offences committed in the course of this history.

2

On 9 June 2016, the Director of Public Prosecutions announced her decision not to bring any prosecutions. That decision was based on a decision of Ms Hemming, a senior prosecutor at the Crown Prosecution Service and on detailed advice given to Ms Hemming by First Senior Treasury Counsel that there was insufficient evidence to prosecute for any offence subject to the criminal jurisdiction of the United Kingdom. In communicating her decision to the Appellants' representatives, Ms Hemming pointed out that “the security marking of the potential evidence in this case is such that I am unable to provide you with a summary of the material submitted to us.” The Appellants applied for an internal review of the decision under the Victims' Right of Review procedure. The case was accordingly referred to another senior CPS prosecutor, Mr Gregor McGill, who reached the same conclusion for substantially the same reasons.

3

On 20 October 2016, the Appellants issued the present proceedings, seeking judicial review of the failure to prosecute Sir Mark Allen. The application is made on three grounds: misdirection in law, procedural unfairness and inconsistency with the evidence. Only the last of these grounds is relevant to the present issues. The Appellants contend that it is irrational because, they say, the material in the public domain is alone enough to make good the elements of the relevant offences. The Director takes issue with this. She says that the Appellants' contention is based on the very limited documentation available to them, whereas the decision not to prosecute was supported by an examination of some 28,000 pages of statements, exhibits and other documents which were considered by the CPS and Treasury Counsel but could not be disclosed to Appellants because of its classification (“TOP SECRET — STRAP 2”). The Appellants' response is that neither the decision itself nor the Director's evidence in support of it adequately discloses her reasoning on this question.

4

The issue on this appeal is whether on the hearing of the application for judicial review, it would be open to the Court to receive closed material disclosed only to the court and a special advocate but not to the Appellants. As will appear, this depends on whether the judicial review proceedings are “proceedings in a criminal cause or matter”.

5

Closed material procedure is a derogation from ordinary principles of forensic justice because it necessarily limits the ability of a litigant or a defendant in criminal proceedings to deploy his case. The degree of limitation will depend on the arrangements made to represent his interests in some other way, although no one suggests that these arrangements can entirely make good the adverse effect on him. There are nonetheless cases in which, notwithstanding that closed material procedure represents imperfect justice, the alternative is no justice at all. For that reason, the European Court of Human Rights has held that closed material procedure may be justified in some cases. In A v United Kingdom (2009) 49 EHRR 29, para 205. the Court observed that

“… even in proceedings under article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v Netherlands (1996) 22 EHRR 330, para 70; Van Mechelen v Netherlands (1998) 25 EHRR 647; para 58, Reports 1997-III; Jasper v United Kingdom [GC] (2000) 30 EHRR 441, paras 51–53; SN v Sweden, No 34209/96, para 47, ECHR 2002-V; and Botmeh and Alami v United Kingdom (2008) 46 EHRR 31, para 37.”

The Strasbourg court in that case held that the use of closed material procedure before the Special Immigration Appeals Commission could be consistent with the Convention, provided that it was strictly necessary in the interests of national security. It considered that the interests of the complainant were sufficiently protected by the use of a special advocate, in those cases where the defendant was given enough information about the allegations against him to enable him to give meaningful instructions to the special advocate. More recent Strasbourg jurisprudence has softened the latter requirement in a case where, even in the absence of such disclosure, resort to closed material procedure was proportionate and the proceedings as a whole were fair: Kennedy v United Kingdom (2011) 52 EHRR 4, paras 184–187, as applied in Tariq v Home Office (JUSTICE intervening) [2012] 1 AC 452.

6

However, the mere fact that the use of closed material procedure may represent a fair balance between national security and the demands of procedural justice does not mean that the courts have power to adopt it. The rule at common law is that, with very limited exceptions, no material can be put before the court in litigation, civil or criminal, without being disclosed to the parties. The rule was reaffirmed for criminal cases in R v Davis [2008] 1 AC 1128 in the special context of the anonymisation of witness evidence. In civil proceedings it was reaffirmed in Al Rawi v Security Service (JUSTICE intervening) [2012] 1 AC 531, which concerned the use of closed material procedure in the context of allegations somewhat similar to those made by the Appellants in the present case. These decisions are authority for the proposition that the adoption of closed material procedure is not within the inherent jurisdiction of the courts and requires specific statutory authority. Closed material procedure has been authorised by statute for proceedings before certain specialised tribunals. It was authorised in proceedings before the SIAC by sections 5 and 6 of the Special Immigration Appeals Commission Act 1997, and provision was made for its use by the Investigatory Powers Tribunal under section 69(4) of the Regulation of Investigatory Powers Act 2000. However, until the enactment of the Justice and Security Act 2013, the High Court had no general statutory power to receive closed material.

7

The background to the Act of 2013 is explained in the Justice and Security Green Paper Cm 8194/2011. There had been a growing number of cases in which civil claims for damages had been brought against the Government or the security agencies or their personnel, which were untriable except at unacceptable cost to the national interest, because of the disclosure of secret material that would have been required. The Government had been obliged to buy off these claims in order to avoid that damage. This was seen as unsatisfactory, because it was costly and deprived the public of answers which litigation might have provided. A more general authorisation of closed material procedure was conceived to be a way of enabling substantial justice to be done on the basis of a full examination of any relevant secret material, even if it was not in all respects seen to be done.

8

Part 2 of the Justice and Security Act 2013 authorised the use of closed material procedure in civil proceedings on certain conditions. The first step in the statutory procedure is an application to a court seized of “relevant civil proceedings” for a “declaration that the proceedings are proceedings in which a closed material application may be made to the court”: section 6(1), (2) of the Act. Section 6(3)-(5) provide:

“(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...

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