R v DPP, ex parte Kebeline
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE LAWS,MR JUSTICE SULLIVAN |
| Judgment Date | 30 March 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0330-14 |
| Docket Number | CO/5065/98 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 1999 |
[1999] EWCA Civ J0330-14
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill)
Lord Justice Laws
and
Mr Justice Sullivan
CO/5065/98
CO/0232/99
APPEARANCES:
LORD LESTER QC and MR BEN EMMERSON (instructed by Messrs B M Birnberg & Co, London NW1 7HJ) appeared on behalf of THE APPLICANTS SOFIANE KEBILENE, FARID BOUKEMICHE and SOFIANE SOUIDI
MR GEOFFREY ROBERTSON QC and MR TIM OWEN (instructed by Messrs B M Birnberg & Co, London NW1 7HJ) appeared on behalf of THE APPLICANT FATEH RECHACHI
MR DAVID PANNICK QC, MR RABINDER SINGH and MISS JANE MULCAHY (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENT
Tuesday 30 March 1999
The four applicants before the court are defendants to criminal proceedings brought against them under the Prevention of Terrorism (Temporary Provisions) Act 1989 as amended. They seek to challenge the continuing decision of the Director of Public Prosecutions to consent to the institution of proceedings against them. Their challenge, although put in several different ways, is based on the European Convention on Human Rights and the enactment of the Human Rights Act 1998. The crucial issues between the parties concern the impact (if any) of the Human Rights Act on the exercise of the Director's discretion to prosecute during this interim period between enactment of the 1998 Act and the bringing into force of the main provisions of that Act; and the role and jurisdiction (if any) of this court in reviewing that exercise of discretion.
In May 1997 the applicants Kebilene and Boukemiche were arrested and charged with an offence of possession of items for the purposes of committing terrorism abroad, contrary to section 16A of the 1989 Act. In July 1997 the applicant Souidi was arrested and charged with the same offence. Consent was given by the Director to the institution of proceedings against Kebilene and Boukemiche on 13 August 1997, and they were committed for trial the next day. Consent to the prosecution of Souidi was given on 3 October 1997 and he was committed for trial on 16 October. Following plea and directions hearings in October and December 1997, a trial was fixed for 9 March 1998. On that date there was an abuse of process application which lasted five days and led to the postponement of the trial, which began before His Honour Judge Pownall QC at the Central Criminal Court on 12 October 1998. Following argument on and rejection of a further application for a stay, a jury was empanelled on 27 October, the case was opened and prosecution evidence called. At the conclusion of the evidence counsel for the applicants submitted that section 16A, under which these applicants had been prosecuted, was in conflict with Article 6(2) of the Convention. Having heard argument the judge ruled in favour of the applicants, giving his reasons on 23 November. The solicitor for the applicants wrote to the Director asking him in the light of this ruling to reconsider his consent to the proceedings. Counsel for the Crown sought an adjournment so that the Director could consider the matter, which had been raised for the first time. The Director sought advice from Mr Rabinder Singh, counsel of acknowledged authority in this field. He submitted a skeleton argument, reflecting (as we understand)the advice given to the Director, and appeared in court with the judge's consent to submit that the judge's earlier ruling had been wrong and should be revised. The judge, having heard argument on both sides, adhered to his earlier ruling. The Director for his part remained of opinion that there was no inconsistency between section 16A of the 1989 Act and Article 6(2) of the Convention. A further argument was addressed to the judge on abuse of process, partly relying on the Convention, but the judge rejected it. On 14 December 1998 the jury was, however, discharged, for reasons unconnected with the issues before us.
The applicant Rechachi was arrested on 12 May 1998. On 16 May 1998 he was charged with an offence of possession of articles for purposes of suspected terrorism contrary to section 16A of the 1989 Act and with a further offence of unlawful possession of information contrary to section 16B of the 1989 Act. The Director's consent to the institution of proceedings was given on 3 November 1998 and Rechachi was committed for trial at Southwark Crown Court on both charges. He was arraigned and pleaded not guilty, but has been on conditional bail since 11 December 1998.
On 26 January 1999 Turner J granted all four applicants leave to move for judicial review of the continuing decision of the Director to give his consent under section 19(1)(aa) of the 1989 Act to the prosecution of the respective applicants.
Section 16A of the 1989 Act, so far as relevant, provides:
"(1) A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism to which this section applies.
(2) The acts of terrorism to which this section applies are—
(a) acts of terrorism connected with the affairs of Northern Ireland; and
(b) acts of terrorism of any other description except acts connected solely with the affairs of the UnitedKingdom or any part of the United Kingdom other than Northern Ireland.
(3) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above.
(4) Where a person is charged with an offence under this section and it is proved that at the time of the alleged offence—
(a) he and that article were both present in any premises; or
(b) the article was in premises of which he was the occupier or which he habitually used otherwise than as a member of the public,
the court may accept the fact proved as sufficient evidence of his possessing that article at that time unless it is further proved that he did not at that time know of its presence in the premises in question, or, if he did know, that he had no control over it."
The section applies to vessels, aircraft and vehicles as it applies to premises. Conviction on indictment carries a maximum penalty of ten years' imprisonment plus a fine of unlimited amount.
The particulars of offence charged against the applicants Kebilene, Boukemiche and Souidi alleged that they
"had in their possession chemical containers, radio equipment, manuals, documents, credit cards and sums of money in circumstances which give rise to a reasonable suspicion that the articles were in their possession for a purpose connected with the commission, preparation or instigation of acts of terrorism."
The particulars of offence charged against the applicant Rechachi under section 16A were that he
"had in his possession a quantity of documents, cards, money and books in circumstances which give rise to a reasonable suspicion that those articles were in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism."
Section 16B of the 1989 Act provides:
"(1) No person shall, without lawful authority or reasonable excuse (the proof of which lies on him)—
(a) collect or record any information which is of such a nature as is likely to be useful to terrorists in planning or carrying out any act of terrorism to which this section applies; or
(b) have in his possession any record or document containing any such information as is mentioned in paragraph (a) above.
(2) The acts of terrorism to which this section applies are—
(a) acts of terrorism connected with the affairs of Northern Ireland; and
(b) acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland.
(3) In subsection (1) above the reference to recording information includes a reference to recording it by means of photography or by any other means."
Conviction on indictment of an offence under this section also carries a maximum penalty of ten years' imprisonment plus a fine of unlimited amount. The particulars of offence charged against the applicant Rechachi under this section were that he
"without lawful authority or reasonable excuse had in his possession a quantity of books which contain information which is of such a nature as is likely to be useful to terrorists in planning or carrying out an act of terrorism."
By section 19(1)(aa) the consent of the Director is required for the institution of proceedings for an offence under either of these sections in England and Wales.
It is unnecessary for present purposes to summarise the facts upon which the Crown rely in prosecuting the applicants under these sections. The particulars refer to acts of terrorism outside the United Kingdom, and the terms of the sections make plain that they are directed against acts of terrorism either connected with the affairs of Northern Ireland or with countries other than the United Kingdom and its constituent parts other than Northern Ireland. Both sections, it is clear, have grown as a response to Irish terrorism, although the application of the sections has now been extended. They are directed not to...
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