R v DPP ex parte Kebeline

JurisdictionUK Non-devolved
CourtHouse of Lords
Judgment Date28 October 1999
Judgment citation (vLex)[1999] UKHL J1028-2
Date28 October 1999

[1999] UKHL J1028-2


Lord Slynn of Hadley

Lord Steyn

Lord Cooke of Thorndon

Lord Hope of Craighead

Lord Hobhouse of Woodborough

Director of Public Prosecutions
Ex Parte Kebeline

And Other


(On Appeal From a Divisional Court of the Queens Bench Division)


My Lords,


I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Steyn. The opinion which I intended to write would have been largely repetitious of the views which he expresses. Accordingly and despite the fact that we are differing from forcefully stated conclusions of the Divisional Court I limit myself to saying that for the reasons which Lord Steyn gives I too would allow the appeal.


My Lords,


In the Divisional Court the Lord Chief Justice observed that this case raises important issues regarding the impact of the Human Rights Act 1998 on the exercise of the discretion of the Director of Public Prosecutions during the interim period between the enactment of the Act of 1998 and the bringing into force of its main provisions; and about the role and jurisdiction of the court in reviewing that exercise of discretion: [1999] 3 W.L.R. 175. The Divisional Court held that the DPP had acted unlawfully and granted a declaration to that effect. The DPP now appeals to the House of Lords.


The charges


In 1997 officers of the anti-terrorist squad arrested Mr Kebeline, Mr Boukemiche and Mr Souidi. All three were Algerian nationals. They were charged with offences under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989. Section 16A of the Act of 1989, so far as it is 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.


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.


Conviction on indictment carries a maximum penalty of 10 years imprisonment plus a fine in an unlimited sum. The particulars of offence against the three men were 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 charges arose from items found during police searches at various addresses in London. The case against the three men was that as members of the Armed Islamic Group they had been engaged in sending equipment to Algeria for use in the civil war in Algeria.


Section 19(1)(aa) of the Act of 1989 requires the consent of the Director of Public Prosecutions for proceedings under the Act of 1989. In the Divisional Court the Lord Chief Justice explained that section 16A is directed not to unlawful possession of explosives or firearms, which may be the subject of prosecution without resort to section 16A but to the possession of articles and items of information innocent in themselves but capable of forming part of the paraphernalia or operational intelligence of the terrorist. The purpose of requiring the DPP's consent to prosecutions under section 16A is, to ensure that the decision to prosecute is taken at a very senior level in the CPS, following a careful consideration of all relevant matters including the public interest, and to protect defendants from the risk of oppressive prosecutions: see [1999] 3 W.L.R. 175, at 182H-183A. In the present case the DPP gave his consent to the criminal proceedings under the Act of 1989.


The trial


The trial commenced on 9 March 1998 but was adjourned on the grounds of late service of evidence by the Crown Prosecution Service. The new trial started on 12 October 1998. Counsel for the three defendants applied for a stay on the ground that it proved impossible to obtain evidence from Algeria. The judge dismissed the application. On 27 October 1998 the jury was empanelled. At the close of the case for the prosecution the defence sought a ruling from the judge that section 16A of the Act of 1989 reversed the legal burden of proof and was therefore in breach of Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6(1) of the Convention contains the general right to a fair trial. Article 6(2) provides: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." It must be read with Article 13 which requires an effective remedy in national courts for a breach of the rights defined in the Convention. The defence sought this ruling for two reasons. First, in order to persuade the DPP to reconsider his consent. Secondly, as an aid to a renewal of the abuse of process application made at the outset of the trial. On 20 November 1998 the judge ruled that section 16A was in conflict with Article 6(2). He gave the reasons for his decision on 23 November 1998. The solicitors for the defendants then wrote to the DPP requesting him to reconsider his consent to the proceedings. The DPP's view was that section 16A was not inconsistent with article 6(2) of the Convention. But he sought the advice of Mr Rabinder Singh, a barrister with extensive experience in this field. Mr Singh supported the DPP's view. On 26 November 1998 Mr Singh appeared on behalf of the DPP before the judge and attempted to persuade the judge to reverse his earlier ruling. Mr Singh made clear that the DPP did not agree with the judge's ruling. After hearing argument the judge adhered to his earlier ruling. The DPP then sought a further short adjournment after which the DPP indicated that it was his intention to proceed with the prosecution. The defence then placed another argument on abuse of process before the judge but the judge rejected it. On 14 December 1998 the judge discharged the jury because the prosecution had not fully complied with its disclosure obligations and prosecuting counsel required a lengthy adjournment to complete this task. A new trial date had to be fixed.


The application for judicial review


On 18 December 1998 the three defendants applied for leave to move for judicial review. Form 86A described the decision in respect of which relief was sought as being "the continuing decision of the Director of Public Prosecutions ("the DPP") to give his consent pursuant to section 19(1) (aa) of the Prevention of Terrorism (Temporary Provisions) Act 1989 ("the PTA") for the prosecution of the applicants for an offence contrary to section 16A of the PTA". Form 86A sought a declaration that "the decision of the DPP to give his continued consent to the prosecution of the applicants involves an error of law, namely an erroneous conclusion that the prosecution is compatible with Article 6(2) of the European Convention on Human Rights."


On 26 January 1999 Turner J. granted leave to move for judicial review to the three applicants as well as to a fourth applicant (Mr Rechachi).


The Proceedings in the Divisional Court


The importance of the issues led to the matter being heard in March this year by Lord Bingham of Cornhill, C.J., sitting with Laws L.J. and Sullivan J., judges with enormous experience in human rights law and public law issues. The Divisional Court granted a declaration that the DPP's decision to proceed with the prosecution was unlawful: [1999] 3 W.L.R. 175. The Lord Chief Justice took the view that section 16A of the Act of 1989 undermines in a blatant and obvious way the presumption of innocence: at 190F. He observed that: "Under section 16A a defendant could be convicted even if the jury entertained a reasonable doubt whether he knew that the items were in his premises and whether he had the items for a terrorist purpose": at 190H: The Lord Chief Justice held that section 29(3) of the Supreme Court 1981 did not preclude the granting of relief. The Lord Chief Justice accepted that it is not for the DPP to disapply legislative provisions which Parliament has enacted. But relying on the judgment of Lord Hope of Craighead (given with the agreement the other members of the House) in Reg. v. Secretary of State for the Home Department, Ex parte Launder [1997] 1 W.L.R. 839 at 867 the Lord Chief Justice held that it was appropriate for the Court to review the soundness of the legal advice on which the DPP acted. The Lord Chief Justice explained:

"Where the grant of leave to move for judicial review would delay or obstruct the conduct of criminal proceedings which ought, in the public interest, to be resolved with all appropriate expedition, the court will always scrutinise the application with the greatest care, both to satisfy itself that there are sound reasons for making the application and to satisfy itself that there are no discretionary grounds (such as delay or the availability of alternative...

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