R v DPP, ex parte Kebeline

JurisdictionEngland & Wales
CourtQueen's Bench Division
Judgment Date30 March 1999

Queen's Bench Divisional Court

Before Lord Bingham of Cornhill, Lord Chief Justice, Lord Justice Laws and Mr Justice Sullivan

Regina
and
Director of Public Prosecutions, Ex parte Kebilene and Others Regina v DPP, Ex parte Rechachi

Human rights - Prevention of Terrorism Act - incompatible with Human Rights Convention

Terrorism Act incompatible with Convention on Human Rights

Where, pending the coming into force of the Human Rights Act 1998, the Director of Public Prosecutions had consented to prosecutions under sections 16A and 16B of the Prevention of Terrorism (Temporary Provisions) Act 1989, as inserted, and those provisions were ruled at trial as incompatible with the presumption of innocence guaranteed by article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), it was appropriate for him, in reconsidering his consent, to take account of the probable consequences of any such incompatibility.

It was, moreover, appropriate for the Divisional Court, on a challenge to the DPP's decision confirming consent, to review the correctness of the legal basis on which he had relied and to offer guidance as to the true effect of the Convention. In the court's view those provisions, as currently drawn, were repugnant to article 6(2) of the Convention.

The Queen's Bench Divisional Court so held, granting declaratory relief on applications by Sofiane Kebilene, Ferine Boukemiche, Sofiane Souidi and Fateh Rechachi that the continuing decision of the DPP in each case under section 19(1)(aa) of the 1989 Act, as amended by the Criminal Justice and Public Order Act 1994, to continue their prosecutions under sections 16A and 16B of the 1989 Act, as inserted by section 82 of the 1994 Act, was unlawful.

Mr Kebilene, Mr Boukemiche and Mr Souidi had been arrested and charged with an offence contrary to section 16A. At their trial the judge ruled that the section was incompatible with article 6(2) of the European Convention on Human Rights.

The DPP, being asked to reconsider his consent, sought legal advice and appeared by counsel before the judge to submit that the ruling was wrong. The judge adhered to his decision and the director maintained his opinion that section 16A was not inconsistent with article 6(2).

Mr Rechachi was charged with offences under sections 16A and 16B. Following the DPP's consent to the institution of proceedings he was arraigned and pleaded not guilty.

Section 16A of the 1989 Act, as inserted, 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 . . .

"(3) It is a defence for a person charged . . . 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 (1) above.

"(4) Where a person is charged . . . 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."

Section 16B, as inserted, 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."

Article 6 of the European Convention provides:

"2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

Lord Lester of Herne Hill, QC and Mr Ben Emmerson for Kebilene, Boukemiche and Souidi; Mr Geoffrey Robertson, QC and Mr Tim Owen for Rechachi; Mr David Pannick QC, Mr Rabinder Singh and Miss Jane Mulcahy for the DPP.

THE LORD CHIEF JUSTICE said that the crucial issues between the parties concerned the impact, if any, of the 1998 Act on the exercise of the DPP's discretion to prosecute during the interim period between enactment and the bringing into...

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