Defining 'Criminal Cause or Matter' for Closed Material Procedures:
Belhaj & Anor v Director of Public Prosecutions & Anor [2018] UKSC 33

Introduction

Belhaj & Anor v Director of Public Prosecutions & Anor [2018] UKSC 33 is a landmark judgment by the United Kingdom Supreme Court that addresses the application of closed material procedures in judicial review proceedings. The case revolves around the appellants, Mr. Belhaj and his wife Ms. Bouchar, who challenged the decision of the Director of Public Prosecutions (DPP) not to prosecute Sir Mark Allen. The central issue was whether the judicial review could involve closed material not disclosed to the appellants, under the provision of the Justice and Security Act 2013.

This commentary delves into the intricacies of the judgment, exploring the new legal principles established regarding the classification of proceedings as "criminal cause or matter," and the consequent implications for closed material procedures.

Summary of the Judgment

The Supreme Court held that the judicial review proceedings challenging the DPP's decision not to prosecute did indeed constitute "proceedings in a criminal cause or matter." Consequently, these proceedings fell outside the scope of the closed material procedure as defined by the Justice and Security Act 2013. This decision effectively means that the court cannot access sensitive material not disclosed to the appellants, ensuring that such judicial reviews maintain transparency and adhere to principles of open justice.

Analysis

Precedents Cited

The judgment extensively references several key precedents that shaped the court’s reasoning:

• A v United Kingdom (2009) 49 EHRR 29 – This case from the European Court of Human Rights establishes that closed material procedures may be justified to protect national security or sensitive investigations, provided they balance the rights of the individual with public interests.
• R v Davis [2008] 1 AC 1128 – Reaffirmed the rule that no material should be undisclosed in litigation without specific statutory authority.
• Al Rawi v Security Service [2012] 1 AC 531 – Clarified that the jurisdiction to adopt closed material procedures lies with Parliament, not inherently within common law.
• Belhaj v Straw [2017] EWHC 1861 (QB) – Provided parallel civil proceedings context supporting the appellants’ arguments.
• R (Sarkandi) v Secretary of State for Foreign and Commonwealth Affairs [2016] 3 All ER 837 – Emphasized that statistical or pattern-based legal reasoning must align with legislative intent.
• Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 – Introduced the principle that judicially interpreted terms in earlier statutes should maintain their meanings in subsequent similar contexts.

These precedents collectively informed the court's interpretation of statutory language and the boundaries of judicial authority concerning closed material procedures.

Legal Reasoning

The core of the court’s reasoning centered on interpreting the phrase "proceedings in a criminal cause or matter" within the context of the Justice and Security Act 2013. The majority, led by Lord Sumption and Lady Hale, argued that judicial reviews of prosecutorial decisions inherently involve criminal matters because they pertain to potential criminal prosecution outcomes. They emphasized that such reviews are integral to the criminal justice system's fairness and accountability, thus necessitating transparency rather than secrecy.

The court dissected the statutory definitions and the legislative intent behind the exclusion of criminal proceedings from closed material procedures. It determined that the natural and ordinary meaning of "criminal cause or matter" encompasses judicial reviews in this context, as these reviews do not merely address ancillary or collateral aspects but directly relate to the initiation or cessation of criminal prosecutions.

Furthermore, the court assessed the principle of legality and the Barras principle, ultimately finding that these did not compel a narrow interpretation of the statutory language in this specific case. The majority held that the legislative framework deliberately balanced national security interests with the principles of open justice, and thus, the judicial review fell outside the closed material procedure's purview.

Impact

This judgment has far-reaching implications for future proceedings involving closed material procedures. It clarifies the boundaries between civil and criminal proceedings, ensuring that judicial reviews of prosecutorial decisions remain transparent and subject to public scrutiny. This enhances accountability within the criminal justice system and reinforces the protection of fundamental rights such as open justice and natural justice.

Additionally, it sets a precedent for interpreting legislative language concerning judicial procedures, emphasizing the need for precise statutory definitions and the limited scope of judicial authority in expanding statutory frameworks without explicit parliamentary mandate.

Complex Concepts Simplified

Closed Material Procedure

A closed material procedure is a legal process where certain sensitive evidence is not disclosed to all parties involved, typically to protect national security or sensitive investigations. Only the court and approved advocates can access this material.

Judicial Review

Judicial review is a process where courts examine the lawfulness of decisions or actions made by public bodies. It does not determine the outcome of the original action but assesses whether it was legally appropriate.

"Criminal Cause or Matter"

The term "criminal cause or matter" refers to any legal proceedings that involve potential criminal charges, prosecutions, or decisions directly related to criminal activities and their legal consequences.

Justice and Security Act 2013

The Justice and Security Act 2013 is a UK law that, among other things, outlines the conditions under which closed material procedures can be applied in civil proceedings to protect national security during litigation.

Public Interest Immunity (PII)

Public Interest Immunity is a legal mechanism that allows the state to withhold certain sensitive information from disclosure in legal proceedings if releasing it would harm national interests.

Conclusion

The Supreme Court's judgment in Belhaj & Anor v Director of Public Prosecutions & Anor [2018] UKSC 33 significantly clarifies the application of closed material procedures within the framework of the Justice and Security Act 2013. By affirming that judicial reviews of prosecutorial decisions constitute "criminal causes or matters," the court ensured that such reviews maintain the integrity and transparency essential to the criminal justice system.

This decision reinforces the principle that closed material procedures are not to be broadly applied, thereby safeguarding fundamental rights to open justice and natural justice. It delineates the boundaries of legislative intent and judicial authority, emphasizing the necessity for precise statutory language when balancing national security concerns with individual rights.

Moving forward, legal practitioners must carefully assess the nature of proceedings to determine the applicability of closed material procedures, ensuring that transparency and accountability remain paramount in the administration of justice.