Belhaj & Anor v Director of Public Prosecutions & Anor, United Kingdom Supreme Court, Judgment, Law, casemine.com

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Belhaj & Anor v. Director of Public Prosecutions & Anor

Smart Summary

Factual and Procedural Background

The Appellants allege that they were abducted abroad and ultimately delivered to foreign authorities, allegedly with the collusion of United Kingdom intelligence personnel. Parallel civil damages proceedings arising out of those allegations are already before the High Court, where a statutory closed-material declaration has been made.

Separately, the Metropolitan Police opened a criminal investigation in 2012. On 9 June 2016 the Director of Public Prosecutions decided that there was insufficient evidence to prosecute the intelligence officer concerned. A senior Crown Prosecution Service lawyer confirmed the decision after an internal Victims’ Right of Review. Much of the material was classified “TOP SECRET – STRAP 2,” preventing disclosure to the Appellants.

The Appellants sought judicial review of the refusal to prosecute, alleging (i) legal misdirection, (ii) procedural unfairness and (iii) irrationality on the evidence. The Secretary of State applied for a declaration under section 6 of the Justice and Security Act 2013 so that the court could consider the classified material in closed session. The Divisional Court held that the judicial-review proceedings were not “proceedings in a criminal cause or matter,” and therefore the 2013 Act applied. The present appeal to the Supreme Court challenges that conclusion.

Legal Issues Presented

Whether an application for judicial review of a prosecutorial decision is “proceedings in a criminal cause or matter” within the meaning of section 6(11) of the Justice and Security Act 2013.
If so, whether that characterisation removes the High Court’s statutory power to adopt a closed material procedure under the 2013 Act.

Arguments of the Parties

Appellants’ Arguments

Closed material procedure curtails fundamental common-law rights; therefore the 2013 Act must be read narrowly under the principle of legality.
The phrase “criminal cause or matter” naturally and historically includes judicial review of criminal-justice decisions; hence the High Court lacks jurisdiction to adopt the closed procedure.

Respondents’ Arguments

Judicial review only holds the executive to account and does not itself determine criminal liability; it should therefore be regarded as civil.
Without a closed material procedure the court would likely uphold a public-interest-immunity claim, preventing any judicial scrutiny of the secret evidence and producing injustice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Belhaj v Straw [2017] AC 964	Provides factual background and shows parallel civil proceedings where a section 6 declaration was made.	Referenced to explain the overlap between the civil claim and the present judicial-review proceedings.
A v United Kingdom (2009) 49 EHRR 29	Closed material can sometimes be compatible with Article 6 if strictly necessary and counterbalanced.	Cited to demonstrate that closed procedures may, in principle, satisfy the Convention.
Doorson v Netherlands (1996) 22 EHRR 330	Part of Strasbourg line recognising limited restrictions on adversarial rights.	Included within the quotation from A v United Kingdom illustrating acceptable limits on disclosure.
Van Mechelen v Netherlands (1998) 25 EHRR 647	Same Strasbourg principle on balancing fairness and security.	Quoted for consistency with the closed-material jurisprudence.
Jasper v United Kingdom (2000) 30 EHRR 441	Article 6 tolerates non-disclosure only with sufficient counter-balances.	Part of the illustrative list of Strasbourg authority.
SN v Sweden (2002) ECHR 2002-V	Reinforces Strasbourg approach to limited secrecy in criminal cases.	Included in the same Strasbourg passage.
Botmeh and Alami v United Kingdom (2008) 46 EHRR 31	Further example of acceptable closed procedures under Article 6 when safeguards exist.	Cited within the Strasbourg survey.
Kennedy v United Kingdom (2011) 52 EHRR 4	Softened the requirement that a defendant know enough detail to instruct a representative.	Used to show later Strasbourg acceptance of proportionate secrecy.
Tariq v Home Office [2012] 1 AC 452	UK Supreme Court application of Kennedy; closed procedure may be lawful even with limited disclosure to the individual.	Cited to trace domestic adoption of Strasbourg reasoning.
R v Davis [2008] 1 AC 1128	Common-law rule that evidence cannot be withheld from parties absent statutory authority.	Relied on to emphasise that closed procedures require clear legislation.
Al Rawi v Security Service [2012] 1 AC 531	Closed material procedure is not within inherent jurisdiction; only Parliament can authorise it.	Forms the backdrop to why the 2013 Act was needed.
Carnduff v Rock [2001] EWCA Civ 680; [2001] 1 WLR 1786	Illustrates civil claims becoming untriable because sensitive material cannot be disclosed.	Explains mischief that the 2013 Act sought to cure.
R v Commissioner of Police Ex p Blackburn [1968] 2 QB 118	Police charging decisions are amenable to judicial review.	Cited to show the breadth of High Court supervisory jurisdiction over criminal process.
R (Aru) v Chief Constable of Merseyside Police [2004] 1 WLR 1697	Judicial review available for police cautions; such proceedings are “criminal causes or matters.”	Used to demonstrate High Court criminal-review jurisdiction.
R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756	Reviewability of prosecutorial decisions.	Supports inclusion of prosecution decisions within criminal matters.
R v DPP Ex p Kebilene [2000] 2 AC 326	DPP’s consent decisions subject to judicial review.	Cited as part of the survey of supervisory jurisdiction.
Mohit v DPP of Mauritius [2006] 1 WLR 3343	Attorney-General’s power to enter a nolle prosequi reviewable.	Further example of criminal supervisory cases.
R v Manchester Crown Court Ex p DPP [1993] 1 WLR 1524	Identifies orders of the Crown Court reviewable by High Court.	Shows integration of review into criminal justice system.
R v Maidstone Crown Court Ex p Harrow LBC [2000] QB 719	High Court may review Crown Court acts done in excess of jurisdiction.	Supports breadth of “criminal cause or matter.”
Ex p Alice Woodhall (1888) 20 QBD 832	Early authority giving a broad meaning to “criminal cause or matter.”	Relied on by majority as historical foundation.
Provincial Cinematograph Theatres Ltd v Newcastle Profiteering Committee (1921) 90 LJ KB 1064	Decision to prosecute is within a criminal matter for appeal-route purposes.	Cited alongside Woodhall to support broad reading.
Amand v Secretary of State [1943] AC 147	If a proceeding can ultimately expose a person to conviction, it is a criminal cause or matter.	Key authority adopted by majority.
Guardian News & Media v Westminster Magistrates’ Court [2011] 1 WLR 3253	Collateral applications (press access) are not necessarily criminal matters.	Used to mark the limits of the category.
Barras v Aberdeen Steam Trawling [1933] AC 402	When Parliament re-uses words already judicially defined, the prior meaning is presumed.	Discussed in interpreting “criminal cause or matter.”
R (Sarkandi) v Secretary of State [2016] 3 All ER 837	Statutory closed procedure should be construed according to natural meaning, not narrowly.	Quoted by majority to reject a restrictive reading.
R (N) v Lewisham LBC [2015] AC 1259	Supreme Court endorsement of the Barras principle (presumption of continuity).	Noted in discussion of interpretative presumptions.
Ex p Pulbrook [1892] 1 QB 86	Permission to prosecute for criminal libel is a criminal matter for appeal purposes.	Referred to in dissent’s historical survey.
Ex p Schofield [1891] 2 QB 428	Example of early broad approach to “criminal matter.”	Mentioned in dissent.
Farrell v Alexander [1977] AC 59	Authority questioned in later debate on Barras.	Referenced by dissent regarding interpretative caution.
A v Hoare [2008] 1 AC 844	Further commentary on Barras reservations.	Cited in dissent’s analysis.
Guardian News & Media (No 2) [2013] QB 618	Meaning of “criminal cause or matter” can vary with context.	Used by dissent to show contextual flexibility.
Al Fawwaz v Secretary of State [2015] EWHC 468	Observation that judicial-review proceedings may be distinct from criminal matters.	Cited by dissent.
McGartland v Attorney General [2015] EWCA Civ 686	Guidance on applying section 6 declarations.	Referenced when listing safeguards.
F v Security Service [2013] EWHC 3402; [2014] 1 WLR 1699	High Court guidance on the “fair and effective” test in section 6.	Quoted for scope of consideration.
Khaled v Secretary of State [2017] EWHC 1422	Further example of section 6 jurisprudence.	Cited in dissent’s list of safeguards.
R (Haralambous) v Crown Court [2018] 2 WLR 357	Presumption of regularity where sensitive material cannot be disclosed.	Used to illustrate potential response to non-disclosure.
Rossminster [1980] AC 952	Part of presumption-of-regularity line.	Cited within same discussion.
T C Coombs & Co [1991] 2 AC 283	Presumption of legality in official action.	Referenced with Rossminster.
Bank Mellat v HM Treasury (No 2) [2014] AC 700	Closed hearings offend open justice and natural justice but may be necessary.	Quoted in dissent to emphasise gravity of secrecy.
R v Secretary of State Ex p Simms [2000] 2 AC 115	Principle of legality: fundamental rights not curtailed by general words.	Relied on by Appellants and discussed by court.
Fothergill v Monarch Airlines [1981] AC 251	Permits reference to explanatory materials for purposive construction.	Cited in dissent on interpretation methods.
Westminster CC v National Asylum Support Service [2002] 1 WLR 2956	Use of preparatory documents in statutory interpretation.	Quoted for same interpretative point.
R (Pretty) v DPP [2002] 1 AC 800	Example of judicial review of prosecutorial decision categorised as criminal matter.	Cited historically.

Court's Reasoning and Analysis

By a majority, the Supreme Court held that, in their “ordinary and natural meaning,” the words “proceedings in a criminal cause or matter” embrace judicial-review proceedings that challenge a decision taken within the criminal justice process. Judge Sumption, with whom Judges Hale and Mance agreed, reasoned as follows:

The High Court’s supervisory jurisdiction over criminal investigations, charging and prosecutorial decisions is extensive and integral to the criminal process.
Historical authorities (e.g., Woodhall, Amand) consistently treated such supervisory proceedings as “criminal causes or matters.” Parliament used the same phrase in the 2013 Act without signalling any different intention.
The statutory purpose for excluding criminal matters from the closed material procedure is to leave intact the special safeguards inherent in criminal justice, notably the prosecution’s ability to abandon proceedings where disclosure would harm national security. That rationale applies equally to a judicial review designed to compel a prosecution.
Context therefore confirms, rather than displaces, the natural meaning; had Parliament wished to differentiate between supervisory proceedings and trials it could have done so expressly.

The minority (Judges Lloyd-Jones and Wilson) would have dismissed the appeal, emphasising that judicial review is a public-law exercise distinct from adjudicating guilt, and that the purpose of the exclusion was only to prevent the use of secret evidence in actual criminal trials. They relied on the flexibility of the phrase in other statutory contexts and the policy aim of enabling review of classified material in exceptional civil-type proceedings.

Holding and Implications

APPEAL ALLOWED. The court declared that these judicial-review proceedings are “proceedings in a criminal cause or matter” for the purposes of section 6 of the Justice and Security Act 2013. Consequently, the High Court lacks jurisdiction to grant a section 6 declaration permitting a closed material procedure.

Implications: the decision restricts the reach of the Justice and Security Act 2013 by preventing closed material procedures in judicial reviews that relate to prosecutorial decisions. The ruling preserves traditional criminal-justice safeguards even at the supervisory-jurisdiction stage, but it leaves government agencies to rely on public-interest-immunity claims if disclosure of sensitive evidence is resisted. No new doctrine was created, but the judgment clarifies the boundary between criminal and civil proceedings for the purposes of national-security secrecy legislation.