Director of Public Prosecutions, Ex Parte Kebeline and Others, R v.

Factual and Procedural Background

Three Algerian nationals (“Respondents”) were arrested in The City in 1997 and charged under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989. The indictment alleged possession of assorted equipment and funds “in circumstances giving rise to a reasonable suspicion” of terrorist intent. Under section 19(1)(aa) of the statute, proceedings could not begin without the consent of the Director of Public Prosecutions (“Appellant”). The consent was granted and the case proceeded to trial in the Crown Court.

The first trial began in March 1998 but was adjourned for late disclosure; the retrial started in October 1998. Mid-trial, defence counsel contended that section 16A reversed the burden of proof and infringed Article 6(2) of the European Convention on Human Rights (“the Convention”). The trial judge agreed, but refused to stay the proceedings. When the trial was later aborted for disclosure failures, the Respondents sought judicial review of the Appellant’s “continuing decision” to prosecute. A Divisional Court declared the decision unlawful, prompting the present appeal to the House of Lords.

Legal Issues Presented

1. Whether the Divisional Court’s declaration conflicted with Parliamentary sovereignty by effectively inviting the Appellant to disapply primary legislation (section 16A).
2. Whether, before the Human Rights Act 1998 (“HRA 1998”) fully commences, the Act creates a legitimate expectation that the Appellant will refuse to prosecute in circumstances allegedly incompatible with Article 6(2).
3. Whether section 29(3) of the Supreme Court Act 1981—or a related common-law principle—precludes judicial review of the Appellant’s decision to prosecute.
4. Whether section 16A(1) and (3) impose a “reverse legal burden.”
5. If so, whether that burden is incompatible with Article 6(2) of the Convention.

Arguments of the Parties

Appellant’s Arguments

• The Divisional Court’s order undermined Parliamentary sovereignty; section 16A remains binding law until amended or repealed.
• The HRA 1998 is not yet in force; therefore no legitimate expectation of Convention-compliant prosecutions arises.
• Section 29(3) bars judicial review of matters “relating to trial on indictment,” and common-law principles likewise limit review of decisions to prosecute absent bad faith.
• Section 16A can be read as imposing only an evidential burden or is otherwise justified by national security needs.

Respondents’ Arguments

• Section 16A blatantly infringes the presumption of innocence by allowing conviction on “reasonable suspicion” unless the accused proves innocence.
• The imminent commencement of the HRA 1998 (and section 22(4)) gives rise to a legitimate expectation of Convention-compatible decision-making.
• The Appellant’s reliance on erroneous legal advice constituted an error of law subject to judicial review.
• Section 29(3) does not bar review because the challenge is to the Appellant’s consent, not to a Crown Court ruling.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Steyn (delivering the leading opinion) held that the Divisional Court erred in permitting “satellite litigation” that would delay a trial on indictment. The House reasoned as follows:

• Parliamentary sovereignty: Reviewing the Appellant’s legal advice did not breach sovereignty, but requiring the Appellant to disapply section 16A would.
• Legitimate expectation: Because the HRA 1998 expressly delays the operative sections, no expectation of immediate Convention-compliant prosecution arises.
• Section 29(3) and common law restraint: Although the High Court’s jurisdiction is not formally ousted, strong policy dictates that courts avoid reviewing prosecution decisions where adequate trial and appellate remedies exist. The House ruled that—absent dishonesty, mala fides, or other exceptional circumstances—the Appellant’s consent to prosecute is not reviewable.
• Alternative remedies within the criminal process: Defendants could argue at trial that subsection (3) imposes only an evidential burden, could renew an abuse-of-process motion, or could appeal convictions. Thus judicial review was unnecessary.
• Compatibility question left open: The House expressly declined to decide whether section 16A’s burden is ultimately compatible with Article 6(2), noting that the issue remains “arguable” and should be addressed, if at all, during the criminal proceedings.

Holding and Implications

HELD: Appeal allowed; the Divisional Court’s declaration is quashed.

Immediate effect: The judicial-review order is set aside, permitting the Crown Court trial to proceed (or be re-listed) without further interference. Broader implications: The decision reinforces a strict boundary between criminal proceedings and administrative law, signalling that prosecutorial consent decisions are generally insulated from judicial review unless tainted by bad faith or other extraordinary vitiating factors. No new precedent on the substantive Convention compatibility of reverse-burden provisions was established; that question remains open for determination within future criminal trials and appeals.