Judgments - Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others (On Appeal From a Divisional Court of The Queens Bench Division)

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    The circumstances under which these appeals have come before your Lordships' House are exceptional. They arise from the trial of the three Respondents (whom, my Lords, I will refer to as the 'defendants') at the Central Criminal Court on charges under s.16A of the Prevention of Terrorism (Temporary Provisions) Act 1989. The indictment particularised the offence as having 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 prosecution case was that the three defendants had been involved in sending such articles to terrorists in Algeria. The defences of the three defendants were different. Souidi denied being involved with the articles at all. Boukemiche denied having sent to Algeria any material capable of being used in military activity. Kebeline admitted having sent to Algeria at least some of the materials referred to but said that they were not intended for use in connection with terrorism; they were intended for use by members of the Islamic community in the Metidja region of Algeria in defending themselves against unlawful violence by state-sponsored militias.

    At the outset of the trial, counsel for Kebeline submitted that the proceedings should be stayed because of the obstacles to obtaining from Algeria evidence to support his defence. The Judge did not accede to that application and the trial proceeded. The Crown opened the case in terms of s.16A(1) and called its evidence. At the close of the prosecution case, counsel for the defendants asked the Judge to give a ruling upon the correct legal construction of s.16A. They asked for this ruling in order to assist them to advise their clients whether to submit no case to answer and whether to give evidence. The type of arguments which were raised at this stage derived from R. v. Berry (No.3) [1995] 1 W.L.R. 7, R. v. Edwards [1975] Q.B. 27 R. v. Hunt [1987] A.C. 352: What did the prosecution have to prove? (Att-Gen of Hong Kong v. Lee Kwong-kut [1993] A.C. 951. However the arguments also extended to the consideration of Parliamentary material (purportedly under Pepper v. Hart [1993] A.C. 593) and compatibility with Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and whether or not that Article could be used as an aid to construction.

    The outcome was that the defendants apparently accepted that their construction argument could not succeed; they took the view that s.16A was irretrievably incompatible with Article 6(1). They asked the Judge to rule that it was incompatible. Their purpose was, they say, to obtain support for a renewed application for a stay on the ground of abuse of process and to assist them to persuade the Director of Public Prosecutions of his own motion to discontinue the proceedings. The Judge made the ruling for which the defendants asked. An adjournment was granted so that both sides could reconsider their position. On the prosecution side, the Director having taken advice from experienced counsel in this field, Mr Rabinder Singh, which suggested that the Judge's ruling was mistaken, instructed Mr Singh to apply to the Judge to reconsider his ruling. Having heard further argument, the Judge maintained his original ruling. The defendants then made an application for the proceedings to be stayed on the ground of abuse of process. The Judge refused this application. The trial then proceeded for a number of days with the defendants calling evidence. However on 14 December 1998, the trial had to be aborted and the jury discharged because of an unresolved problem in connection with the prosecution's compliance with its disclosure obligations.

    In the ordinary course, the retrial would have taken place fairly soon after. But, before it could do so, the defendants applied for the judicial review of the Director's decision to continue with the prosecution. Originally they applied upon the basis that they had a reasonable expectation that they would not be prosecuted for an offence formulated in terms incompatible with Article 6(2). They, however, also relied upon the submission that the opinion of Mr Rabinder Singh was erroneous in law and therefore any decision of the Director to continue was vitiated by error of law and should be set aside so that he could reconsider it. It was this alternative submission which the Divisional Court upheld.

    One of the features of a prosecution under s.16A upon which the defendants rely is the provision in s.19 of the Act of 1989 that "proceedings shall not be instituted .... except by or with the consent of" the Director. In relation to other offences under the Act the Attorney- General is the relevant person. Such provisions relate to the institution of proceedings. Unless the requisite consent has been given at that stage, the court will be acting without jurisdiction and, if convicted, the defendant will be entitled to have his conviction set aside on appeal. (See R. v. Whale and Locton [1991] Cr. L. Rev. 692 also R. v. Cain [1976] Q.B. 496 and R. v. Jackson [1997] Cr. L. Rev. 293.) Having given his consent to the institution of the proceedings, it of course remains the duty of the Director as the person having the conduct of the prosecution to act responsibly; in this, he is subject to the directions of the Attorney-General and can in suitable cases offer no evidence or enter a nolle prosequi. This duty exists in all prosecutions, not merely ones which required his consent for their institution. In the present case it must be stressed that there is no suggestion that the Director has acted in bad faith or has abused his position. It is simply said, as evidenced by his acceptance of the advice of Mr Singh and his attempt to persuade the Judge to change his mind, that he has made an error of law and that his failure to discontinue the criminal proceedings by one means or another is accordingly flawed.

    This is a remarkable proposition. Disputed questions of fact and law which arise in the course of a criminal prosecution are for the relevant criminal court to determine. That is the function of the trial in the Crown Court and any appeal to the Court of Appeal. Inevitably, from time to time, the prosecutor may take a view of the law which is not subsequently upheld. If he has acted upon competent and responsible advice, this is not a ground for criticising him. Still less should a ruling adverse to the prosecution provide the defence with an opportunity to by-pass the criminal process or escape, otherwise than by appeal, other decisions of the criminal court.

    The defendants' case relies upon the provisions of the Human Rights Act 1998. This Act did not receive its Royal Assent until 9 November 1998. As regards existing law, it provisions do not come into force until a day or days to be appointed by the Secretary of State under s.22(2). No appointment has yet been made although the Government have indicated their intention to bring the Act fully into force in October 2000. The Bill was preceded by a White Paper published in October 1997 and was introduced in November 1997. As will be apparent it was the subject of prolonged Parliamentary proceedings before it was finally passed by both Houses. Independently of the Human Rights Act, the defendants were and remain able to rely upon established principles of construction in relation to ascertaining the correct effect to be given to s.16A. Thus they can, and have, relied upon cases such as Berry, Edwards and Hunt. They can pray in aid what was said by Lord Woolf in Att-Gen of Hong Kong v Lee Kwong-kut [1993] A.C. 951 and by Lord Hope in Ex parte Launder [1997] 1 W.L.R. 839. They can use construction arguments based upon a presumption of consistency with international obligations. (Ex parte Brind [1991] 1 A.C. 696). In your Lordships' House, Lord Lester QC for the defendants accepted that for the purpose of showing a need to resort to judicial review proceedings as opposed to relying upon the remedies open to them in the Crown Court and in the Court of Appeal (Criminal Division), he had to rely upon some additional legal consideration; he sought to extract that additional consideration from s.22(4) of the Human Rights Act.

    In order to put the present judicial review proceedings in context in relation to the Human Rights Act, it is necessary to give some more dates. The offences were alleged to have been committed in May 1997. By early August all three defendants had been arrested and charged. On 13 August 1997 the Director gave his consent to the institution of proceedings against Kebeline and Boukemiche under s.16A and they were committed for trial the following day. For Souidi the corresponding dates were 3 and 16 October 1997. The original trial date was 9 March 1998. There then was a five day hearing of a defence application for a stay on the ground of abuse of process, which was refused and the trial date was re-fixed for October 1998. The trial, interrupted by many applications and submissions, extended between the first half of October and the middle of December when it was aborted. From this it will be appreciated that the Director's consent to institute proceedings was given before any Bill had even been introduced and that by the time that the Act received the Royal Assent the trial had been proceeding for some time and the defendants were in the charge of the jury.

The Divisional Court:

    Full judgments were delivered by both Lord Bingham of Cornhill LCJ and Laws LJ. Sullivan J agreed with both judgments. The Divisional Court dismissed the case based on legitimate expectation. They were right to do so and there is no need to say anything more about it. They rejected the argument of the Director that s.29(3) of the Supreme Court Act 1981 precluded resort to judicial review proceedings in matters relating to trial on indictment in the Crown Court. They further held that there were no discretionary grounds for refusing relief.

    Lord Bingham considered the position of the Director and held that he was amenable to judicial review. He had relied upon the advice which he had been given by Mr Singh. If that advice was wrong, the Director should be told so and, at the least, be given an opportunity to think again, taking into account what would be the consequences which would flow on the correct view of the law from the continuation of the prosecution. One such consequence was, he said, that when the Act had been brought fully into force the defendants would be entitled to rely upon s.7(1)(b) and s.22(4) and the defendants' convictions "would in all probability be quashed, at some not inconsiderable cost to the public purse and no obvious advantage to the public weal": [1999] 3 W.L.R. 175, 187.

    He held that s.16A was inconsistent with Article 6(2). (The other case before the Divisional Court concerned s.16B which he also held to be incompatible.) He said, at p. 190:

    "A defendant who chooses not to give or call evidence may be convicted by virtue of presumptions against him and on reasonable suspicion falling short of proof.

    .......

    It seems to me that on their face both sections undermine, in a blatant and obvious way, the presumption of innocence

    ......

    Under s.16A a defendant could be convicted even if the jury entertained a reasonable doubt ........ whether he had the items for a terrorist purpose."

    Lord Bingham clearly seems to have been of the view that the Crown's submission on compatibility was not even arguable and this no doubt coloured his decision as well as his choice of language. He however added, at p. 192:

    "I think it undesirable to express any opinion, unauthoritatively, on whether, if s.3 of the Act of 1998 were in force, it would be possible to read and give effect to s.16A and s.16B in a way that is compatible with Convention rights."

    Laws LJ rejected the argument of the Director on s.29(3) on the ground that it only applied to orders made by the Crown Court itself; there was a residual discretion to discourage satellite litigation but he did not find it persuasive on the facts of the present case. As to the review of the Director's decision not to end the prosecution, he, like Lord Bingham, attached importance to s.22(4) of the Human Rights Act and the provisions which would at some future date come into force. These provisions and their effect were circumstances which, Laws LJ said, the Director was under an obligation to consider:

    "That being so, the Director was bound to consider whether ss.16A and 16B are, without the aid of s.3 of the Act of 1998, compatible with Article 6(2). But that is a question of law. In fact, of course, the Director indeed considered the question; he obtained the opinion of distinguished counsel in the field, Mr Rabinder Singh. ..... Now, if a public decision-maker is obliged to arrive at a conclusion upon a question of law in reaching a decision as to how to exercise the power given him and arrives at an erroneous conclusion, his decision will be vitiated on the ordinary ground of illegality.": pp. 197-198.

    Laws LJ accordingly proceeded to determine the question whether s.16A was incompatible with Article 6(2). He agreed with Lord Bingham that it clearly was. "The Act requires the defendant to disprove the offence's principal element." p. 201 He distinguished Salabiaku v. France (1988) 13 E.H.R.R. 379 , on the basis that the circumstances were irrelevant; the statutory provision should be looked at on its face and was bound to involve the obligation of the defendant to prove lack of terrorist intent. Like Lord Bingham, he declined to express any view upon whether s.3 of the Act of 1998 would, when it came into force, enable s.16A to be reconciled with Article 6(2).

    The reasoning of the Divisional Court contains a number of steps. They first reject the argument that under s.29(3) and general principles of judicial review, the remedy was not available, or not appropriate, to challenge the failure of the Director to abandon the prosecution. Secondly, they held that it was necessary that the Director should have formed the correct view in law of the compatibility of s.16A with Article 6(2). Thirdly, they held the opinion of Mr Rabinder Singh was clearly wrong; s.16A was plainly incompatible. Accordingly the Director's decision to continue with the prosecution could not stand.

    My Lords, I do not accept the first and second steps in this reasoning. The second step is, on analysis, inconsistent with the structure of the defendants' case in your Lordships' House. As to the third step, I do not accept that the question is as clear as the Divisional Court thought in the light of some of the decisions of the Court and the Commission to which we have been referred. Surprising though it may seem to those trained in the Common Law and the English traditions of statutory construction, there is clearly room for some doubt as to the outcome were the defendants to seek to challenge their convictions in Strasbourg. There is room for more than one view. Insofar as the reasoning and decision of the Divisional Court seems to have been fed by the view that the Director had got the law "blatantly" wrong, I will have to comment shortly on this aspect.

    The Divisional Court also seems to have been influenced by the view that s.19 of the Act of 1989 concerning consent to the institution of proceedings somehow altered the role of the Director in the conduct of those proceedings at the trial in the Crown Court. However, this error was not essential to their reasoning and s.19 certainly underlined the importance of not abusing prosecutions of this kind. But it must be appreciated that, if their reasoning is correct in the present case, the same reasoning would be applicable in respect of any prosecution conducted under the control of the Director or Attorney-General. The implications of their reasoning are very far-reaching.

The Availability of Judicial Review:

    A number of well established principles are relevant. One involves the relationship between criminal law and procedure and judicial review. Another is the refusal of judicial review where other legal remedies are available. The existence of these principles undoubtedly underlie s.29(3) of the Supreme Court Act 1981. But, even if s.29(3) does not itself preclude the application for judicial review, it will still be necessary to consider whether one of those principles does not do so.

    S.29 defines the jurisdiction and powers of the High Court. S.29(3) provides:

    "In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."

    This is a subject-matter provision. It applies the criterion whether the application for judicial review is "in relation to the jurisdiction of the Crown Court other than its jurisdiction in matters relating to trial on indictment." Guidance on the correct understanding of this provision has been given in a number of cases, particularly by Lord Browne-Wilkinson R. v. Manchester Crown Court, Ex parte Director of Public Prosecution [1993] 1 W.L.R. 1524 at 1530:

    "In my judgment, the case by case method of elucidating the meaning of s.29(3) has now gone far enough to make it possible to detect a further 'helpful pointer'. ...... It may therefore be a helpful further pointer to the true construction of the section to ask the question: 'Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?' If the answer is 'Yes', then to permit the decision to be challenged by judicial review may lead to delay in the trial: the matter is therefore probably excluded from review by the section. If the answer is 'No', the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore it may well not be excluded by the section."

    So far as their subject matter is concerned, the issues presently raised fell squarely within Lord Browne-Wilkinson's formulation. The validity of the Director's consent to the institution of the proceedings under s.19 was a matter which could have been raised in the Crown Court and, after conviction, in the Court of Appeal. (See the authorities cited earlier.) The question of abuse of process had, in the present case, the same character, as did any question of the construction or effect of s.16A and the question of burden of proof. The whole purpose of the arguments raised by the defendants in the Crown Court and in the Divisional Court was to bring about the delay or abandonment of the pending trial of the indictment. On the subject-matter test the application was precluded by s.29(3).

    The Divisional Court avoided this conclusion by saying that it was the Director's decision which it was sought to review not that of the Crown Court Judge. My Lords, this reasoning places a gloss on the subsection. If the substance of what it is sought to review is the answer to some issue between the prosecution and defence arising during a trial on indictment, that issue may not be made the subject of judicial review proceedings. The issue is within the jurisdiction of the Crown Court judge and (subject to appeal) it is for him to decide it. The argument is that the issue will also affect the assessment of the Director whether to continue the proceedings (and would have affected his decision whether to institute or give his consent to the institution of the proceedings in the first place). Obviously if the Director is acting in bad faith or irresponsibly (which is not alleged in the present case), a cavalier attitude to defects in the criminal proceedings might give rise to scope for such an argument. But all that can be said here is that, having taken competent independent advice upon an issue raised in the course of the trial in the Crown Court, the Director has advanced submissions with which both the Crown Court Judge and the Divisional Court have disagreed. This is not infrequently the fate of litigants. It does not provide a basis for reviewing the decision of the litigator when one is precluded from reviewing the decision of the court. Suppose that the Crown Court Judge had accepted the submission of the prosecution on compatibility: would it be suggested that the defendants could go to the Divisional Court on the basis that the Director had taken a wrong view of the law and so obtain a reversal of the judge's decision? In my judgment, it is not correct either as a matter of the construction of s.29(3) or as a matter of principle to use the device of purporting to review the conduct of the Director to obtain the re-litigation in the Divisional Court of an issue in the criminal trial.

    A possible escape from this conclusion is to refine down the issue concerned and say that it was not properly an issue which arose from the indictment, notwithstanding that both parties argued it before the Crown Court Judge and he gave his ruling upon it. I have some sympathy with this approach. Both the Court and the Director were bound by the existing state of the law. As the Divisional Court recognised, the prosecution must present the case upon the basis of the existing law and the judge must direct the jury in the terms of the law as it is. What would be the effect of the Human Rights Act when at some later date it came fully into force was irrelevant. Further, even then declaring that a statute was incompatible would not be within the jurisdiction of the Crown Court judge nor would any incompatibility affect the validity of the statute. (ss.3 and 4 of the Act of 1998) Indeed, I am at a loss to understand why the Judge allowed himself to be drawn into listening to argument or into ruling upon incompatibility once the construction argument had been abandoned by the defendants: he should have declined to entertain any argument on incompatibility.

    However, this was not the way that the defendants put it: they said that incompatibility affected the validity of the Director's consent under s.19 and whether the continuation of the trial was an abuse of process. It seems that this was also the view of Laws LJ: he said that the Director was obliged to consider compatibility and come to the right conclusion in law.

    In my judgment the first step in the Divisional Court's reasoning cannot be supported. They should have held s.29(3) to be applicable, either expressly or inferentially. They should have held that judicial review was not available and that the defendants should exercise the remedies open to them within the criminal justice system. The fact that that would lead to the law of the land being applied supports that conclusion and is no reason for finding a way in which to interfere obliquely with the trial of the defendants on this indictment in accordance with the Act of 1989.

The Human Rights Act:

    Lord Lester made s.22(4) the corner-stone of his argument before your Lordships. It is important to understand why he did so. His reason partly recognises the force of the objection in principle to the grant of judicial review in this case. (The same recognition can be observed in the judgments of Lord Bingham and Laws LJ.) He accepts that the trial of the defendants will have to reflect the provisions of s.16A and that the same applies to any appeal heard before the date upon which the Human Rights Act comes fully into force. But he submits that the situation will be different once that date has passed. Courts will be required to apply s.3(1) and do their best to read and give effect to s.16A in a way which is compatible with the defendants Convention rights. This, he submits would entitle the defendants to invoke s.22(4) and s.7(1)(b) and obtain the quashing of their convictions on the ground that the Director and Crown Court had acted in a way made unlawful by s.6(1).

    This part of Lord Lester's reasoning is radically different from that of the Divisional Court. The Divisional Court founded upon the incompatibility of s.16A and Article 6(2) and declined to express any view upon the s.3(1) point. Lord Lester recognised that this was not enough for him; irremediable incompatibility would not assist him. Implicitly, he was rightly recognising that he could not support the reasoning of the Divisional Court as being adequate to justify their conclusion.

    The scheme of the Human Rights Act is that no decision of the courts can invalidate an Act of Parliament. Under s.4(2) a court (being one of those specified in s.4(5)) may, if satisfied that a provision of an Act of Parliament is incompatible with a Convention right, make a "declaration of that incompatibility." But, by s.4(6), such a declaration "(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made." S.3(2)(b) contains a similar reservation of validity. Thus, incompatibility does not found any right under the Act. The procedure to be followed after a declaration of invalidity is laid down in ss.10 and 20 of the Act and the second Schedule. Whether the incompatible legislation should be amended so as to confer the relevant Convention right is a matter for the minister and Parliament. Unless and until such an amendment is made, the existing law remains in force notwithstanding the incompatibility and things done in accordance with that law remain lawful. (See also s.6(6).) Whether any amendment had retrospective effect would also depend upon the terms of the amendment (Schedule 2 paragraph 1).

    Similarly s.6(1) and (2) which govern the position of public authorities, which include courts, contain reservations for acting in accordance with legislation which, ex hypothesi, cannot be reconciled with the Convention. This creates difficulties for Lord Lester's argument based on s.22(4). S.22(4), with effect from 9 November 1998, provides:

    "Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that subsection."

This therefore refers one back to s.7(1)(b) which provides:

    "A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may .... rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."

So his submission becomes dependent on s.6. The only element of retrospectivity which s.22(4) introduces is to allow earlier unlawful actions to be relied upon.

 
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