Case details

Belhaj and another (Appellants) v Director of Public Prosecutions and another (Respondent)

Case ID: UKSC 2018/0011

Case summary

Issue

Whether judicial review of a decision not to prosecute is a proceeding "in a criminal cause or matter" for the purposes of s.6 of the Justice and Security Act 2013 ("JSA").

Facts

The appellants' case is that they were unlawfully "rendered" from Thailand to Libya in March 2004. In January 2012 a Police investigation began into complaints of ill-treatment of detainees including the appellants. Following that investigation consideration was given by the Crown Prosecution Service ("CPS") as to whether there should be a prosecution inter alia for misconduct in public office associated with the alleged rendition of the appellants.

On 9th June 2016 the CPS informed the appellants that a decision had been taken that there would be no prosecution as there was insufficient evidence for there to be a realistic prospect of conviction. That decision was based on advice from a Queen’s Counsel and a Review Note by the Head of the Special Crime and counter-Terrorism Division at the CPS. The appellants requested a review under the CPS's Victim's Right to Review scheme. That review was conducted by the Director of Legal Services at the CPS. He produced a VRR decision and on 5th August 2016, he wrote to the appellants to inform them that he agreed with the original decision and there would be no charges.

The appellants allege that the decision not to prosecute was unlawful and in particular that there was sufficient evidence for there to be a realistic prospect of conviction against the suspect. The DPP in defending the claim wishes to rely upon the Advice, the Review Note and the VRR decision. However, because of national security concerns in relation to the content of those three documents the Secretary of State for Foreign and Commonwealth Affairs ["SSFCA"] has made an application, in accordance with s.6 of the JSA, for a declaration for there to be closed material proceedings in which those three documents are considered.

The appellants' case is that there is no jurisdiction for closed material proceedings under the JSA as judicial review of a decision not to prosecute is a criminal cause or matter. The DPP and SSFCA's case is that the claim is not a criminal cause or matter for the purposes of the JSA. On 1st December 2017 the Divisional Court handed down a judgment on the preliminary issue of jurisdiction and concluded that an application for judicial review of a decision not to prosecute was not a criminal cause or matter for the purposes of the JSA.

Judgment appealed

[2017] EWHC 3056 (Admin)

Parties

Appellants
  1. Abdel Hakim Belhaj
  2. Fatima Boudchar
Respondents
  1. Secretary of State for Foreign and Commonwealth Affairs
  2. Director of Public Prosecutions

Appeal

Justices

Lady Hale, Lord Mance, Lord Wilson, Lord Sumption, Lord Lloyd-Jones

Hearing start date

22 Mar 2018

Hearing finish date

22 Mar 2018

Watch hearing
22 Mar 2018 Morning session Afternoon session