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|Judgments - Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others (On Appeal From a Divisional Court of The Queens Bench Division)
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Cooke of Thorndon
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
DIRECTOR OF PUBLIC PROSECUTIONS
EX PARTE KEBELINE AND OTHER
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEENS BENCH DIVISION)
ON 28 OCTOBER 1999
LORD SLYNN OF HADLEY
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Steyn. The opinion which I intended to write would have been largely repetitious of the views which he expresses. Accordingly and despite the fact that we are differing from forcefully stated conclusions of the Divisional Court I limit myself to saying that for the reasons which Lord Steyn gives I too would allow the appeal.
In the Divisional Court the Lord Chief Justice observed that this case raises important issues regarding the impact of the Human Rights Act 1998 on the exercise of the discretion of the Director of Public Prosecutions during the interim period between the enactment of the Act of 1998 and the bringing into force of its main provisions; and about the role and jurisdiction of the court in reviewing that exercise of discretion:  3 W.L.R. 175. The Divisional Court held that the DPP had acted unlawfully and granted a declaration to that effect. The DPP now appeals to the House of Lords.
In 1997 officers of the anti-terrorist squad arrested Mr Kebeline, Mr Boukemiche and Mr Souidi. All three were Algerian nationals. They were charged with offences under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989. Section 16A of the Act of 1989, so far as it is relevant, provides:
1. A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism to which this section applies.
3. It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above.
4. Where a person is charged with an offence under this section and it is proved that at the time of the alleged offence -
(a) he and that article were both present in any premises; or
(b) the article was in premises of which he was the occupier or which he habitually used otherwise than as a member of the public, the court may accept the fact proved as sufficient evidence of his possessing that article at that time unless it is further proved that he did not at that time know of its presence in the premises in question, or, if he did know, that he had no control over it.
Conviction on indictment carries a maximum penalty of 10 years imprisonment plus a fine in an unlimited sum. The particulars of offence against the three men were that they
The charges arose from items found during police searches at various addresses in London. The case against the three men was that as members of the Armed Islamic Group they had been engaged in sending equipment to Algeria for use in the civil war in Algeria.
Section 19(1)(aa) of the Act of 1989 requires the consent of the Director of Public Prosecutions for proceedings under the Act of 1989. In the Divisional Court the Lord Chief Justice explained that section 16A is directed not to unlawful possession of explosives or firearms, which may be the subject of prosecution without resort to section 16A but to the possession of articles and items of information innocent in themselves but capable of forming part of the paraphernalia or operational intelligence of the terrorist. The purpose of requiring the DPP's consent to prosecutions under section 16A is, to ensure that the decision to prosecute is taken at a very senior level in the CPS, following a careful consideration of all relevant matters including the public interest, and to protect defendants from the risk of oppressive prosecutions: see  3 W.L.R. 175, at 182H-183A. In the present case the DPP gave his consent to the criminal proceedings under the Act of 1989.
The trial commenced on 9 March 1998 but was adjourned on the grounds of late service of evidence by the Crown Prosecution Service. The new trial started on 12 October 1998. Counsel for the three defendants applied for a stay on the ground that it proved impossible to obtain evidence from Algeria. The judge dismissed the application. On 27 October 1998 the jury was empanelled. At the close of the case for the prosecution the defence sought a ruling from the judge that section 16A of the Act of 1989 reversed the legal burden of proof and was therefore in breach of Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6(1) of the Convention contains the general right to a fair trial. Article 6(2) provides: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." It must be read with Article 13 which requires an effective remedy in national courts for a breach of the rights defined in the Convention. The defence sought this ruling for two reasons. First, in order to persuade the DPP to reconsider his consent. Secondly, as an aid to a renewal of the abuse of process application made at the outset of the trial. On 20 November 1998 the judge ruled that section 16A was in conflict with Article 6(2). He gave the reasons for his decision on 23 November 1998. The solicitors for the defendants then wrote to the DPP requesting him to reconsider his consent to the proceedings. The DPP's view was that section 16A was not inconsistent with article 6(2) of the Convention. But he sought the advice of Mr Rabinder Singh, a barrister with extensive experience in this field. Mr Singh supported the DPP's view. On 26 November 1998 Mr Singh appeared on behalf of the DPP before the judge and attempted to persuade the judge to reverse his earlier ruling. Mr Singh made clear that the DPP did not agree with the judge's ruling. After hearing argument the judge adhered to his earlier ruling. The DPP then sought a further short adjournment after which the DPP indicated that it was his intention to proceed with the prosecution. The defence then placed another argument on abuse of process before the judge but the judge rejected it. On 14 December 1998 the judge discharged the jury because the prosecution had not fully complied with its disclosure obligations and prosecuting counsel required a lengthy adjournment to complete this task. A new trial date had to be fixed.
The application for judicial review
On 18 December 1998 the three defendants applied for leave to move for judicial review. Form 86A described the decision in respect of which relief was sought as being "the continuing decision of the Director of Public Prosecutions ("the DPP") to give his consent pursuant to section 19(1) (aa) of the Prevention of Terrorism (Temporary Provisions) Act 1989 ("the PTA") for the prosecution of the applicants for an offence contrary to section 16A of the PTA". Form 86A sought a declaration that "the decision of the DPP to give his continued consent to the prosecution of the applicants involves an error of law, namely an erroneous conclusion that the prosecution is compatible with Article 6(2) of the European Convention on Human Rights."
On 26 January 1999 Turner J. granted leave to move for judicial review to the three applicants as well as to a fourth applicant (Mr Rechachi).
The Proceedings in the Divisional Court
The importance of the issues led to the matter being heard in March this year by Lord Bingham of Cornhill, C.J., sitting with Laws L.J. and Sullivan J., judges with enormous experience in human rights law and public law issues. The Divisional Court granted a declaration that the DPP's decision to proceed with the prosecution was unlawful:  3 W.L.R. 175. The Lord Chief Justice took the view that section 16A of the Act of 1989 undermines in a blatant and obvious way the presumption of innocence: at 190F. He observed that: "Under section 16A a defendant could be convicted even if the jury entertained a reasonable doubt whether he knew that the items were in his premises and whether he had the items for a terrorist purpose": at 190H: The Lord Chief Justice held that section 29(3) of the Supreme Court 1981 did not preclude the granting of relief. The Lord Chief Justice accepted that it is not for the DPP to disapply legislative provisions which Parliament has enacted. But relying on the judgment of Lord Hope of Craighead (given with the agreement the other members of the House) in Reg. v. Secretary of State for the Home Department, Ex parte Launder  1 W.L.R. 839 at 867 the Lord Chief Justice held that it was appropriate for the Court to review the soundness of the legal advice on which the DPP acted. The Lord Chief Justice explained:
Laws L.J. gave a separate judgment. Except perhaps to the extent that Laws L.J. went further than the Lord Chief Justice by observing that the DPP was in law obliged to consider whether section 16A of the Act of 1989 was compatible with Article 6(2) of the Convention I have not discerned any material difference between the reasoning in the two judgements. Sullivan J. agreed with both judgments.
The Main Issues
Since the judgment was delivered in the Divisional Court the criminal proceedings against Mr Rechachi have been abandoned. The case against him had required an examination of section 16B of the Act of 1989. The appeals before the House are now only by Mr Kebeline, Mr Boukemiche and Mr Souidi. And the focus is only on section 16A of the Act of 1989. The principal issues debated before the House were as follows:
1) whether the decision of the Divisional Court failed to recognise the force and effect of Parliamentary sovereignty in the context of unambiguous primary legislation contained in section 16A of the Act of 1989;
2) whether, pending the coming into force of its central provisions, the Human Rights Act 1998 gives rise to a legitimate expectation that the DPP will exercise his discretion to consent to a prosecution in accordance with Article 6(2) of the Convention.
3) whether section 29(3) of the Supreme Court Act 1981 or a common law principle preclude the granting of relief in judicial review proceedings in respect of the DPP's consent to the prosecutions;
4) whether as a matter of interpretation subsections (1) and (3) of section 16A of the Act of 1989 create a reverse legal burden;
5) if question (4) is answered in the affirmative, is the reverse legal burden incompatible with article 6(2) of the Convention?
Issue 1: Parliamentary Sovereignty
My Lords, counsel for the DPP emphasised the principal features of the Human Rights Act 1998, which received the Royal Assent on 9 November 1998. The Act of 1998 will, when its substantive provisions come into force on 2 October 2000, give effect to Convention rights in domestic law. Section 3(1) enacts a strong interpretative obligation. It provides:
Section 4 empowers specific courts to make a declaration of incompatibility where such a court determines, notwithstanding the duty under section 3(1), that the statutory provision is not compatible with a Convention right. Section 4(5) lists the courts which have this power: they do not include the Crown Court. Section 4(6)(a) adds that a declaration of incompatibility
Section 6(1) states that
Section 6(2) adds:
"Subsection (1) does not apply to an act if
Section 7(1) identifies the procedural means by which section 6 may be enforced:
a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
b) rely on the Convention right or rights concerned in any legal proceedings,
Section 22(2) states that specified provisions of the Act and section 22 itself come into force on the passing of the 1998 Act. Section 22(3) states that the other provisions of the Act come into force on such day as the Secretary of State may by order appoint.
Section 22(4) states:
Section 22(4) is itself already in force as part of section 22. But section 7, to which it relates, is not yet in force. The Government has announced that it plans to bring the central provisions of the Act of 1989 into force on 2 October 2000.
It is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of Parliamentary sovereignty. In a case of incompatibility, which cannot be avoided by interpretation under section 3(1), the courts may not disapply the legislation. The court may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action: see section 10.
The Divisional Court was, of course, fully aware of the scheme of the Act of 1998 and of the fact that its main provisions are still not in force. Indeed the Lord Chief Justice expressly accepted in his judgment, at p. 186, the following part of the argument advanced on behalf of the DPP:
Nevertheless, the Attorney-General and Mr Pannick strenuously argued before the House that the judgment of the Divisional Court is in conflict with the principle of parliamentary sovereignty in the context of unambiguous primary legislation, viz section 16A. They submitted that the effect of the judgment was to invite the DPP to disapply primary legislation. In my view this argument is mistaken and fails to do justice to the reasoning of the Divisional Court. The Lord Chief Justice pointed out that in the present case the Director wished to know where he stood on the issue of compatibility of the legislation. The DPP sought and relied on legal advice on that issue. The Lord Chief Justice said that if the advice was wrong, the DPP should have the opportunity to reconsider the confirmation of his advice on a sound legal basis. As the Lord Chief Justice observed this approach is consistent with the judgment of Lord Hope of Craighead in Reg. v. Secretary of State for the Home Department, Ex parte Launder  1 W.L.R. 839, at 867. In Launder Lord Hope observed: "If the applicant is to have an effective remedy against a decision [on extradition] which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument." I respectfully agree. There was no infringement of the principle of Parliamentary sovereignty. I would reject this argument of the DPP.
Before I leave this part of the case it is necessary to refer to a sub-issue which arose on this appeal. The Lord Chief Justice adverted to the possibility of the trial resulting in convictions and appeals subsequently being lodged. He then observed [at 187C]:
On appeal to the House, but not in the Divisional Court, Mr Pannick argued that section 22(4), read with section 7(1)(b), is apt only to extend to the trial. It was an argument of some technicality. The language of the statute does not compel its adoption and a construction which treats the trial and the appeal as parts of one process is more in keeping with the purpose of the Convention and the Act of 1998. It is the sensible and just construction. I would reject the argument advanced on behalf of the DPP on this point.
Issue 2: Legitimate Expectations
Mr Lords, in their Case the Respondents submitted that in the light of section 22(4) read in the context of the Act of 1989, the Respondents have a legitimate expectation that pending the coming into force of the central provisions of the Act of 1998, the DPP would not give his consent to a prosecution which would violate Article 6. In cogently expressed reasoning the Divisional Court rejected this submission. In a carefully structured oral argument Lord Lester of Herne Hill Q.C., who appeared for the Respondents, did not press this argument. There is a clear statutory intent to postpone the coming into effect of central provisions of the Act. A legitimate expectation, which treats inoperative statutory provisions as having immediate effect, is contradicted by the language of the statute. This argument must be rejected.
Issue 3: Section 29(3)
Section 29(3) of the Supreme Court Act 1981 provides:
The DPP contends that section 29(3) of the Supreme Court Act 1981 is applicable and that it deprives the Divisional Court of power to entertain the present applications for judicial review. The purpose of section 29(3) was explained by Lord Bridge of Harwich in In re Smalley  A.C. 622, at 642-643, as follows:
This explanation was approved by Lord Slynn of Hadley (speaking for a unanimous House) in In re Ashton  1 A.C. 9,17. Mr Pannick argues that judicial review of a decision to prosecute is as likely to cause delay to criminal proceedings as judicial review of a decision of the Crown Court. Moreover, he says the decision to prosecute is inextricably linked with the trial itself, the complaint being that the judge will direct the jury in terms about which the Respondents complain. All this is true. But section 29(3) circumscribes the jurisdiction of the High Court. And the plain language of section 29(3) is only apt to exclude the High Court's jurisdiction in respect of orders directed to and affecting the Crown Court's exercise of its jurisdiction in matters relating to trial on indictment. On this point of interpretation I would accept the reasoning of the Lord Chief Justice and of Laws L.J. But Mr Pannick further submitted, that if section 29(3) is not applicable, the matter is covered by a common law principle which limits the High Court's exercise of discretion to entertain judicial review proceedings of a decision to prosecute. He acknowledged that this principle leaves untouched the jurisdiction of the High Court. But he contended that there is a common law principle that, absent dishonesty or mala fides or some other wholly exceptional circumstance, the High Court will as a matter of discretion not entertain judicial review proceedings of a decision to prosecute. There are some dicta to this effect: Reg. v. Panel on Takeovers and Mergers, Ex parte Fayed  B.C.C. 524, at p. 536; Reg. v. Chief Constable of Kent, Ex parte L  1 All E.R. 756, 770-771 and Elguzouli-Daf v. Commissioner of Police of the Metropolis  Q.B. 335.
For my part I would not wish to base my decision on these observations. In the opposite case, namely a decision not to prosecute, judicial review is available: see Reg. v. Director of Public Prosecutions, Ex parte C.  1 Cr. App. R. 136. That is, however, a wholly different situation because in such a case there is no other remedy. Counsel for the Respondents also relied on Reg. v. Bedwellty Justices, Ex parte Williams  A.C. 225 where the House of Lords quashed a Magistrates Court's decision to commit a defendant on inadmissible evidence. A Magistrates' Court is, however, an inferior court. The present case involves a decision by the DPP in respect of a trial pending in the Crown Court which is a superior court. The decision of the House in Williams has no bearing on the problem before the House.
The starting point must be the analogical force of the statute which excludes the High Court's power to review decisions of the Crown Court. Thus section 29(3) would prohibit an application for judicial review of the decision of the Crown Court judge refusing to hold a prosecution to be an abuse of process by reason of an alleged breach of the Convention. It would be curious if the same issue could be raised in the Divisional Court by means of a challenge to the decision of the prosecutor to proceed with the prosecutions. The policy underlying the statute would be severely undermined if it could be outflanked by framing the case as a challenge to the prosecutor's decision to enforce the law rather than as a challenge to the decision of the Crown Court judge to apply the law. It is also noteworthy that it is rightly conceded that once the Act of 1998 is fully in force it will not be possible to apply for judicial review on the ground that a decision to prosecute is in breach of a Convention right. The only available remedies will be in the trial process or on appeal. It would be strange if in the interim period between the enactment of the Act of 1998 and the coming into force of its central provisions defendants in criminal trials were entitled to an additional remedy by way of judicial review. Given that reverse legal burden provisions appear in other legislation, the entertaining of such challenges outside the trial and appeal process might seriously disrupt the criminal justice system. Moreover, when section 6 of the Convention becomes part of our law, it will be the prism through which other aspects of our criminal law may have to be re-examined. If the Divisional Court's present ruling is correct, it will be possible in other cases, which do not involve reverse legal burden provisions, to challenge decisions to prosecute in judicial review proceedings. The potential for undermining the proper and fair management of our criminal justice system may be considerable.
Counsel for the Respondents accepted that there is a common law principle independent of section 29(3) which provides a strong presumption against the Divisional Court entertaining a judicial review application where the complaint can be raised within the criminal trial and appeal process. Counsel persuaded the Divisional Court that section 16A undermines the presumption of innocence in a blatant and obvious way. And that was also his submission before the House. He further submitted that the respondents have no effective remedy in the criminal trial or on appeal. Counsel for the DPP has persuaded me that this complaint is overstated. In the first place counsel for the Respondents are free to submit when the trial against the Respondents is continued that section 16A(1) and (3) should not be interpreted as provisions reversing the legal burden, with the risk of a defendant being convicted even if the jury is in doubt about terrorist intent. This argument involves treating the word "prove" in section 16A (3) as placing only an evidential burden on a defendant. The basis of such an argument was explained by Glanville Williams, The Logic of "Exceptions,"  C.L.J. 261 at 264-265. The thrust of the argument is that the real intent of such a provision is to impose on the defendant the burden of neutralising a prima facie presumption. That indeed is what counsel for the Respondents argued before the House. This is a respectable argument which is reinforced by the disfavour with which reverse legal burden provisions have been regarded by the Privy Council in Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951 and leading judgments in other countries: see, for example, Reg. v. Whyte (1988) 51 D.L.R. (4th) 481, at 493; R. v. Oakes (1986) 26 D.L.R. (4th) 200; State v. Mbatha  2 L.R.C. 208, at 218. If the trial judge rules against the Respondents on this issue, and they are convicted, they will be able to raise this issue on appeal. Moreover, if the Respondents are convicted, they might also be able to challenge the DPP's interpretation by inviting the Court of Appeal (Criminal Division) to interpret section 16A(1) and (3) compatibly with their Convention right under article 6(2). This assumes that the Act of 1989 will by then be in operation. Given that the trial will apparently be a long one this seems a realistic assumption. Secondly, if this is indeed as blatant and obvious a case as counsel for the Respondents contends, it may arguably be open to the Respondents to submit that the prosecution is an abuse of process inasmuch as it is so unfair and wrong that the court should not allow a prosecutor to proceed with it: Hui Chi-ming v. The Queen  1 A.C. 34, at 57; Attorney-General of Trinidad and Tobago v. Phillip  1 A.C. 396, at 417 C-D. I express no view on the likely outcome of any such arguments. But it is not right to say that the Respondents are entirely without remedy in the criminal process.