|Judgments - Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others (On Appeal From a Divisional Court of The Queens Bench Division)
Looking at the matter more broadly there is also an implausibility at the heart of the Respondents' case. They seek judicial review on the ground that the DPP's consent involves an error of law, namely that the prosecution is compatible with article 6(2) of the Convention. But the DPP may sometimes not have a concluded view of any kind. But he may nonetheless be persuaded that, despite some uncertainty about the law, a prosecution is justified as being in the public interest. There could then be no question of reviewing his decision for error of law. So far as Laws L.J. held that the DPP is at this stage legally bound to form a view on the issue of compatibility I would respectfully disagree: at 197F and 198F. And, if he is not so bound, why should his decision to consent to a prosecution be amenable to judicial review if he arrives at a firm view? After all, such a matter ought not to depend on the degree of confidence in the legal position of the DPP or his counsel. Moreover, it would be odd to allow the possibility of judicial review of the DPP's decision to prosecute to depend on the error being blatant and obvious. That excludes the case where this threshold test is not met. It is difficult to see on what principle such a distinction rests. It gives the appearance of introducing into our public law categories of illegality.
My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstance, the decision of the DPP to consent to the prosecution of the Respondents is not amenable to judicial review. And I would further rule that the present case falls on the wrong side of that line. While the passing of the Human Rights Act 1998 marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts are concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal. The effect of the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings. Such satellite litigation should rarely be permitted in our criminal justice system. In my view the Divisional Court should have dismissed the Respondents' application.
Issues (4) and (5): Interpretation and Compatibility of Section 16A with Article 6(2)
Given the conclusion I have arrived at it would be wrong to express concluded views on issues (4) and (5). But as I have made clear I regard those issues as arguable. The effect is that those issues are undecided and entirely open at all levels in the criminal proceedings.
The Disposal of the Appeal
My Lords, I would allow the appeal and quash the orders of the Divisional Court.
LORD COOKE OF THORNDON
Having had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn, I am in general agreement with it and can confine my added observations to the following.
As the argument of this appeal developed, the main thrust of the submissions for the appellant appeared to change. In Mr. Pannick Q.C.'s reply the contention put in the forefront was based on the undesirability of satellite litigation attending cases to be tried on indictment. It was said that the present criminal proceedings should not be interfered with by way of judicial review: that the trial and, if necessary, appeal processes should provide adequate remedies for the defendants if their human rights are violated. A risk of imminent violation could no doubt be dealt with similarly at the trial or on appeal.
To that contention I am willing to accede, although other parts of the argument in support of the present appeal appear to me more questionable. There seems to be no sound reason why, in principle, a consent given by the Director of Public Prosecutions should not be open to judicial review - although the concept of a continuing consent may want something in accuracy - but, in a case where it is obvious that the Director wishes a charge to go to trial, I think that the courts should be very slow to allow review of a consent to be used as a device for resolving points which would otherwise be dealt with in the ordinary course of the criminal proceedings. As a general rule, proceedings on indictment should not be delayed by collateral challenges. But, as Lord Bingham of Cornhill C.J.  3 W.L.R. 175, 183-184 pointed out, there are cases where that cannot be avoided. The Lord Chief Justice cited Reg. v. Bedwellty Justices, Ex parte Williams  A.C 225, where a committal for trial in the Crown Court was quashed on judicial review. The relevant part of that decision of your Lordships' House was that the indictment process offered no way of curing the breach of the defendant's right to cross-examine witnesses before the examining justices. No equivalent feature is to be found in the present case.
In the present case I am the more ready to apply the general rule because I cannot help thinking that there is a degree of inconsistency in the Divisional Court's approach. They held that section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 is repugnant to article 6.2 of the European Convention on Human Rights, and that in acting on a contrary view the Director had proceeded unlawfully. They had regard to the circumstance that, when the Human Rights Act 1998 is brought into force, section 7(1)(b) will have retrospective effect by virtue of section 22(4). But they felt bound in interpreting section 16A of the Act of 1989 to adopt the natural and ordinary meaning rather than the new rule of interpretation laid down by section 3(1) of the Human Rights Act.
My Lords, I see great force in the Divisional Court's view that on the natural and ordinary interpretation there is repugnancy. To introduce concepts of reasonable limits, balance or flexibility, as to none of which article 6.2 says anything, may be seen as undermining or marginalising the philosophy embodied in the straightforward provision that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. On its face section 16A of the Act of 1989 enables a person to be found guilty of a very serious offence merely on reasonable grounds of suspicion. It may be highly inconvenient that this should not be permissible, an inconvenience brought out by the list of broadly comparable provisions to be given by my noble and learned friend Lord Hope of Craighead, but at best it is doubtful whether article 6.2 can be watered down to an extent that would leave section 16A unscathed. The judgment of the Privy Council delivered by Lord Woolf in Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951 strongly suggests that it cannot. One cannot exclude the possibility, however, that the European Court of Human Rights, whose jurisprudence in the field is not yet extensively developed, may be prepared to treat terrorism as a special subject or perhaps to found a reading down on "according to law".
But I am constrained to part company with the Divisional Court on their putting aside of section 3(1) of the Human Rights Act. In my respectful view, it is not altogether logical, nor is it necessary, to consider the likely impact of the other main provisions of that Act on United Kingdom law without taking into account also section 3(1), which is a key element in the Act.
When the whole Act comes into force, the new canon of interpretation will be that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. This is a strong adjuration. It seems distinctly possible that it may require section 16A of the Act of 1989 to be interpreted as imposing on the defendant an evidential, but not a persuasive (or ultimate), burden of proof. I agree that such is not the natural and ordinary meaning of section 16A(3). Yet for evidence that it is a possible meaning one could hardly ask for more than the opinion of Professor Glanville Williams in The Logic of "Exceptions"  C.L.J. 261, 265 that "unless the contrary is proved" can be taken, in relation to a defence, to mean "unless sufficient evidence is given to the contrary;" and that the statute may then be satisfied by "evidence that, if believed and on the most favourable view, could be taken by a reasonable jury to support the defence."
I must not conceal that in New Zealand the Glanville Williams approach was not allowed to prevail in R. v. Phillips  3 N.Z.L.R. 175. But, quite apart from the fact that the decision is of course not authoritative in England, section 6 of the New Zealand Bill of Rights Act 1990 is in terms different from section 3(1) of the Human Rights Act 1998. The United Kingdom subsection, read as a whole, conveys, I think, a rather more powerful message.
As this case has reached this House, there would appear to be something to be said for a resolution by your Lordships now of the question whether, when section 3(1) and the rest of the Human Rights Act is in force, it will be possible for provisions such as section 16A of the Act of 1989 to be read and given effect in a way which is compatible with the Convention rights. But the possibility of such a resolution had apparently not been foreseen by counsel; the argument on section 3(1) was by no means as full as is desirable if the effect of so major a new canon of interpretation is to be settled; and I accept that it would be premature to embark on the question. It should be left to be dealt with in this case, as far as may be found just or expedient, by the trial judge and on any subsequent appeals.
My only reservation is that, as I understood Mr.Pannick to suggest, the question should be treated as truly open to the trial judge on a renewed abuse of process application or otherwise, and thereafter, if necessary, in the Court of Appeal, Criminal Division, and your Lordships' House. That is to say, observations in this case or other cases should not be treated as at all fettering the trial judge or subsequent courts. Otherwise a catch-22 situation could arise in which, although the House allows this appeal on the ground that the defendants have their proper remedy in the course of the trial and appellate process, attempts to obtain any form of remedy or lightening of the defence onus are already destined to failure.
Subject to that caveat, I would allow the appeal.
LORD HOPE OF CRAIGHEAD
These proceedings have been brought to challenge by judicial review in the Divisional Court the decision of the Director of Public Prosecutions to consent to the institution of criminal proceedings against the respondents under section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 which was inserted by section 82 of the Criminal Justice and Public Order Act 1994.
When the relevant legislation was being considered in Parliament in 1994 the focus was on familiar problems associated with terrorism in Northern Ireland. Similar provisions had been in force in the Province since 1973. It was also being considered before the initiatives were taken by the present Government which led to the enactment on 9 November 1998 of the Human Rights Act 1998. The circumstances in which your Lordships are now being asked to consider the effect of the legislation require it to be subjected to a more exacting scrutiny. We are dealing in this case with allegations that the respondents, who are all Algerian nationals, were involved with terrorism in Algeria. The security situation in that country creates difficulties for the defence in obtaining evidence to rebut these allegations which would not arise if that evidence were being sought in this country or in Ireland. Furthermore, although the 1998 Act is not yet in force, the vigorous public debate which accompanied its passage through Parliament has already had a profound influence on thinking about issues of human rights. It is now plain that the incorporation of the European Convention on Human Rights into our domestic law will subject the entire legal system to a fundamental process of review and, where necessary, reform by the judiciary.
In Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951, 966 Lord Woolf referred to the general approach to the interpretations of constitutions and bills of rights indicated in previous decisions of the Board, which he said were equally applicable to the Hong Kong Bill of Rights Ordinance 1991. He mentioned Lord Wilberforce's observation in Minister of Home Affairs v. Fisher  A.C. 319, 328 that instruments of this nature call for a generous interpretation suitable to give to individuals the full measure of the fundamental rights and freedoms referred to, and Lord Diplock's comment in Attorney-General of The Gambia v. Momodou Jobe  A.C. 689, 700 that a generous and purposive construction is to be given to that part of a constitution which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled. The same approach will now have to be applied in this country when issues are raised under the 1998 Act about the compatibility of domestic legislation and of acts of public authorities with the fundamental rights and freedoms which are enshrined in the Convention.
The primary focus of attention in this case is upon the continuing decision of the Director. If the 1998 Act were in force, the appropriate remedy would be to raise at the trial or on appeal under section 7 of that Act the question whether, in terms of section 6(1) of the Act, he was acting or had acted in a way which was incompatible with a Convention right. That in turn would require section 16A of the 1989 Act as amended to be construed, in terms of section 3(1) of the 1998 Act, so far as it was possible to do so in a way which was compatible with Convention rights. But, as the legislation is not yet in force, we have not reached that stage. The procedures which are to be provided under section 7 are not yet available. So the issue as to compatibility was first raised at the trial in the context of an argument that there was an abuse of process. A ruling on the issue was sought from the trial judge. The Director decided to maintain his consent to the prosecutions on legal advice, after the trial judge had ruled that section 16A was incompatible with the presumption of innocence guaranteed by article 6(2) of the Convention. The trial was then adjourned on the grounds of late service of evidence by the Crown Prosecution Service, whereupon applications for judicial review of the Director's decision were made in the Divisional Court.
Among the detailed reasons which Lord Bingham C.J. gave for granting the applications was the following:  3 W.L.R. 175, 187F:
I respectfully agree with this observation and with the process of reasoning on which it was based. I also agree that a review of the soundness of the Director's decision would not conflict in any way with the principle of Parliamentary sovereignty. The Director was not being asked to treat section 16A as if it had never been enacted. What he was being asked to do was to reconsider, on a sound legal basis, his decision as to whether prosecutions under that section should be authorised. If the advice on which he relied was unsound, the respondents were entitled to an effective remedy against that decision as soon as this was practicable.
At first sight, the obvious way of achieving this once the trial had been adjourned was to apply for judicial review in the Divisional Court. I am not aware of any other process under English law by which a remedy could be given during the adjournment of a trial. But the fact that it has not been the practice to bring a consent to a prosecution under judicial review means that no example of such an application could be cited to us as a precedent. Furthermore, for all the reasons which my noble and learned friend Lord Steyn has given, there are strong grounds for the view that, in the absence of dishonesty, bad faith or some other exceptional circumstance, the Director's decisions to consent or not to consent to a prosecution are not amenable to judicial review in that court. To this must be added the fact that the process of judicial review could do no more than require the Director to reconsider his decision. It could not require him to change his view. It would fall short of providing a remedy which is as effective as that which could be provided by the trial judge during the trial process or on appeal.
With regret, therefore, I have come to the conclusion that the appeals must be allowed on this ground and that the applications must be dismissed.
Nevertheless I consider that the issues which have been raised in this appeal, and which were fully and ably argued on both sides, are so important to a consideration of the impact of article 6(2) of the Convention upon so many of the statutory provisions which are to be found in our criminal law that the opportunity ought be taken to set out and review the competing arguments on this issue. I have in mind the fact that, while the Human Rights Act 1998 will not come into force in the United Kingdom until 2 October 2000, the Scotland Act 1998 is now in force. The Scottish Parliament has already embarked upon its first legislative programme, and members of the Scottish Executive are already taking decisions in the exercise of their functions under the Act. Legislation by the Scottish Parliament will be outside its legislative competence if it is incompatible with any of the Convention rights: section 29(2)(d) of the Scotland Act 1998. Members of the Scottish Executive have no power to make any subordinate legislation or to do any other act if to do so would be incompatible with any of the Convention rights: section 57(2) of that Act.
The Divisional Court held that the provisions of section 16A of the 1989 Act as amended violated the presumption of innocence and that they were thus repugnant to article 6(2) of the Convention. The legislative techniques which these provisions have employed are however not unique to that Act. The implications of that decision do not stop there. It is likely that the compatibility with article 6(2) of a large number of other statutory provisions, both in United Kingdom legislation and in legislation applying only to Scotland, will be called into question as decisions are taken as to whether to prosecute, or to continue to prosecute. Under Scottish criminal procedure these questions can be brought under the review of the High Court of Justiciary and dealt with by providing an effective remedy in the course of the criminal process at any time. A prolonged period of uncertainty as to whether these provisions are enforceable is undesirable.
The Presumption of Innocence
Article 6(2) of the Convention contains this declaration:
As a statement of fundamental principle that declaration is wholly consistent with the common law of both England and Scotland. In the well-known words of Viscount Sankey L.C. in Woolmington v. director of Public Prosecutions  A.C. 462, 481:
In Slater v. H.M. Advocate, 1928 J.C. 94, 105 the High Court of Justiciary took the opportunity, in the first appeal to come before the Court under the Criminal Appeal (Scotland) Act 1926, to say:
The only exception to this rule which the common law has recognised, as Viscount Sankey noted, is in regard to the defence of insanity. The judges throughout the United Kingdom have resisted the temptation to extend that exception to the defence of automatism: Bratty v. Attorney-General for Northern Ireland 1991 A.C. 386; Ross v. H.M. Advocate, 1991 J.C. 210. In Hill v. Baxter  1 Q.B. 277, 285 Devlin J. said:
The reason for the shifting of the burden in the case of the defence of insanity is that, as Viscount Kilmuir L.C. explained in Bratty's case at p. 407, normally the presumption of mental capacity is sufficient to prove that the accused acted consciously and voluntarily. The presumption is one of sanity, not responsibility. Although the prosecution need go no further to prove that the accused has mental capacity, it must nevertheless discharge the legal burden of proving mens rea: see Ross v. H.M. Advocate, at p. 221. As the presumption of innocence continues to occupy such a fundamental place in the common law, the judges have ensured that all common law presumptions which form part of the law of evidence are subordinated to this principle. An example is the rule of evidence in Scots law that, if the accused is found in possession of recently stolen goods in criminative circumstances, he must displace the inference of guilt raised by these circumstances. These rules do not place a burden of proof on the accused which he has to discharge on a balance of probabilities. All the accused has to do is raise a reasonable doubt as to his guilt. That is not to say that these evidential rules are insignificant. In many cases they can have a vital bearing on the outcome of the trial, depending on how easy or how difficult it is for the accused to rebut the presumption. But the burden of proving his guilt beyond reasonable doubt remains with the prosecution throughout the trial. It has not been suggested in this case that these common law evidential presumptions are incompatible with the presumption of innocence.
The difficulty lies in the area of legislation by Parliament. As Viscount Sankey L.C. noted in Woolmington v. Director of Public Prosecutions, it has always been open to Parliament by way of a statutory exception to transfer the onus of proof as to some matter arising in a criminal case from the prosecution to the accused. Glanville Williams, The Proof of Guilt (3rd ed., 1963), p. 184 observed that Parliament regards the principle with indifference. That may be overstating the matter; but it is clear that until now, under the doctrine of sovereignty, the only check on Parliament's freedom to legislate in this area has been political. All that will now change with the coming into force of the Human Rights Act 1998. But the change will affect the past as well as the future. Unlike the constitutions of many of the countries within the Commonwealth which protect pre-existing legislation from challenge under their human rights provisions, the 1998 Act will apply to all leislation, whatever its date, in the past as well as in the future.
The first stage in any inquiry as to whether a statutory provision is vulnerable to challenge on the ground that it is incompatible with article 6(2) of the Convention is to identify the nature of the provision which is said to transfer the burden of proof from the prosecution to the accused. Various techniques have been adopted. Some provisions are more objectionable than others. The extent to which they encroach upon the presumption of innocence depends upon the legislative technique which has been used. The field can be narrowed considerably by means of this preliminary analysis.
It is necessary in the first place to distinguish between the shifting from the prosecution to the accused of what Glanville Williams at pp. 185-186 described as the "evidential burden", or the burden of introducing evidence in support of his case, on the one hand and the "persuasive burden", or the burden of persuading the jury as to his guilt or innocence, on the other. A "persuasive" burden of proof requires the accused to prove, on a balance of probabilities, a fact which is essential to the determination of his guilt or innocence. It reverses the burden of proof by removing it from the prosecution and transferring it to the accused. An "evidential" burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. But if it is put in issue, the burden of proof remains with the prosecution. The accused need only raise a reasonable doubt about his guilt.
Statutory presumptions which place an "evidential" burden on the accused, requiring the accused to do no more than raise a reasonable doubt on the matter with which they deal, do not breach the presumption of innocence. They are not incompatible with article 6(2) of the Convention. They take their place alongside the common law evidential presumptions which have been built up in the light of experience. They are a necessary part of preserving the balance of fairness between the accused and the prosecutor in matters of evidence. It is quite common in summary prosecutions for routine matters which may be inconvenient or time-consuming for the prosecutor to have to prove but which may reasonably be supposed to be within the accused's own knowledge to be dealt with in this way. It is not suggested that statutory provisions of this kind are objectionable.
Statutory presumptions which transfer the "persuasive" burden to the accused require further examination. Three kinds were identified by the respondents in their written case. I am content to adopt their analysis, which Mr Pannick Q.C. for the Director did not dispute. First, there is the "mandatory" presumption of guilt as to an essential element of the offence. As the presumption is one which must be applied if the basis of fact on which it rests is established, it is inconsistent with the presumption of innocence. This is a matter which can be determined as a preliminary issue without reference to the facts of the case. Secondly, there is a presumption of guilt as to an essential element which is "discretionary". The tribunal of fact may or may not rely on the presumption, depending upon its view as to the cogency or weight of the evidence. If the presumption is of this kind it may be necessary for the facts of the case to be considered before a conclusion can be reached as to whether the presumption of innocence has been breached. In that event the matters cannot be resolved until after trial.