England and Wales High Court (Administrative Court) Decisions

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Cite as: [1999] EWHC Admin 277, [1999] Crim LR 994, (1999) 11 Admin LR 785, [1999] 3 WLR 175

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QUEEN v. DIRECTOR OF PUBLIC PROSECUTIONS ex parte SOFIANE KEBILENE; FARID BOUKEMICHE and SOFIANE SOUIDI QUEEN v. DIRECTOR OF PUBLIC PROSECUTIONS ex parte FATEH RECHACHI [1999] EWHC Admin 277 (30th March, 1999)

IN THE HIGH COURT OF JUSTICE CO/5065/98

QUEEN'S BENCH DIVISION CO/0232/99

CROWN OFFICE LIST

DIVISIONAL COURT

Royal Courts of Justice

The Strand

London

Tuesday 30 March 1999

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Bingham of Cornhill )

LORD JUSTICE LAWS

and

MR JUSTICE SULLIVAN

THE QUEEN

- v -

THE DIRECTOR OF PUBLIC PROSECUTIONS

ex parte

(1) SOFIANE KEBILENE

(2) FARID BOUKEMICHE

(3) SOFIANE SOUIDI

THE QUEEN

- v -

THE DIRECTOR OF PUBLIC PROSECUTIONS

ex parte

FATEH RECHACHI

_______________

POST JUDGMENT DISCUSSION

(As Approved by the Court )

_______________

____________________

Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone No: 071-421 4040

(Official Shorthand Writers to the Court)

____________________

A P P E A R A N C E S :

LORD LESTER QC and MR BEN EMMERSON (instructed by Messrs B M Birnberg

& Co, London NW1 7HJ) appeared on behalf of

THE APPLICANTS SOFIANE KEBILENE, FARID BOUKEMICHE

and SOFIANE SOUIDI

MR GEOFFREY ROBERTSON QC and MR TIM OWEN (instructed by Messrs B M

Birnberg & Co, London NW1 7HJ) appeared on behalf of

THE APPLICANT FATEH RECHACHI

MR DAVID PANNICK QC, MR RABINDER SINGH and MISS JANE MULCAHY

(instructed by the Treasury Solicitor) appeared on behalf of

THE RESPONDENT

____________________

See: [1999] UKHL 43

Tuesday 30 March 1999

1. THE LORD CHIEF JUSTICE: It is, as we conclude, appropriate to discharge the restriction on the reporting of these proceedings which was imposed by Mr Justice Turner. There is no opposition, I think, to that course. The press will of course be aware that the ordinary law of contempt will remain in force and it would not be right to assume that there will not be a trial. All we are doing is discharging the restriction on the reporting of these proceedings. There is no difficulty, I hope, about that.

2. We invite the submissions of the parties, as we indicate in the judgment, as to what relief (if any) we should grant.

3. LORD LESTER: I am grateful, my Lord. We have been able to discuss that. The declaration that all counsel think is sufficient relief would be one quite simply that the Director of Public Prosecutions' decision to proceed with these prosecutions in each of these cases is unlawful. Then we would ask for an order for costs and legal aid taxation. My learned friend Mr Pannick will need to address your Lordships.

4. THE LORD CHIEF JUSTICE: So you are agreed on the terms of the declaration?

5. MR PANNICK: My Lord, yes, and there is no resistance to the application for costs.

6. THE LORD CHIEF JUSTICE: Or legal aid taxation?

7. MR PANNICK: Or legal aid taxation.

8. THE LORD CHIEF JUSTICE: Very well. We shall make those orders.

9. LORD JUSTICE LAWS: It means, Lord Lester, that no one is suggesting that certiorari is appropriate or necessary?

10. LORD LESTER: My Lords, no, we have thought about that and it is not necessary.

11. THE LORD CHIEF JUSTICE: Perhaps you would very kindly give a copy of the form of the declaration to the associate.

12. LORD LESTER: My Lord, the reason I have not is because we came with another declaration and my learned friend Mr Pannick convinced us that his was better.

13. THE LORD CHIEF JUSTICE: Right. Would you write it out -- it is very short -- and let the associate have it. Yes, Mr Pannick?

14. MR PANNICK: My Lord, we seek leave to appeal on certified questions.

15. THE LORD CHIEF JUSTICE: It is a criminal cause or matter for this purpose, is it?

MR PANNICK: Yes, it is.

16. THE LORD CHIEF JUSTICE: You are all clear on that?

17. MR PANNICK: Yes, we are. We therefore need a certificate of points of law of general public importance and we ask your Lordships to grant leave to appeal to their Lordships' House.

18. THE LORD CHIEF JUSTICE: We, I think, had frankly thought, without giving the matter any detailed consideration, that it would be going to the Court of Appeal, Civil Division, but it could well be that you are all right about that.

19. MR PANNICK: My Lord, we have certainly considered the matter.

THE LORD CHIEF JUSTICE: Blackburn, of course, got to the Court of Appeal, Civil Division. Is there a difference between a decision to prosecute and a decision not to prosecute?

20. MR PANNICK: There is. In this case we submit that the law has moved on very considerably. There are a number of cases that the Court of Appeal has considered. The distinction between civil and criminal, it seems to us, is plain by reference to the authorities. Where the dispute is as to whether a prosecution is a valid prosecution and the issue is whether or not the Director has erred in law on his assessment of the validity of the prosecution by reference to whether the substantive provisions authorising the prosecution conflict with the Convention -- that is a criminal cause or matter.

21. THE LORD CHIEF JUSTICE: It could certainly be said that it is closer as it were to a criminal trial than extradition.

22. MR PANNICK: Precisely. That is the view of all of us. We have independently researched the matter. If your Lordships do need persuasion, then plainly I would wish to have the opportunity to show your Lordships the authorities, but none of us has any doubt.

THE LORD CHIEF JUSTICE: Yes.

23. MR PANNICK: My Lord, I am grateful. My Lord, we have put before you a draft of points of law of general public importance. Lord Lester will correct me if I am wrong -- I think the position is that Lord Lester is content with my draft, subject to wishing to add a further question to which I do not object. I have not had the opportunity of hearing Mr Robertson's views, but I think they will be the same. Your Lordships see the three questions:

(1) If the Director in deciding whether to consent to a prosecution for an offence created by provisions in primary legislation takes into account whether those provisions are compatible with the European Convention on Human Rights, does the Court have power to determine whether, in its view, those provisions are so compatible?

(2) If the Court does have power itself to determine whether provisions in primary legislation are incompatible with the Convention, are sections 16A and 16B of the Prevention of Terrorism (Temporary Provisions) Act 1989 incompatible with Article 6(2) of the Convention?

(3) In the circumstances set out above, does section 29(3) of the Supreme Court Act 1981 deprive the Court of jurisdiction to consider an application for judicial review of the Director's decision to consent to a prosecution in the Crown Court, and is it an appropriate exercise of jurisdiction to entertain such an application?

24. THE LORD CHIEF JUSTICE: If we were to accept those proposed questions with Lord Lester's addition, I think logically it would go between your (1) and your (2), would it not?

25. MR PANNICK: My Lord, yes. Your Lordship has the advantage of having Lord Lester's questions?

THE LORD CHIEF JUSTICE: Yes, we do.

MR PANNICK: I am grateful.

26. THE LORD CHIEF JUSTICE: Some of it seems to be crossed out, presumably on the basis that it duplicates --

27. LORD LESTER: My Lord, it is only 2(b), that is to say whether, pending the bringing into force of its substantive provisions, the enactment of the Human Rights Act 1998 gives rise to an enforceable legitimate expectation that the Director of Public Prosecutions will exercise his prosecutorial discretion in accordance with the European Convention on Human Rights.

28. THE LORD CHIEF JUSTICE: Yes. The question I raised was whether, if we were to accept that, it would logically go between (1) and (2)?

LORD LESTER: I think so.

29. THE LORD CHIEF JUSTICE: I think it would, yes.

30. MR PANNICK: That would be a new question (2), and (2) and (3) would be renumbered. My Lords, we particularly ask your Lordships to grant leave to appeal rather than leaving it their Lordships' House so that we can take steps to seek to bring on an appeal in their Lordships' House speedily -- as soon as possible next term. My Lord, the Director and others are concerned about the general impact of your Lordships' judgment on other cases. Indeed Mr Rabinder Singh tells me that he has already been involved in another case in the Court of Appeal, Criminal Division, when the court yesterday adjourned the case so that they could consider the impact of your Lordships' judgment. The issue in that other case is, as I understand it, whether an ex parte hearing in the absence of the defendants on non-disclosure of documents for public interest immunity reasons is consistent with Article 6. There will no doubt be other cases where the impact of your Lordships' judgment will have to be considered. We therefore ask your Lordships to grant leave to appeal so that the matter can be heard as soon as possible.

31. LORD JUSTICE LAWS: Mr Pannick, it might be said that although the context of this case is the very important one of the Convention, in fact the reasoning of the judgments that we have delivered shows that the case was disposed of on conventional public law principles.

32. MR PANNICK: My Lord, in my submission the issues are of considerable general public importance and of some novelty relating to the application of the Convention to the exercise of discretionary functions, particularly in the context of prosecution. I appreciate your Lordships have reached a very firm judgment as to the correct answer. In my submission that does not diminish the importance of the issues and their general indications for the conduct of public authorities in the period leading up to bringing into force of the Human Rights Act. They are very important issues and I would therefore invite your Lordships to grant leave to appeal.

33. THE LORD CHIEF JUSTICE: Thank you. What do you say, Lord Lester?

34. LORD LESTER: My Lord, I am not sure I can be of great assistance. I agree with my learned friend that the issues are novel and of public importance. I also agree with the observations of my Lord, Laws LJ, that one could say that your Lordships have used conventional public law principles to dispose of the appeal. If I had lost, I would have made exactly the same submissions as my learned friend Mr Pannick. That is why I am inhibited from saying more than that it seems to me to be a matter of great importance to decide whether to give leave to appeal either here or leave it to the House of Lords because that may well have wider implications, not only for pending cases but also for the Government's decision about when to bring the Human Rights Act into force. I think I will adopt a rather wet, neutral position therefore on whether leave should be given by this court or it should be left to the House of Lords.

35. THE LORD CHIEF JUSTICE: Mr Robertson, are you wet and neutral as well?

36. MR ROBERTSON: No, my Lord, I am totally opposed for this reason. This is a criminal case. My client is in a wheelchair. The giving of leave would remove the matter to their Lordships and it would be some nine months before the issue is considered again. For all that it is of public importance, it is in our submission not appropriate to use these men as guinea pigs. It would have come more fairly from Mr Pannick had he prefaced his application by an indication that in any event the Director would not proceed with this prosecution. That would be in our submission the fair way if your Lordships are to set this case on a long journey to their Lordships. It should be done at least after some indication from the Director that he will not proceed with a trial come what may. My Lord, that is the position which I regret having to take, but as counsel for men in this position I have to take it, namely that the court, whilst certifying the points as of general public importance (as they undoubtedly are) should let their Lordships decide whether it is a matter that requires their leave.

37. MR PANNICK: My Lords, the applicants are of course protected by the abuse of process principle should it be the case that it becomes inappropriate to continue the prosecutions against them. The Director will, I can assure your Lordships, give consideration to all the circumstances as they arise at the time when these proceedings terminate as to whether it is appropriate to continue the prosecutions should he have power to do so. In my submission one anticipates that this matter will not take a long time to be disposed of in their Lordships' House because we are optimistic that if your Lordships do grant leave, their Lordships will consider it and determine it next term. Those are my submissions.

38. THE LORD CHIEF JUSTICE: Thank you. With the substitution of Lord Lester's question 2(b) to be inserted between Mr Pannick's questions (1) and (2) we propose to certify these questions as points of law of general public importance and to grant leave. In making that order we wish to say that in the ordinary course we should have been inclined to certify some, but perhaps not all, of these questions and should also have been inclined to leave it to their Lordships to decide whether leave should be granted or not. We are, however, conscious of the timetable and it seems to us very much more likely that an early hearing to dispose of the matter finally can be arranged if we grant leave rather than leaving it to the parties to apply to the House. We are also very conscious of the potentially far-reaching implications of decisions on this matter pending the coming into force of the main provisions of the Human Rights Act, and that also affects our decision.

39. The upshot is that we certify the questions that we are asked to certify in the order in which I have indicated and we grant leave.

40. LORD LESTER: My Lord, can I thank the court on behalf of all of us for having delivered these judgments so speedily and so fully?

41. THE LORD CHIEF JUSTICE: That is very kind. Thank you.

_________________________

42. The following declaration was agreed between all counsel: that the Director of Public Prosecutions' decision to proceed with the prosecutions in each of the cases was unlawful; that the applicants' applications for costs be granted and that there be legal aid taxation.

43. Leave to appeal to the House of Lords was granted. The following points of law of general public importance were certified:

(2) Whether, pending the bringing into force of its substantive provisions, the enactment of the Human Rights Act 1998 gives rise to an enforceable legitimate expectation that the Director of Public Prosecutions will exercise his prosecutorial discretion in accordance with the European Convention on Human Rights?

(3) If the Court does have power itself to determine whether provisions in primary legislation are incompatible with the Convention, are sections 16A and 16B of the Prevention of Terrorism (Temporary Provisions) Act 1989 incompatible with Article 6(2) of the Convention?

(4) In the circumstances set out above, does section 29(3) of the Supreme Court Act 1981 deprive the Court of jurisdiction to consider an application for judicial review of the Director's decision to consent to a prosecution in the Crown Court, and is it an appropriate exercise of jurisdiction to entertain such an application?