Belhaj & Anor v Director of Public Prosecutions (DPP)

The Claimants’ case is that they were unlawfully “rendered” from Thailand to Libya in March 2004. In separate civil proceedings (see: Belhaj and Anr v Rt Hon Jack Straw and Ors [2017] EWHC 1861 (QB)), these Claimants are suing a number of Defendants for damages in respect of the alleged rendition. One of the Defendants in the civil claim is Sir Mark Allen CMG. The allegation in the civil proceedings is that he was instrumental in arranging the rendition.

In January 2012 an investigation began into complaints of ill-treatment of detainees, which became known as Operation Lydd. As a consequence of those investigations consideration was given as to whether there should be a prosecution inter alia for misconduct in public office associated with the rendition. On 9 June 2016, Ms S J Hemming, Head of Special Crime and Counter-terrorism Division of the Crown Prosecution Service, wrote to those then representing the Claimants informing them that the decision was there should be no such prosecution. The letter stated:

“Following careful review of the evidence and considering the comprehensive advice provided by counsel, I have decided that there is insufficient evidence to prosecute the suspect for any criminal offences linked to these allegations. I will try, within the parameters permitted by the classification of the evidence, to explain the reasons for my decision as clearly as I am can (sic).”

Following receipt of that letter the Claimants invoked their Victim’s Right to Review. The Review was conducted by the Director of Legal Services at the Crown Prosecution Service, Gregor McGill. In a letter of 5 August 2016, he wrote:

“Following a careful and fully independent consideration of the evidence, I have concluded that the decision not to prosecute this case was in fact correct. In other words, I agree with the original decision and this means that the suspect will not be charged.

…

In this case, for the same reasons that were given in the detailed statement previously issued, I have concluded that there is insufficient evidence.”

On 20 October 2016, the Claimants initiated Judicial Review proceedings, seeking to challenge the decision not to prosecute.

On 8 August 2017, the Secretary of State for Foreign and Commonwealth Affairs [“The Secretary of State”] applied, then as a non-party to the action, that there should be a declaration pursuant to Section 6 of the Justice and Security Act 2013 [“JSA 2013”] permitting Closed Material Proceedings [“CMP”] in the case. That application is resisted by the Claimants on a number of grounds, the first of which is jurisdiction. In very short summary, the Claimants submit that these Judicial Review Proceedings constitute a “criminal cause or matter” within the meaning and for the purposes of the JSA 2013, and hence fall outside the Court’s jurisdiction to make a declaration under Section 6 of the JSA 2013. Following argument, we ruled on Friday, 3 November 2017 against the Claimants on this issue. In this judgment we give our reasons.

This decision turns on a point of law. I should make it clear that, following the consent of the parties, we have looked at closed material de bene esse with a view to giving directions in the case, and indeed we held a brief closed hearing. The question at hand does not relate to or turn on any closed evidence, and all legal submissions relevant to the question were able to be made in open. There is no closed ruling in relation to the jurisdiction issue.

The relevant parts of Section 6 of the JSA 2013 read as follows:

“6.

Declaration permitting closed material applications in proceedings

(1)

The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.

(2)

The court may make such a declaration—

(a)

on the application of—

(i)

the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or

(ii)

any party to the proceedings, or

(b)

of its own motion.

(3)

The court may make such a declaration if it considers that the following two conditions are met.

(4)

The first condition is that—

(a)

a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings).

…

(11)

In this section—

“closed material application” means an application of the kind mentioned in section 8(1)(a), “relevant civil proceedings” means any proceedings (other than proceedings in a criminal cause or matter) before—

(a)

the High Court, (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court, “sensitive material” means material the disclosure of which would be damaging to the interests of national security.”

The critical question here is whether these proceedings are “proceedings (other than proceedings in a criminal cause or matter)”.

The phrase “criminal cause or matter” has received extensive judicial consideration, although with one exception (to which I will come) not in the context of the JSA 2013. Judicial consideration of that phrase has arisen overwhelmingly during consideration of appeal routes from the High Court, currently laid down in Section 18 of the Senior Courts Act 1981, and previously under predecessor statutes. This forms an important context to the use and meaning of the critical phrase.

By Section 4 of the Supreme Court of Judicature Act 1873 [“the 1873 Act”] the Supreme Court was constituted in two divisions:

“One of which, under the name of “Her Majesty’s High Court of Justice” shall have and exercise original jurisdiction, with such appellate jurisdiction from inferior courts as is hereinafter mentioned, and the other of which, under the name of “Her Majesty’s Court of Appeal” shall have and exercise appellate jurisdiction, with such original jurisdiction as hereinafter mentioned…”

By Section 16 of the 1873 Act, the newly-constituted High Court was vested with the jurisdiction hitherto exercised, inter alia, by the Court of Queen’s Bench, and other named pre-existing courts. By Section 47 of the 1873 Act, the High Court was endowed with the following business:

“47.

Provision for Crown cases reserved.

The jurisdiction and authorities in relation to questions of law arising in criminal trials which are now vested in the Justices of either Bench and the Barons of the Exchequer by the Act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter seventy-eight, intituled “An Act for the further amendment of “the administration of the Criminal Law,” or any Act amending the same, shall and may be exercised after the commencement of this Act by the Judges of the High Court of Justice, or five of them at the least, of whom the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, or one of such chiefs at least, shall be part. The determination of any such question by the Judges of the said High Court in manner aforesaid shall be final and without appeal; and no appeal shall lie from any judgment of the said High Court in any criminal cause or matter [emphasis added], save for some error of law apparent upon the record, as to which no question shall have been reserved for the consideration of the said Judges...”

By Section 71:

“The practice and procedure in all criminal causes and matters whatsoever in the High Court of Justice and in the Court of Appeal respectively, including the practice and procedure with respect to Crown Cases Reserved, shall be the same as the practice and procedure in similar causes and matters before the passing of this Act.”

Section 100 of the 1873 Act provided definitions of relevant terms:

“100.

Interpretation of terms.

In the construction of this Act, unless there is anything in the subject or context repugnant thereto, the several words herein-after mentioned shall have, or include, the meanings following; (that is to say,)

…

“Cause” shall include any action, suit, or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the Crown.

…

“Action” shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by Rules of Court; and shall not include a criminal proceeding by the Crown.

…

“Matter” shall include every proceeding in the Court not in a cause.”

It follows from the above that, at the creation of the Court of Appeal, the newly constituted High Court maintained jurisdiction over criminal appeals such as had existed previously in the precursor courts. There was no extension of the procedural rights of appeal in any criminal case: see the judgment of Mellish LJ in R v Fletcher [1876] 2 QBD 43 at page 44. The Court of Appeal, as a constituent of the Supreme Court Judicature, was therefore solely constituted for hearing appeals in civil matters.

In the case of R (Hargraves) v Steel and Others [1876] QB 37 the Court considered the right of appeal following the Judicature Act 1873. After analysing the transfer of earlier jurisdictions to the High Court, the newly-constituted Court of Appeal concluded that they had no jurisdiction to hear an appeal against a decision of a Master of the Crown Office on costs under a “side-bar rule”. The Applicant had been the Defendant in proceedings for criminal libel, initiated by information before the Magistrates, and had succeeded in achieving a verdict and judgment. The Defendant was aggrieved by the costs order and sought to appeal to the Court of Appeal. Lord Coleridge CJ declined jurisdiction stating:

“[Section 47 of the 1873 Act states] No appeal shall lie from any judgment of the said High Court in any criminal cause or matter…. Now is this a procedure in a criminal cause or matter? I think it cannot be doubted that a criminal information is a criminal cause or matter; it only differs in mere form from an indictment; … certain consequences are attached to the judgment for the Defendant in a criminal information by a private prosecutor for libel, viz. that the Defendant, if judgment is given for him, is entitled to his costs from the prosecutor, and this order of the court to tax is a matter of course after judgment, and it is clearly part of the procedure in a criminal matter, which is without appeal.”

These provisions of the 1873 Act came under further consideration in ex parte Alice Woodhall [1888] QB 832. The Appellant, Alice Woodhall, was brought before the Bow Street Police Court for the purposes of an extradition application. She was said to be a fugitive criminal, accused of forgery in New York. The Magistrate committed her to prison. An application was made to the Divisional Court of the High Court for habeas corpus. The Divisional Court refused the order and the Applicant sought further appeal to the Court of Appeal. In the course of argument, leading counsel for the Applicant took the Court to Sections 47 and 100, including direct reference to the definitions set out in Section 100. Counsel argued that the application for a writ of habeas corpus “is a collateral matter, not necessarily having reference to any criminal proceeding”.

Lord Esher MR considered the phrase “criminal cause or matter” within the meaning of Section 47. He said as follows:

“The result of all the decided cases is to shew that the words “criminal cause or matter” in s. 47 should receive the widest possible interpretation. The intention was that no appeal should lie in any “criminal matter” in the widest sense of the term, this Court being constituted for the hearing of appeals in civil causes and matters. The meaning of the words “criminal cause or matter” was considered in various cases which have been cited, but the case which helps one most to the true construction is, I think, Reg. v. Fletcher (1), following Reg. v. Steel. In Reg. v. Fletcher (1) the appeal was from a decision of the Queen's Bench Division discharging a rule for a certiorari to bring up for the purpose of quashing a summary conviction by justices. The Court of Appeal held that the appeal was from a judgment of the High Court in a criminal matter within the last clause of s. 47. Mellish, L.J., said: “In Reg. v. Steel (2) we held that clause was not confined, as was contended, to the High Court when sitting as the Court to hear points reserved in criminal cases, but extended to all criminal cases in the High Court, and therefore to criminal cases in the Queen's Bench Division. The question here is somewhat wider - whether the exemption from appeal extends to a proceeding in the Queen's Bench Division, which might be said to be not strictly a criminal proceeding in that court, but was a proceeding taken in that court for the purpose of quashing a conviction before justices which was clearly a criminal proceeding. Was that proceeding in the Queen's Bench Division a proceeding in a criminal matter? Now the intention of the legislature appears to me clearly to have been to leave the procedure in criminal cases substantially unaltered.”

…

In the present case, I think I must try to express my meaning in other words. I think that the clause of s. 47 in question applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject-matter of which is criminal, at whatever stage of the proceedings the question arises. Applying that proposition here, Was the decision of the Queen's Bench Division, refusing the application for a writ of habeas corpus, a decision by way of judicial determination of a question raised in or with regard to the proceedings before Sir James Ingham? I am clearly of opinion that it was, and I think it is impossible to say that what took place before him was not a proceeding the subject-matter of which was criminal. If the proceeding before the magistrate was a proceeding the subject-matter of which was criminal, then the application in the Queen's Bench Division for the issue of a writ of habeas corpus, which if issued would enable the applicant to escape from the consequences of the proceeding before the magistrate, was a proceeding the subject-matter of which was criminal. It follows, therefore, that this Court has no jurisdiction to hear the appeal.”

Legislative change continued, although preserving the “criminal cause or matter” term. The Court of Criminal Appeal was created by the Criminal Appeal Act 1907 [“the 1907 Act”]. The Court of Criminal Appeal was not part of the Supreme Court of Judicature, and the jurisdiction of the Court of Appeal, as a purely civil court, was not affected. The jurisdiction for Crown Cases Reserved, which had been transferred to the High Court by Section 47 of the 1873 Act, was transferred to the Court of Criminal Appeal. However, the High Court retained a jurisdiction over other criminal proceedings, including some appeals. The jurisdiction of the Court of Appeal continued to exclude any appeal in a “criminal cause or matter”.

In Provincial Cinematograph Theatres v Newcastle upon Tyne Profiteering Committee [1921] 90 LJ (KB) 1064 the House of Lords considered Section 47 of the Judicature Act 1873, including the decision in Woodhall. Under Section 1 of the Profiteering Act 1919, the Board of Trade had power to receive and investigate complaints of excessive profiteering. Section 2 of the Act gave a power to establish local committees to make such reports with a view to prosecution, and empowered the Board of Trade to delegate their powers for prosecutions to local authorities. The Newcastle Profiteering Committee had reported the Appellants for excessive charges on the sale of chocolate biscuits, and intended to institute proceedings.

In his leading speech, Lord Birkenhead LC considered the statute, and the judgment of Lord Esher MR in Woodhall:

“Now, we have in this case the provision contained in an Act of Parliament that the Board of Trade, or those to whom they delegate this power, shall “take proceedings” against the seller before a Court of summary jurisdiction if in their judgment the circumstances so require, and the sub-section goes on to provide that if in “such proceedings” it is found that the complaint is established certain consequences – namely, alternatively a fine or imprisonment, shall follow. But the proceedings in respect of which it is provided that there shall be either a fine or imprisonment, if there be a conviction, are the proceedings which are taken by the Board, or its representative, in pursuance of the peremptory terms which are used in the sub-section; and I am unable to see how it can be even contended that these proceedings are not proceedings within the meaning of the language used by Lord Esher and not impeached by counsel for the appellants in his argument.

It has long been recognised that the words under consideration are to be widely, and not restrictively, construed. I find myself in agreement with the whole of Lord Esher’s judgment.

Reference was made in the argument and in the judgments below to a later decision, PULBROOK, Ex parte, which indeed, if the matter were in any way doubtful, would, if accepted in this House, throw a great light upon the only question which requires decision. It was there held that an appeal does not lie from an order made by a Judge at Chambers under section 8 of the Law of Libel (amendment) Act, 1888 (51 & 52 Vict. C. 64), allowing a criminal prosecution to be commenced against the proprietor, publisher, editor, or person responsible for the publication of a newspaper, for libel published therein. In such a case the order which is made by a Judge at Chambers is not necessarily followed by any proceedings at all; the person who has so obtained the order of the Judge may, or he may not, initiate a prosecution upon the strength of such order. It was, nevertheless held, and in my judgment rightly held, that there is no appeal from such an order because it is given in a criminal matter. This decision was reached, although the Act itself, by directing that no prosecution shall be commenced without the order of a Judge plainly recognises that the actual commencement of the prosecution is a later and a distinguishable stage in the matter.

…

I am of the opinion, for these reasons, that this was an order made in a criminal cause or matter, and that no appeal from it can be heard. The appeal therefore fails, and I move your Lordships accordingly.” (pages 1067-1068)

Lord Sumner agreed, adding that:

“I think that when the local Profiteering Act committee resolved in the terms in which they did resolve, not only that there should be a refund of one half-penny, but that there should be a direction that proceedings be taken, they had already satisfied all conditions precedent, because it had appeared to them that the circumstances required them to take the proceedings which thereupon they proceeded to take; and the passing of that resolution was in my opinion not the mere satisfaction of a condition but was itself the first step in taking proceedings against the seller, although no doubt as a matter of fact subsequent steps would be taken personally by their clerk prosecuting on their behalf, and satisfying the words of the Act that they should take proceedings, and formally instituting what is called a prosecution before the Justices. It seems to me that the commencement of those proceedings by passing the resolution was itself the commencement of a criminal matter…” (page 1068)

Very shortly after that decision, the House of Lords decided the case of Clifford and O’Sullivan [1921] 2 AC 570. The Appellants were convicted of carrying arms in breach of a proclamation of December 1920 of the Commander-in-Chief in Ireland. They were civilians, tried by a military court and sentenced to death. The Supreme Court of Judicature Act (Ireland) 1877 prescribed appeal routes, and Section 50 of that Act excluded from the jurisdiction of the Court of Appeal in Ireland “criminal causes or matters”. The Irish Court of Appeal declined jurisdiction. That decision was overturned in the House of Lords, on the grounds (1) that the proceedings before the military court were in no sense criminal proceedings and (2) that the “military court did not claim to act as a judicial tribunal in any legal sense”. It will be seen that the facts of this case took it well outside the conventional allocation of appellate jurisdictions. However, in the course of his speech, Viscount Cave observed:

“It is desirable to deal first with the preliminary objection; and for myself I entertain no doubt that the Court of Appeal had and this House has jurisdiction to entertain the appeal. Sect. 47 of the English Judicature Act, which is similar to s. 50 of the Irish Act in prohibiting an appeal from any judgment of the High Court “in any criminal cause or matter,” has been considered in a number of cases, including Ex parte Woodhall (3) and a recent case in this House (Provincial Cinematograph Theatres v. Newcastle-upon-Tyne Profiteering Committee (4)); and it has been held that the words “judgment of the High Court in any criminal cause or matter” should be construed in a wide sense and as including any judicial decision with regard to proceedings the subject matter of which is criminal. But, however wide be the meaning to be attached to the words in question, they cannot, I think, apply to the decision of Powell J. in this case. No doubt that decision was given in a cause or matter, such matter consisting of the application to the learned judge for a writ of prohibition; but in order that a matter may be a criminal cause or matter it must, I think, fulfil two conditions which are connoted by and implied in the word “criminal.” It must involve the consideration of some charge of crime, that is to say, of an offence against the public law (Imperial Dictionary, tit. “Crime” and “Criminal”); and that charge must have been preferred or be about to be preferred before some Court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence. If these conditions are fulfilled, the matter may be criminal, even though it is held that no crime has been committed, or that the tribunal has no jurisdiction to deal with it (see Reg. v. Fletcher (1), per Amphlett J.A., and Rex v. Garrett (2), per Bankes L.J.), but there must be at least a charge of crime (in the wide sense of the word) and a claim to criminal jurisdiction.”

The Supreme Court of Judicature (Consolidation) Act 1925 made no alteration to the arrangements. The critical phrase was simply repeated in Section 31.

In Amand v Home Secretary and Another [1943] AC 147 the case concerned a Netherlands subject, resident in England, arrested as an absentee without leave from the Netherlands army, who was brought before a Magistrate with a view to his being handed over to the Netherlands military authorities. He applied to the Divisional Court for a writ of habeas corpus, which was refused. The Court of Appeal declined jurisdiction to hear an appeal, and thus the matter came before the House of Lords. As was recited by Viscount Simon LC in his leading speech:

“The whole question is whether the appeal from the Divisional Court to the Court of Appeal was an appeal from a “judgment of the High Court in any criminal cause or matter” within the meaning of Section 31 of the Supreme Court of Judicature (Consolidation ) Act 1925. By Section 225 of that Act “matter” includes every proceeding in Court, not in a cause. The Court of Appeal thought that the decision of the Divisional Court was in a “criminal cause or matter” and consequently held that the appeal was incompetent. I agree with that view … and it follows that the appeal to this House must fail.” (page 152)

The Claimants rely upon this decision as supporting the breadth of the relevant phrase.

Viscount Simon went on to state that:

“It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal [emphasis added]. This is the true effect of the “two conditions” formulated by Viscount Cave in In re Clifford and O’Sullivan. Applying these tests, I cannot doubt that the appellant’s application for the writ and the decision of the Divisional Court refusing it were “in a criminal cause or matter”. He has been apprehended by the police on suspicion of being a deserter or absentee without leave from the Dutch forces and is being brought before a court of summary jurisdiction on this charges by a procedure analogous to Section 154 of the Army Act so that the court, “if satisfied” may deal with him as provided in sub-section 4 of that section … The proceedings in the present case are for the direct purpose of handing the appellant over so that he may be dealt with on the charges.”

Lord Wright concurred in the outcome of the case. However, after analysing the facts and the specific statutory provisions, he went on to say:

“The words “cause or matter” are, in my opinion, apt to include any form of proceeding. The word “matter” does not refer to the subject-matter of the proceeding, but to the proceeding itself. It is introduced to exclude any limited definition of the word “cause.” In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act and the order, and to deliver the appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. … The few instances which I cite later are chosen merely to illustrate the wide meaning given to the words “criminal cause or matter” used in the section, or in the similar provision of the Supreme Court of Judicature Act 1873. It is not easy, or, perhaps, desirable, to attempt a precise or comprehensive definition of these words [emphasis added].” (page 160)

Lord Wright went on, at page 162:

“The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a “criminal cause or matter.” The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal.”

In the same case Lord Porter, also concurring in the outcome, reviewed the authorities and stated:

“The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge …” (page 164)

By Section 1(1) of the Administration of Justice Act 1960 [“the 1960 Act”] there was created a right of appeal to the House of Lords from decisions of the High Court “in any criminal cause or matter”, and by Section 1(2) the Court of Criminal Appeal had the jurisdiction to hear appeals in “criminal causes or matters” other than from the High Court. The Court of Appeal remained a purely civil jurisdiction. The significance of the changed route of appeal to the House of Lords no doubt arose because the High Court was a Court of coordinate jurisdiction with the Court of Criminal Appeal, both being constituted of High Court Judges, or in the case of the Divisional Court often a Lord Justice of Appeal and High Court Judges. The Court of Criminal Appeal regularly sat as the Court of three High Court Judges, without the LCJ.

The Criminal Appeal Act 1966 abolished the Court of Criminal Appeal, and reconstituted it by combining the Court of Appeal into a single court with two divisions: the Civil and Criminal Divisions. The jurisdiction of the Court of Appeal (Criminal Division) was simply transferred from the Court of Criminal Appeal.

The question of definition arose again before the Court of Appeal in R v Southampton Justices Ex Parte Green [1976] 1 QB 11. The Applicant’s husband been charged with drug importation and the Applicant herself provided a surety. Her husband absconded. Following his recapture and trial, Magistrates ordered the estreatment of the sum in which the Applicant had stood bail. She sought an order quashing that decision before the Divisional Court and, following their refusal, she sought to appeal to the Court of Appeal. The Respondents took the jurisdictional point against her. Mr Woolf argued that the proceedings were within the wide definition of “criminal cause or matter”. In his short leading judgment, Lord Denning MR referred to the approach of the House of Lords in Amand v Home Secretary, and in particular to the speech of Lord Simon LC quoted above from page 156 of that report. Lord Denning went on to say:

“Apply that test to an application to estreat a recognizance. The outcome is not a “trial” of the surety. There is no “possible punishment” of the surety of an “offence”. A recognizance is in the nature of a bond. A failure to fulfil it gives rise to a civil debt. It is different from the ordinary kind of civil debt because the enforcement is different. It is enforceable like a fine. It may be enforced by a warrant of distress, or by committing the defaulter to prison: see Sections 64 and 96 of the Magistrates’ Court Act 1952. But that method of enforcement does not alter the nature of the debt. It is simply a civil debt upon a bond and as such it is not a criminal cause or matter.” (pages 15G to 16A)

This case demonstrated a significant shift in the view taken of the breadth of the test from the earliest case law. It is hard to see how estreatment of a recognizance given in criminal proceedings, with a potential imprisonment in default, is outside the definition of “criminal cause or matter” whilst the issue of the quantum of costs ordered by a Queen’s Bench Master after the conclusion of criminal proceedings (as in Woodhall) constitutes a criminal cause or matter. This problem is the basis of subsequent criticism of the decision in ex parte Green.

By Section 18 of the Senior Courts Act 1981 [“the 1981 Act”], the dichotomy of existing appellate jurisdictions was preserved: this maintained criminal appeals other than from the High Court to the Court of Appeal (Criminal Division), but appeals to the House of Lords directly from the Divisional Court of the High Court. By now the Crown Court had been created.

By Section 151 of the 1981 Act, somewhat altered definitions of the key terms from those in the 1873 legislation were set down:

“151.

Interpretation of this Act, and rules of construction for other Acts and documents.

(1)

In this Act, unless the context otherwise requires—

“action” means any civil proceedings commenced by writ or in any other manner prescribed by rules of court;

…

“cause” means any action or any criminal proceedings;

…

“matter” means any proceedings in court not in a cause;”

As I hope will be clear, the purpose of this rather painstaking review of the changing statutory provisions bearing on criminal appeals is to emphasise that the earlier authority, which tended to stress the breadth of the relevant phrase, began in an era when criminal appeals were much more restrictive than subsequently they became, and developed through a period of statutory change, in the course of which it was no doubt necessary to avoid any blurring or unintentional encroachment on the historic criminal jurisdiction, including appellate jurisdiction, of the High Court and the Divisional Court.

It is appropriate to acknowledge that even today the High Court retains a significant appellate or quasi-appellate criminal jurisdiction: cases stated by Magistrates and by the Crown Court, judicial review of the Crown Court in matters other than relating to trial or indictment, bail decisions and judicial review of bail decisions, and the power to grant or amend a Voluntary Bill of Indictment.

In Day and Another v Grant [1987] 1 QB 972, theCourt of Appeal had once more to consider the question of jurisdiction in relation to two distinct cases. In the first case, the Divisional Court had directed that a witness summons, issued on behalf of a defendant in criminal proceedings, should be of no effect concerning the production of documents. In the second case, the Divisional Court had granted an application for an order of certiorari to quash a witness summons in a different Crown Court.

Sir John Donaldson MR reviewed some of the authority set out above, including in Re Clifford and O’Sullivan and Amand v The Home Secretary. Commenting on the speech of Lord Wright in Amand, the Master of the Rolls stated:

“So Lord Wright was saying that you look not to the particular order under appeal but to the underlying proceedings in which that order was made, and those are the proceedings which have to be characterised as either criminal or non-criminal. Viscount Simon LC said, at page 156:

“It is the nature and character of the proceedings in which habeas corpus is sought which provide the test. If the matter is one that the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal. This is the true effect of the “two conditions” formulated by Viscount Cave in In Re Clifford and O’Sullivan [1921] 2 AC 570/580”

So Lord Simon is saying precisely the same thing. Habeas corpus as such cannot be a criminal cause or matter; it is either neutral or civil. What Lord Simon is saying is that you look to see what is the nature or character of the proceedings in which habeas corpus is sought, and that provides the test.

Applying Amand’s case, it is quite clear that these witness summonses were issued or varied in criminal causes or matters.” (page 976A/D)

The Master of the Rolls went on to express doubt about the decision in the Ex Parte Green case and the decision in R v Sheffield Crown Court Ex Parte Brownlow [1980] QB 530. The Court of Appeal acknowledged that they were bound by Green’s case but considered that he could distinguish that case:

“Of Green's case it can be said that the proceedings in relation to Mrs. Green were collateral to the criminal cause or matter. In this case the summonses were both issued by the court which was itself charged with the criminal cause or matter and in that matter. If there is to be a distinction, that must be it, and, in my judgment, it is a valid distinction assuming that Green's case validly interprets Amand's case.” (page 976G-977A)

At page 977E/F the Master of the Rolls raised the difficulty caused by Amand’s case and Green’s case and invited the House of Lords to consider the matter “if a convenient opportunity occurred” (page 977E/F). The Court of Appeal took a similar line in Carr v Atkins [1987] 1 QB 963.

The House of Lords did consider the matter in Government of the USA v Montgomery and Another [2001] UKHL 196. The Respondent was a woman whose first husband had been convicted of serious fraud in the United States. Before his trial he had transferred very considerable assets to his then wife. Insufficient recovery of the proceeds of crime was achieved from the fraudsman. The Respondent divorced him and by the time of the relevant application had re-married. In 1997 the US Government obtained restraining orders from the High Court preventing her and her second husband from removing or disposing of their assets, pursuant to Section 77 of the Criminal Justice Act 1988 as amended. The Divisional Court discharged the relevant restraint orders and the US Government appealed to the Court of Appeal. The Court of Appeal dismissed a preliminary point by the Respondents that the Judge’s order had been in a “criminal cause or matter” so as to preclude an appeal, and that point was taken to the House of Lords by the Appellant Government.

The House of Lords ruled that restraining orders made under the Criminal Justice Act 1988 were not made in the course of a “criminal cause or matter”. Lord Hoffmann gave the leading speech with which the others concurred. After reviewing the decisions in Amand and ex parte Green, Lord Hoffmann said:

“17.

My Lords, like Lord Bridge of Harwich in In re Smalley [1985] AC 622, 634, I express no view upon the actual decision in R v Southampton Justices, Ex parte Green. But I think, with respect to Lord Denning, that Viscount Simon intended his second sentence to be illustrative of a case in which the "nature and character of the proceedings" were criminal and not an exhaustive definition of such proceedings. If they were, it would be difficult to explain why an order for the taxation of the defendant's costs in a failed prosecution for criminal libel was held to be "in a criminal cause or matter" in R v Steel, 2 QBD 37. Indeed, I would doubt the wisdom of trying to formulate any definition of "criminal cause or matter" to supplement the undefined expression used by Parliament.”

It is evident from the last quoted line from Lord Hoffmann’s speech that he had not been referred to the definitions of “cause” or “matter” set out, by now, in Section 151 of the 1981 Act.

Lord Hoffmann went on to say:

“19.

My Lords, it may be right, and possibly in most cases would be right, to regard orders made by way of enforcement of orders made or to be made in criminal proceedings as part and parcel of those proceedings. This was certainly the case in R v Steel, 2 QBD 37. But I would not accept what I regard as the extreme proposition of Mr Alun Jones that the nature of the proceedings in which the original order was made will necessarily determine whether the machinery of enforcement through the courts is a criminal cause or matter. Modern legislation, of which Part VI of the 1988 Act is a good example, confers powers upon criminal courts to make orders which may affect rights of property, create civil debts or disqualify people from pursuing occupations or holding office. Such orders may affect the property or obligations not only of the person against whom they are made but of third parties as well. Thus the consequences of an order in criminal proceedings may be a claim or dispute which is essentially civil in character. There is no reason why the nature of the order which gave rise to the claim or dispute should necessarily determine the nature of the proceedings in which the claim is enforced or the dispute determined.”

In his concurring speech, Lord Hobhouse observed (paragraph 37) that neither the Respondent Mrs Montgomery, nor her husband, had been parties to the criminal proceedings in America, although she had been “held to have been in civil contempt of the US court for aiding and abetting Mr Barnette in evading the restitution and forfeiture orders made against him” (paragraph 37). Lord Hobhouse went on to say:

“38.

This does not suffice to make the English proceedings criminal nor does it make the orders made in the English proceedings orders made in any criminal cause or matter. The restraint orders were not made in the US criminal proceedings: they were made in the English proceedings. Some cases may present a problem as to where the line is to be drawn. The present case is not such a case. The highest that it can be put is that the proceedings in which these orders were made, the English proceedings, were civil proceedings the commencement of which was indirectly consequent upon orders made in the US criminal proceedings against Mr Barnette.”

In R (Aru) v Chief Constable of Merseyside Police [2004] 1 WLR 1697, the Claimant had been arrested for an offence under the Public Order Act 1986. He was offered an official caution and signed a certificate stating that he fully admitted the offence and accepted the caution. Subsequently he sought judicial review of the issuing of the caution, arguing that it had been imposed unlawfully and contrary to the relevant guidance. Elias J, sitting in the Administrative Court, dismissed the application. The Claimant sought to appeal. Master Venne, head of the Civil Appeals Office, ruled that the appeal could not be lodged because the matter was a “criminal cause or matter” within Section 18(1)(a) of the Supreme Court Act 1981: in his view the Court of Appeal had no jurisdiction.

The Court of Appeal dismissed the appeal from that ruling, concluding that an official caution was indeed a criminal matter within Section 18(1)(a). The Court reviewed Amand’s case, The United States of America v Montgomery, R v Steel, Carr v Atkins, Day v Grant and the more recent case of R (South West Yorkshire Mental Health NHS Trust) v Bradford Crown Court [2004] 1 WLR 1664. The leading judgment of the Court was given by Maurice Kay LJ who, following that review of authority, stated:

“10.

How then do these authorities assist in the taxonomy of the present case? First, it is important to keep in mind that the words used in section 18 of the 1981 Act are "criminal cause or matter" and not, say, "criminal proceedings". The words "or matter" denote a wider ambit. Secondly, although the administering of the caution put an end to the risk of prosecution and conviction in the Magistrates Court, I find it impossible to escape the conclusion that it was simply another way of disposing of a "criminal matter". On the face of it, and as found by Elias J, Mr Aru was accepting his criminality and agreeing to be cautioned as an alternative to possible prosecution and conviction. Thirdly, it is necessary to have regard to the inherent nature and consequences of a caution. As Schiemann LJ said in R v Commissioner of Police of the Metropolis ex parte Thompson1997] 1 WLR 1519 (at page 1520):

"It is a method of disposal of criminal cases outside court which is more severe in possible consequences than a warning but usually less severe in its outcome than a successful prosecution. A formal caution is not something to be regarded lightly. Records are kept of the administering of cautions. The Home Secretary has power to direct over what period of time records should be retained... We understand... that in practice a record of caution will be kept for a minimum of three years. Such a caution, while carrying no immediate disagreeable consequences for the recipient, has potential adverse consequences for him should he be accused of offending on a future occasion. He is more likely to be prosecuted for that offence and he will not be able to claim a good character before the trial court. If convicted, the existence of a prior formal caution may affect his sentence. Formal cautions are usually cited after any conviction of a juvenile. In practice they are rarely cited in cases of adult offenders but may be referred to if they are relevant to the crime under consideration."

The question of the relevance of extant cautions to the issue of good character in the context of a subsequent criminal trial was further considered by the Court of Appeal Criminal Division: see R v Martin (David) [2000] 2 Crim App R 42. This is to be contrasted with proceedings such as those relating to an application for an anti-social behaviour order which are civil because no criminal offence need be established, no conviction or condemnation as guilty of an offence is implied, no penalty ensues (unless and until there is a subsequent breach) and the order does not go on the person's criminal record. For these reasons such orders were classified by the House of Lords in R (McCann) v Crown Court at Manchester [2003] 1 AC 787 as not relating to a criminal cause or matter. They are civil, their purpose is preventive and they are more akin to injunctions.

11.

All this leads me to the conclusion that a caution falls on the other side of the line, and that the judgment and order of Elias J were undoubtedly made in a criminal cause or matter.”

The Court of Appeal came to consider the test under Section 18(1)(a) in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court and Another [2011] 1 WLR 3253 [“Guardian News 1”]. As the headnote makes clear, following the conclusion of extradition proceedings, the District Judge refused an application by the Applicant newspaper that it be provided with copies of documents referred to during the hearings, which had been provided to counsel for the parties but not read out. The Applicant claimed judicial review of, and appealed by way of case stated against, that decision. The Divisional Court dismissed the claim and rejected the appeal. The Applicant sought permission to appeal from the Court of Appeal and the preliminary question was raised whether the Divisional Court’s judgment reviewing and/or appealing the decision of the Magistrates’ Court had been made in a “criminal cause or matter”. This report is of the judgment granting permission to apply for judicial review, and deciding on jurisdiction.

The leading judgment was given by Lord Neuberger MR. Having reviewed the by now familiar authorities up to and including USA v Montgomery, Lord Neuberger concluded:

“35.

As I think will be clear from the above discussion of the relevant cases on section 18(1)(a) and its statutory predecessor, the state of the law on the issue we have to determine is less than satisfactory. Given that, in the absence of authority, it appears to me that either party's case would be maintainable, I consider that we should accept the case which can best be reconciled with the authorities taken as a whole, or, perhaps to put the same point another way, the case which minimises future confusion and uncertainty.

36.

In my judgment, that approach justifies the conclusion that, in relation to GNML's projected appeal, this Court does have jurisdiction to hear it. GNML's application was wholly collateral to the extradition proceedings themselves, as is highlighted by the fact that the original application was made by someone who was not a party to those proceedings, and the order made by the District Judge refusing GNML's application did not involve the court invoking its criminal jurisdiction or making an order which would have any bearing on the extradition proceedings.

37.

I accept that this conclusion may be said to fall foul of the wide principle which may appear to have been laid down, perhaps most clearly by Lord Wright, in Amand [1943] AC 147. However, my conclusion is consistent with the conclusion reached in Green [1976] QB 11, which, despite two opportunities, the House of Lords has not overruled or disapproved. Indeed, some of the observations of Lord Bridge in Smalley [1985] AC 622, and, perhaps more arguably, some of the observations of Lord Hoffmann in Montgomery[2001] 1 WLR 196, appear to suggest that the reasoning in Amand [1943] AC 147 does not in fact go as wide as it might appear at first sight to go.

38.

The reasoning in Ex p Green [1976] QB 11 is not to be relied on: it is demonstrably flawed. In Montgomery[2001] 1 WLR 196 Lord Hoffmann obviously was unconvinced by the reasoning, and in Carr v Atkins [1987] QB 963 Sir John Donaldson held that the reasoning was no longer binding. However, my conclusion in this case appears to be consistent with Sir John Donaldson MR’s suggested justification for the conclusion in Ex p Green [1976] QB 11, and with his tentative guidance, given in the most recent case on the issue in this court, Carr v Atkins. I also think that the conclusion lies comfortably with Lord Hoffmann's observations in the Montgomery case [2001] 1 WLR 196.

39.

Furthermore, it does not seem to me that the conclusion that the Court of Appeal has jurisdiction in this case for the reason which I have given would mean that any other decision of this court which had gone the other way (i.e. Day v Grant (Note) [1987] 1 QB 972 and Carr v Atkins [1987] QB 963) would be called into question.

40.

I am far from saying that, in the absence of any authority, I would have reached the same conclusion, or that I would be confident that, if they were called on to clarify the law in this area, the Supreme Court would reach the same conclusion. As mentioned above, the competing arguments, at least to the extent that I have considered them, appear finely balanced. [emphasis added]

…

43.

In my opinion, any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court, but I believe that, consistently with the spirit of the approach in The Great Peace Shipping case [2003] QB 679, the best way of applying the "rather tangled" jurisprudence developed over the past thirty-five years, and ensuring maximum coherence (or maybe it is more realistic to say, minimum incoherence) is to hold that we have jurisdiction to hear the appeal in this case for the reasons given in paras 36-9 above.”

In the course of the substantive appeal R (Guardian news & Media Ltd) v City of Westminster Magistrates [2013] QB 618 [“Guardian News 2”], the matter of the meaning of the critical phrase arose again. The point in issue was whether the phrase “criminal cause or matter” must necessarily have the same meaning in any statute in which it appears. Hooper LJ addressed the point thus:

“102.

During the course of the hearing we asked whether the decision of the Court of Appeal, [2011] 1 WLR 3253, holding that it had jurisdiction to entertain an appeal from the decision of the Divisional Court in this case has any impact on the powers of the Criminal Procedure Rule Committee.

103.

Sections 68 and 69 of the Courts Act 2003 provide:

“68.

In this Part “criminal court” means— (a) the criminal division of the Court of Appeal; (b) when dealing with any criminal cause or matter— (i) the Crown Court; (ii) a magistrates' court.

69(1) There are to be rules of court (to be called “Criminal Procedure Rules”) governing the practice and procedure to be followed in the criminal courts.

(2)

Criminal Procedure Rules are to be made by a committee known as the Criminal Procedure Rule Committee.

(3)

The power to make Criminal Procedure Rules includes power to make different provision for different cases or different areas, including different provision— (a) for a specified court or description of courts, or (b) for specified descriptions of proceedings or a specified jurisdiction.

(4)

Any power to make … Criminal Procedure Rules is to be exercised with a view to securing that— (a) the criminal justice system is accessible, fair and efficient, and (b) the rules are both simple and simply expressed.”

104.

As sections 68 and 69 make clear, the rule making power of the Committee is limited to making rules in relation to the Crown Court and the magistrates' court when they are dealing with “any criminal cause or matter”.

105.

The Court of Appeal held that it had jurisdiction to entertain an appeal notwithstanding section 18(1) of the Senior Courts Act 1981 which provides that no appeal shall lie to the Court of Appeal in relation to the types of case therein specified, which include “(a) except as provided by the Administration of Justice Act 1960 , from any judgment of the High Court in any criminal cause or matter” (emphasis added). The Court held that the Guardian's application was “wholly collateral to the extradition proceedings”.

106.

Mr Perry, rightly in my view, said that the words “any criminal cause or matter” must have a different meaning in section 68 of the Courts Act 2003 than they do in section 18(1) of the Senior Courts Act 1981 . To give the words “any criminal cause or matter” in section 68 a narrow meaning would lead to the undesirable result that issues such as those dealt with in Part 5 of the Criminal Procedure Rules (and in other parts of the Rules) would have to be the subject of rule-making by some other body. That cannot have been the intention of Parliament. See also section 66 of the Courts Act 2003, the recently inserted subsection (1A) of section 8 of the Senior Courts Act 1981 (as inserted by paragraph 1(4) of Schedule 2 to the Armed Forces Act 2011) (both of which make provision for the powers of certain judges) and section 16(5) of the Prosecution of Offences Act 1985 .”

Lord Neuberger MR (again presiding) agreed:

“I agree with what is said in para 106 that ‘criminal cause or matter’ in section 68(b) of the Courts Act 2003 does not necessarily have the same meaning as the identical expression in section 18(1) of the Senior Courts Act 1981 , and that, if the expression in the 1981 Act has the meaning ascribed to it in the earlier decision in this case, [2011] 1 WLR 3253, then it has a different meaning in the 2003 Act [emphasis added]. In particular, it would be inappropriate for the expression to be accorded a narrow meaning in the 2003 Act.”

The most recent decision following argument on the point is that reported in R (Panesar) v Central Criminal Court [2015] 1 WLR 2577. Once again, the factual and legal context is significant. HMRC suspected fraud and obtained search warrants under sections 8(1) and 9 and schedule 1 to the Police and Criminal Evidence Act 1987, authorising search. A certain amount of material was seized. The warrants were subsequently quashed because there had been no reasonable grounds to believe that an indictable offence had been committed, as was required by Section 8(1) of the 1984 Act. Nevertheless, the revenue applied to the Central Criminal Court under Section 59(5)(b) of the Criminal Justice and Police Act 2001 for an order authorising retention of the seized material. The judge at the Central Criminal Court held, on a preliminary issue, that the Court had jurisdiction under Section 59(5)(b) to make the order sought, notwithstanding the fact that the warrants had been quashed. The Claimants sought judicial review of the decision. The Divisional Court (Lord Thomas CJ and Foskett J) dismissed the application for judicial review, holding that retention was justified under the subsection where the seizure had been in “purported exercise” of a power, which meant the exercise of a power which (for whatever reason) did not in fact exist at the time it was exercised. The Claimants sought to appeal to the Court of Appeal from the decision of the Divisional Court.

The Court of Appeal dismissed the appeal for want of jurisdiction. The judgment of the court was given by Burnett LJ (as he then was), Patten and Macur LJJ concurring. Burnett LJ reviewed the relevant legislation and the authorities on “criminal cause or matter” as set out in this judgment above, up to and including the decision in Guardian News 2. The critical paragraphs in his judgment are as follows:

“19.

The application under section 59 is made in the Crown Court (a matter of significance in the Montgomery case [2001] 1 WLR 196). The statute identifies a small number of instances where the application should be made in a civil court. When considering an application under section 59(5)(b) of the 2001 Act, or considering subsections (6) and (7) when an application for return of property is made by a person with a relevant interest under section 59(2) , the Crown Court is concerned no less with a statutory provision in aid of a criminal investigation with a view to criminal prosecution, than is a criminal court faced with an application under sections 8 or 9 of the 1984 Act. The reality is that it provides an alternative mechanism to a fresh application under the 1984 Act (and also the other criminal provisions to which section 59 applies) when something has gone wrong with the original process.

20.

In my judgment there is no basis upon which the reasoning of this court in Carr v Atkins [1987] QB 963 can be distinguished. Nothing in the Montgomery case or the Guardian case [2011] 1 WLR 3253 calls it into question. I acknowledge that the authorities on the meaning of “criminal cause or matter” have given rise to some uncertainty and, as Lord Neuberger MR recognised in the Guardian case, some incoherence. It does not follow from the proposition that in some cases it is difficult to determine whether given proceedings are a “criminal cause or matter” that the same difficulty arises in all cases. I am satisfied that the underlying proceedings challenged in the Divisional Court in this case were a criminal matter. In the result the Court of Appeal has no jurisdiction to entertain an appeal from its order. The appellants must make their application to the Divisional Court and, if successful, pursue their appeal in the Supreme Court.”

The Claimants rely on the fact, acknowledged by the Defendant, that, historically, where an application has been made for judicial review of a decision in favour of prosecution, the appeal route has consistently been agreed to be direct to the House of Lords or Supreme Court. We were not referred to any authority where that appeal route has been challenged. Indeed, it is explicitly part of the Defendant’s submission that that is correct: such a judicial review is an attempt to intervene in on-going criminal proceedings.

However, the Claimants also rely on two reported cases of judicial review challenge to a decision not to prosecute, where the same appeal route appears to have been accepted without argument. In R (Pretty) v DPP [2002] 1 AC 800 the challenge was to the DPP’s refusal to give an advance undertaking not to prosecute assisted suicide. That is to say, no specific prosecution was in contemplation, although the case was centrally concerned with future potential prosecutions and was of course focussed on the specific position of Ms Pretty and her family.

The Claimants also rely on the position adopted by the Director of the Serious Fraud Office in R (Cornerhouse Research) v Director of Serious Fraud Office [2009] 1 AC 756. The case concerned a challenge to the decision not to prosecute offences of corruption relating to arms sales to Saudi Arabia, by reference to the public interest. Hence, in this case, there were particular offences and potential defendants in mind. Nevertheless, the SFO expressly agreed that the appropriate appeal route from the Divisional Court was to the House of Lords. The Defendant’s response to this is simply to submit that:

“the jurisdiction issue does not appear to have been considered and was certainly not argued. The fact that a jurisdiction point was not taken in that case is not an answer to the Defendant’s submissions.”

The question of jurisdiction to make such a declaration under Section 6 of the JSA 2013 has only arisen once, in Al Fawwaz v Secretary of State for the Home Department [2015] EWHC 468 (Admin) [“Al Fawwaz (No 1)”]. The facts are summarised in a second judgment in the proceedings, Khalid Al Fawwaz v SSHD [2015] EWHC 166 (Admin), to which I refer below as Al Fawwaz (No 2). Again, the factual context is helpful. The case concerned a request by Letters Rogatory issued by a judge in New York seeking intelligence material said to be held by the Security Service relating to the Claimant, Khalid Al Fawwaz. District Judge Kaplan was presiding over the Claimant’s criminal trial. The Claimant faced a number of counts of conspiracy relating to terrorist attacks. There were thus ongoing serious criminal proceedings into which the relevant information would have been introduced as evidence. The Claimant sought a quashing order in respect of the refusal, and a mandatory order requiring the Secretary of State either to provide the material sought by Judge Kaplan, or a gist of it: (Al Fawwaz (No 2), paragraph 4).

In Al Fawwaz (No 1) Wyn Williams J gave his reasons for accepting jurisdiction and granting a declaration pursuant to Section 6 of the JSA 2013 following submissions on 20 November 2014. Althoughnot contested, the question of jurisdiction was the subject of detailed submissions to the Court. Wyn Williams J ruled that he had jurisdiction in the following terms:

“2.

On 20 November 2014 I made a declaration pursuant to section 6 of the 2013 Act. When I did so I indicated that I would provide reasons for so doing in writing at a later date. These are my reasons.

3.

The Defendant filed a statement of reasons in which she asserted that all the conditions specified in section 6 of the Act for the making of a declaration were met in this case. The Claimant’s legal representatives did not dissent. On the basis of the Defendant’s statement of reasons there can be no doubt that the two conditions set out in section 6(4) and 6(5) were met. On any view, the Defendant would have been required to disclose sensitive material to the Claimant. Further, I was in no doubt that it was in the interests of the fair and effective administration of justice to make the declaration. So much will be obvious from a reading of the open and closed judgments on the substantive claim. I was also satisfied from the statement of reasons that the requirements of section 6(7) were met.

4.

I was empowered to make the declaration sought provided I was “seized of relevant civil proceedings” – see section 6(1) of the Act. Such proceedings are defined as proceedings before the High Court “other than proceedings in a criminal cause or matter” – see section 6(11).

5.

The phrase “criminal cause or matter” appears in statutory provisions other than section 6 of the Act. Primarily, it occurs in statutory provisions concerned with appeals. Mr Chawla QC, quite properly, took me through a number of decisions in which the phrase has been considered in that context and/or when the court has found it necessary to consider whether proceedings are criminal or civil in nature. In particular he referred me to R –v- Lambeth Magistrates Court ex parte McComb [1983] 1 QB 551, Bonalumi –v- Secretary of State for theHome Department [1985] 1 QB 675, Cuoghi –v- Governor of HMP BrixtonNo 1[1997] 1WLR 1346 and B –v- Chief Constable of Avon and Somerset [2001] 1 WLR 340.

6.

It does not seem to me to be necessary or fruitful to seek to analyse those decisions, or indeed, to seek to reconcile them all if that is possible. I say that since in R(Guardian News and Media Limited) v City of Westminster Magistrates’Court and Another [2013] QB 618 the Court of Appeal concluded that the phrase “criminal cause or matter” need not have one meaning regardless of its statutory context but, rather, might be interpreted differently depending upon its statutory context - see, in particular, paragraphs 101 to 106 in the judgment of Hooper LJ and paragraph 110 in the judgment of Lord Neuberger of Abottsbury MR (as he then was). I must determine whether these proceedings fall to be described as a criminal cause or matter in the context of and set against the policy behind the 2013 Act.

7.

In his written and oral submissions Mr Chawla QC argued persuasively that a purposive interpretation of section 6 of the Act compelled the conclusion that this judicial review should not be excluded from its ambit. I agree. It would be most unfortunate if cases of this kind were excluded from the ambit of section 6 of the Act just because they have a connection with criminal proceedings in another jurisdiction. I agree with Mr Chawla’s point that in order to decide whether proceedings are civil or criminal in the context of the Act it is necessary to identify the core function to be performed by the court in the proceedings in question. In this case the court will be called upon to determine whether the Defendant lawfully exercised her discretion when she refused the requests made of her on the grounds of national security. The function of this court is a step removed from any proceedings which can properly be categorised as a criminal cause or matter.

8.

In my judgment it was proper to make a declaration under section 6 of the Act because all the statutory criteria for the making of such a declaration were met. In my view, too, the Claimant was right not to oppose the making of the declaration.” (Al Fawwaz (No 1) paragraphs 2-8)

Following that decision (although before the reasons were handed down) Burnett LJ and Wyn Williams J sat on a three day “rolled-up” application for judicial review, incorporating a closed material procedure, and giving closed as well as open reasons: see Al Fawwaz (No 2), paragraphs 1 and 3. In other words, the Court exercised the jurisdiction which Wyn Williams J had concluded was open to them.

I have already briefly summarised the submissions of the parties.

The Secretary of State points out that the Claimants’ initial position was that a closed material procedure would be available.

The Secretary of State goes on to submit that the phrase “criminal cause or matter” need not have the same meaning in every statutory context (see Guardian News 2, paragraphs 101-106). The phrase appearing in Section 6(11) of the JSA 2013 must be interpreted according to the purpose and intent of the statutory scheme behind the Act, and here the Secretary of State adopts the reasoning of Wyn Williams J in Al Fawwaz (No 1). The meaning ascribed to the phrase in the successive legislation and judicial interpretations on criminal appeal routes need not, and should not, bind the courts in considering this different statutory and factual context. The principle of consistency outlined in Barras v Aberdeen Steam Trawling and Fishing Company Ltd [1933] AC 402 only applies in similar contexts. This context is markedly different.

The central thrust of the Secretary of State’s submissions is that the JSA 2013 addresses a very different problem from allocation of appeals. The principal purpose of the legislation is to enable the court to look at such a case as this, with suitable protections in place. This avoids:

“…the dilemma which would otherwise arise, i.e. requiring either (a) disclosure of the sensitive material, or (b) a claim for Public Interest Immunity (PII) which if upheld would prevent any consideration of the material, thus rendering the proceedings untriable on their merits: see, among others, CF v Ministry of Defence [2014] EWHC 3171 (QB) at paragraph 25).”

The Court should seek to avoid the problems that would arise in the absence of a CMP, identified by Ouseley J and analysed in his judgment in AHK and Others v Secretary of State for the Home Department [2012] EWHC 1117 (Admin) in the following passages:

“57.

… First, can the Court fairly review the decision without a CMP? In my view, it cannot review the decision since it will not have all the information upon which the decision was taken. By contrast with an ordinary civil action, the Court would be reviewing the lawfulness, not the merits, of the decision. It cannot do that without seeing all the material which statutory duty required, or permitted the SSHD to take into account, save for the particular issue of information obtained by torture. It would be impossible for it to hold that her decision was irrational, or unlawful when it could not know what she had considered.

58.

It will not have all the information as a result of the Court itself deciding that the material is too sensitive to be released. The balance will have come down against disclosure. The Court could not try the issue, knowing that there was other relevant material but not knowing what it was, on the false basis that there was nothing else or that the SSHD had simply refused to provide material. It would have to take its decision on the basis that the absence of disclosure of concerns or reasons was justified, after the PII hearings. If the SSHD gives evidence that there were good reasons and a sound relevant basis for her decision, having considered the Claimant’s representations, which she could not further disclose, it would be impossible for the Court fairly or reasonably to hold that she was wrong in saying that. The Claimant would have no prospect of persuading the Court to the contrary. It is not so much that the case is untriable; it can be tried. It is simply that the evidence means that the Claimant cannot win. So there is no point in it going to trial. Even if it were alleged that an immaterial factor had positively been taken into account, unless its context and significance could be fully appreciated, the Claimant still could not win.

59.

This would be akin to the position in Carnduff v Rock and Chief Constable of West Midlands Police [2001] EWCA Civ 680,[2001] 1 WLR 1786. The Court of Appeal held by a majority that a fair trial of the issues between the police and the Claimant, an informer who was seeking to enforce payments he said were due under an agreement he had with the police, would require disclosure, investigation and a court ruling on sensitive police information which should remain confidential in the public interest. The public interest in maintaining that confidentiality clearly outweighed the public interests in having the issue litigated on all relevant evidence. There was no sensible possibility that the claim could be litigated without offence to the public interest and so it was struck out. The minority view was that if such a contract existed, a mechanism for trying the issue should be found. The Claimant’s application to the ECtHR was held inadmissible; 18905/02.

60.

For the same reasons, there is really no second possibility that the SSHD must lose. The Court cannot require the SSHD either to disclose material harmful to national security in order to prove the lawfulness of her conclusion that the Claimant was not of good character, when the Court itself had decided against ordering disclosure, or to grant naturalisation in breach of her statutory duty, when she was not satisfied that he was of good character.”

AHK was decided before the commencement of the JSA 2013, and it is of course correct that the courts were unable to introduce a CMP. As the Supreme Court concluded in Al Rawi v Security Service [2012] 1 AC 531, such an innovation required a statute. However, the Secretary of State relies on the difficulties identified as justifying an active approach to the jurisdiction under the Act. The alternative being resort to PII application and then contemplation of injustice to one party or another. Mr Eadie QC submits firmly that if the matter were “untriable” in the sense of Carnduff v Rock [2001] 1 WLR 1786, there can be no easy assumption that the Secretary of State would be the loser, as opposed to the Claimant.

The Defendant supports the application of the Secretary of State. The submissions advanced, with one exception, are consistent with the arguments of the Secretary of State.

Mr McGuinness QC for the Defendant seeks to distinguish between a judicial review challenge to a decision in favour of prosecution, and a challenge to a decision against. This argument is founded on the two conditions identified in the speech of Viscount Cave in Clifford v O’Sullivan, quoted above. The submission is that a decision in favour of prosecution represents a step in ongoing criminal proceedings, whereas in the instant case there are no such criminal proceedings, and moreover, successful judicial review here would merely mean that the decision was taken again.

The decision against prosecution in this case was taken on insufficiency of evidence. A review of the decision would not necessarily reach a different conclusion on that issue, and even if the evidence was considered to be sufficient, the public interest test would remain to be addressed.

I have indicated the outline of the Claimants’ submissions above. The Claimants rely on the analogy of the case law in respect of criminal appeal jurisdiction, on the Barras principle, and on the hitherto established practice that appeals in judicial review of prosecutorial decisions have always been taken to run from the High Court to the Supreme Court.

The Claimants reject the position of the DPP as being “devoid of principle”. The meaning of the phrase in the JSA 2013 cannot “be determined by the particular exercise of discretion, on individual facts”. The Claimants rely on the decision in R (Sarkandi) v Secretary of State for Foreign and Commonwealth Affairs [2015] EWCA Civ 687, where at paragraph 58 the Court concluded that the terms of the JSA 2013 should not be given a restrictive reading. The passage relied on is as follows:

“58.

The 2013 Act is one of those in which Parliament has stipulated that a closed material procedure may be permitted by the court. It represents Parliament's assessment of how, in relevant civil proceedings, the balance is to be struck between the competing interests of open justice and natural justice on the one hand and the protection of national security on the other, coupled with express provision in section 14(2)(c) to secure compliance with article 6. It is certainly an exceptional procedure, and in the nature of things one would expect it to be used only rarely, but the conditions for its use are defined in detail in the statute. In the circumstances there is, in my judgment, no reason to give the statutory provisions a narrow or restrictive construction, save for any reading down that may be required, in accordance with the terms of the statute itself, for compliance with article 6. Subject to that point, the provisions should be given their natural meaning and applied accordingly. Appropriate safeguards against inappropriate or excessive use of a closed material procedure are built into the provisions themselves, starting with the conditions for a section 6 declaration and encompassing the provisions for review and revocation of a declaration and those governing applications for permission not to disclose material in proceedings in relation to which a declaration is in place.”

On the contrary, the Claimants submit that the relevant test in the legislation should be broadly construed. They rely upon the definition of “matter” being wider than “proceedings”. There can be no prerequisite of an existing criminal prosecution: much of the authority on criminal appellate jurisdiction emphasises that point. It should be the nature of the decision at issue which is determinative, not the outcome of that decision. The decision whether or not to prosecute is the culmination of a criminal investigation and is “by its very nature a criminal cause or matter”.

The Claimants detect no principled basis upon which the interpretation of “criminal cause or matter” in the JSA 2013 should be more restrictive than the historical interpretation of the Senior Courts Act 1981 and its predecessors, particularly in a statute such as this where, if the reading sought by the Secretary of State is applied, it will have the effect of “abrogating the Claimants’ fundamental rights”. Bearing in mind the principle of legality, such an effect should not be construed from legislation without clear and express language.

In an allied submission, Ms Montgomery QC rejects any reliance on the explanatory notes to the Bill or the Green Paper which preceded it. Here the Claimants rely on the well-known dictum of Lord Steyn in R (Westminster City Council) v National Asylum Report [2002] 1 WLR 2956 at paragraphs 4 and 6, and on the observations of Lord Hoffmann in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at page 131E/G:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”

Ms Montgomery submits that in the context of such proceedings as these, the common law safeguard of public interest immunity is sufficient and indeed preferable.

In my view, the review of authority on criminal appellate jurisdiction produces no real clarity. Even setting aside the reasoning of the Court of Appeal in Re Green, about which there is wide judicial scepticism, there is still a considerable variation in the width of judicial interpretation of the critical phrase. Having analysed the case law closely above, it seems to me unnecessary to say very much more on that point.

In my view, the context of allocation of criminal appeal is distinct, and gives rise to different considerations than this case. The Barras principle cannot, in my view, enforce a consistent interpretation of the relevant phrase, when the context is so different. Nor has there always been clear, and certainly not wholly consistent, interpretation of the phrase, even in the context of criminal appeal routes, as many judicial comments have made clear: see, for example, the remarks of Lord Neuberger MR in Guardian News 2, and of Burnett LJ in Panesar.

Historically, the caution on the part of the Court of Appeal and the House of Lords must initially have been governed by the desire to avoid blurring the lines of appeal and encroaching upon longstanding, discrete criminal jurisdictions, recently subject to statutory reorganisation and reform. Moreover, there will always be reluctance on the part of a civil court to entertain anything akin to an appeal in a criminal matter.

This case is not an appeal. In my view Mr Eadie is correct to emphasise the different context. Even if this application were to succeed, important further steps would have to be taken before criminal proceedings might begin.

That said, I accept that the judgements under scrutiny here undoubtedly concern future criminal proceedings. If we were addressing an appeal route, and looking at the Senior Courts Act provisions, it is not impossible that conclusion would be different. Mr Eadie conceded that might be so during argument.

It seems to me the critical points are as follows. Firstly, the phrase may have different meanings in different statutes, as was recognised by the Court in Guardian News 2. Without any recourse to the Green Paper or Explanatory Notes, it is clear that in enacting the JSA 2013 Parliament was forging a solution, however controversial to some, to a wide range of proceedings, with the common thread that the proceedings could not be properly tried and the relevant evidence examined by the court, without closed material proceedings. I am fully alive to the problems attendant on such proceedings, having attempted to articulate them in F v Security Service and Others [2014] 1 WLR 1699, in particular at paragraphs 16 to 27. The most important problem is that, even if justice is being done, it cannot be seen to be being done.

As Mr Eadie recognises, there is a paradox here. The effect of the extension of the JSA 2013 to proceedings such as these is that the executive, in the form of the prosecuting authorities, can be held to account by judicial process. What is described by the Claimants as an encroachment on their fundamental rights in fact enfranchises informed and detailed scrutiny by the Courts, which would otherwise be impossible. The question of jurisdiction here only constitutes a live issue if it is shown there is material which would justify a declaration under s.6 of the 2013 Act. In such circumstances, the outcome of a PII application would be likely to remove important information from the Court’s scrutiny. In my view, a likely further effect might well be that such a prosecutorial decision as this could not be effectively reviewed. If the relevant information is such that the fair and efficient trial of the case requires it to be considered, the case might be found to be untriable. I make no assumption as to which side would suffer and which would gain from such an outcome, but the outcome would likely be injustice to one party. That is an outcome to be avoided if it properly may.

If this case was an appeal in criminal proceedings, then altogether different considerations would arise. It is hardly necessary to recite them. In that context, closed proceedings might be likely to breach ECHR Article 6, as well as long-established common law principles, without any statutory basis. Even if in the different statutory context of Section 18(1) of the Senior Courts Act, this case should properly be regarded as “proceedings” concerning a “criminal cause or matter”, it is certainly not an appeal “in” criminal proceedings. The outcome of this case cannot and will not decide criminal liability. Any suggestion of encroachment on fundamental rights must be approached with that distinction in mind.

There is a further consideration to be borne in mind. Whether a declaration under Section 6 is made or not, whether the existing prosecutorial decision is upheld or remitted for review, and whatever the outcome of any such review, neither the Claimants nor the potential criminal defendant will be made privy to all of the information properly to be borne in mind by the prosecutor. Even setting aside legal professional privilege in relation to the historic decision, privilege arising in respect of any future prosecutorial decision, and the likely nature of security evidence here, means that is so.

Given that the decision here was against prosecution, the submission from Mr McGuinness that the jurisdiction under the JSA 2013 would not arise, were the decision under challenge to have favoured prosecution, is not a point it is strictly necessary to resolve. However, here I agree with the Claimants’ arguments, and it seems apt to say so, to make my reasoning clear. I am unable to see how a jurisdictional question can be decided in that way. Moreover, it is perfectly conceivable that, in related matters based on the same body of evidence, the DPP will decide to prosecute X and not to prosecute Y. If both decisions were challenged, could it really be the law that there could be no closed material proceedings in one challenge, while there was in the other? What if the victim’s challenge to a negative decision succeeded following closed material proceedings, the matter was reviewed, and a change of mind prevailed: would the prospective criminal defendant then mounting a judicial review challenge be precluded from applications under Section 6 of the 2013 Act, if he were advised it was in his interests to make it? Once analysed, it seems to me that submission must fail.

For those reasons, I concluded that there is jurisdiction in this case to receive an application for a declaration under Section 6 of the JSA 2013.

I agree.