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On appeal from: [2017] EWHC 3056 (Admin)

This appeal considered whether judicial review of a decision not to prosecute is a proceeding ‘in a criminal cause or matter’ for the purposes of the Justice and Security Act 2013, s 6.

The Supreme Court allowed the appeal by a majority of three to two holding that the adoption of closed material procedure requires specific statutory authority. The Justice and Security Act 2013 gave the High Court a general statutory power, in certain circumstances, to receive “closed material” which is disclosed only to the court and to a special advocate. As explained in the 2011 Justice and Security Green Paper, the Act was a response to a growing number of civil claims for damages against which the government was unable to defend at trial except through the unacceptably damaging disclosure of secret material. Those claims instead had to be settled [6-7].

The ordinary and natural meaning of “proceedings in a criminal cause or matter” includes proceedings by way of judicial review of a decision made in a criminal cause, and nothing in the context or purpose of the legislation suggests a different meaning. In English criminal procedure many decisions made in ongoing or prospective criminal proceedings are subject to judicial review in the High Court. Judicial review therefore cannot be regarded as an inherently civil proceeding. It is an integral part of the criminal justice system [15-16]. Judicial interpretations of the phrase “criminal cause or matter” in the Judicature Acts primarily reflected the natural meaning of the words, rather than any special feature of the Acts. A “cause” is a proceeding, civil or criminal, actual or prospective, before a court. A “matter” is something wider, namely a particular legal subject-matter, although arising in a different proceeding. The appellants’ application is an attempt to require the DPP to prosecute Sir Mark Allen. That is just as much a criminal matter as the original decision not to bring a prosecution. Parliament is unlikely to have intended to distinguish between different procedures having the same criminal subject-matter and being part of the same criminal process; but the draftsman could have done so easily, for example by omitting the reference to a “matter” [17-20].

The Green Paper indicates that the distinction between criminal and civil proceedings in section 6 reflected the greater degree of control exercisable by the government in criminal cases, in which the prosecution can: (i) chose the material on which it relies, (ii) seek to limit the disclosure of unused material on the grounds of public interest immunity; and (iii) withdraw the prosecution. That rationale does not require closed material procedure to be available in an ancillary judicial review of a decision made as an integral part of the criminal justice process, when it would not be available for an actual criminal trial [22-24].

For judgment, please download: [2018] UKSC 33
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (22 Mar 2018 morning session) (22 Mar 2018 afternoon session)