What is a “Criminal Cause or Matter” and Why Does it Matter?
Belhaj and Another v DPP  EWHC 3056 (Admin)
The phrase “in a criminal cause or matter” appears in a number of statutory provisions and, broadly speaking, is used to refer to proceedings that relate to criminal matters but are not necessarily criminal themselves (e.g. proceedings relating to the seizure of material in aid of a criminal investigation). However, despite (or perhaps because of) the fact that the phrase was first used in the 19th century, it continues to pose interpretative difficulties for courts.
On 1 December 2017, the Administrative Court ruled in a preliminary hearing in Belhaj v DPP that it had jurisdiction in that case to make a declaration permitting closed material procedures (CMP) under section 6 of the Justice and Security Act 2013 (the “JSA 2013”). The underlying (and ongoing) proceedings involve a claim for judicial review of the DPP’s decision not to prosecute the suspect for involvement in the unlawful rendition of the claimants, Mr Belhaj and Mrs Boudchar, from Thailand to Libya in March 2004. The issue in the preliminary hearing, however, concerned the application of section 6 of the JSA 2013, which provides that a declaration permitting CMP can be made by the court in “relevant civil proceedings”, meaning any proceedings other than proceedings in a criminal cause or matter before (i) the High Court, (ii) the Court of Appeal, (iii) the Court of Session, or (iv) the Supreme Court. The question was therefore whether the proceedings in question (the judicial review of the DPP’s decision not to prosecute) were “in a criminal cause or matter”.
The Court recognised at the outset that the phrase had a long and chequered legislative history dating back to the Supreme Court of Judicature Act 1873, in which it was used to restrict the right of appeal from the High Court in criminal matters following the creation of the Court of Appeal. In other words, it was used to preserve the High Court’s jurisdiction over criminal appeals, with the new Court of Appeal to be concerned solely with civil matters. Since then, a body of case law has developed regarding the correct interpretation of the phrase, and in the middle of the Second World War the House of Lords decided in the case of Amand v Home Secretary and Another  AC 147 that a wide approach should be taken to it, at least in the context of the Supreme Court of Judicature (Consolidation) Act 1925. Viscount Simon stated as follows:
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.
Amand involved extradition proceedings relating to a Dutch national who was wanted for desertion. The House of Lords concluded that the underlying proceedings were criminal in nature and that therefore the proceedings in the UK were in a criminal cause or matter. However, after Amand the case law became slightly confused, with Lord Denning in particular taking a different approach to the issue. In 2011, the situation was still unresolved, leading Lord Neuberger to note in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  1 WLR 3253 that the state of the law in this area was “less than satisfactory.”
The Administrative Court in Belhaj was therefore left to deal with this less than satisfactory state of affairs in order to decide whether the judicial review claim before it was in a criminal cause or matter. Having reviewed the case law it reached the conclusion that there was still no “real clarity”. However, the Court found that the phrase could mean different things in different legislative contexts. In other words, provisions dealing with CMP were not the same as provisions dealing with rights of appeal. Moreover, the contexts were so different that the principle of consistent interpretation derived from the case of Barras v Aberdeen Steam Trawling and Fishing Company Ltd  AC 402 did not apply. The Court also found that the JSA 2013 had been enacted with the aim of enabling a wide range of proceedings to take place that would not, in the absence of CMP, otherwise do so. Finally, the Court observed that there were no ongoing criminal proceedings and that the outcome of the civil claim would in no circumstances decide criminal liability. The Court concluded that the power under section 6 was a broad one, and that in that particular statutory context the category of proceedings “in a criminal cause or matter” was to be narrowly interpreted. The proceedings in Belhaj were found not to fall within that category and the judicial review claim can therefore proceed in secret under the CMP framework. However, this part of the case will likely end up in the Supreme Court, where the issue will no doubt be considered in somewhat greater detail.
Zubair Ahmad is a Special Advocate in the Belhaj litigation