A challenge to the director of public prosecution’s refusal to charge the former MI6 officer Sir Mark Allen for his alleged role in rendition and torture must be heard in public, the high court has been told.

The extraordinary sequence of legal battles generated by the abduction of the Libyan dissident Abdel Hakim Belhaj in 2004 intensified on Thursday when senior lawyers clashed over whether a “criminal cause or matter” can be the subject of a civil court case.

Lawyers for the Foreign Office have argued that the judicial review of the DPP’s decision should be heard in secret under the terms of the 2013 Justice and Security Act, which allows matters of national security, albeit only in civil cases, to be heard behind closed doors.

Lawyers for Belhaj maintain that the DPP’s procedures are part of an exclusively criminal matter and therefore cannot be examined in secret under what is technically termed a “closed material procedure”.

James Eadie QC, for the Foreign Office, told the high court in London on Thursday that the phrase “criminal cause or matter” could mean different things, depending on the legislative context in which it appeared.



It was, he explained, a “chameleon concept” open to a number of different interpretations. In this case, it would allow the dispute to be heard in secret under a closed material procedure.



But Clare Montgomery QC, representing Belhaj, told the court in written submissions that because the decision not to charge Allen is a “criminal cause or matter” there is no authority to order a closed hearing under the 2013 Justice and Security Act.

Belhaj and his wife, Fatima Boudchar, who was pregnant when they were abducted from the far east in 2004, were forcibly transported to Muammar Gaddafi’s Libya, where he was tortured.



The operation was led by the CIA but involved MI6. Evidence of British involvement in their ordeal emerged in correspondence with Allen found inside the abandoned office of Moussa Koussa, Gaddafi’s foreign minister and former intelligence chief, after the regime fell in 2011.

Last June, after a four-year investigation by Scotland Yard that gathered 28,000 pages of evidence, the Crown Prosecution Service announced that it did not believe there were sufficient grounds for charging Allen, who had been head of counter-terrorism at MI6.



Lawyers for the human rights organisation Reprieve, on behalf of the Libyan victims, are challenging the DPP’s decision.



Montgomery told the high court: “The DPP [Alison Saunders] has given no intelligible reasons for the decision not to prosecute him. [Belhaj and his wife] seek to challenge that inadequately reasoned and legally flawed decision.



“What they want is for those involved in their mistreatment to be prosecuted and, if the evidence so bears, convicted for the harm done to them.” Denying victims justice, Montgomery added, contradicted the DPP’s “oft-stated views on how victims ought to be treated”.

John McGuiness QC, representing the DPP, told the court in written submissions that a decision not to prosecute is not “a criminal cause or matter” within the meaning of the Justice and Security Act 2013and can therefore be heard in a ‘closed material procedure’ from which the public, the media and the claimant’s lawyers will be excluded.



Judicial review proceedings, McGuiness argued, would “ordinarily” be civil proceedings. The issue in dispute, he added, is about the “commencement of the criminal matter”. Therefore “where criminal proceedings are not commenced that there is no criminal cause or matter”.



Allen has always denied any wrongdoing. The hearing continues.





