Ahmed Sarkandi and Others v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean |
| Judgment Date | 11 July 2014 |
| Neutral Citation | [2014] EWHC 2359 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6593/13 |
| Date | 11 July 2014 |
[2014] EWHC 2359 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Bean
Case No: CO/6593/13
The Queen On the application of
Dinah Rose QC & Maya Lester (instructed by M Taher & Co) for the Claimants
Jonathan Swift QC, Robert Palmer & Caroline Stone (instructed by The Treasury Solicitor) for the Defendant
Angus McCullough QC and Ben Watson (instructed by the Special Advocates Support Office) appeared as Special Advocates
Hearing dates: 7th March 2014 (open) and 28 April 2014 (closed)
By a Decision (2010–413-CFSP) and a Regulation (961–2010) made on 26 th July 2010 the European Union Council of Ministers approved a package of international sanctions against Iran with a view to restricting or preventing what are described as "proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems". One of these measures is the freezing of the assets of designated entities and of individuals who are "senior members" of such entities. Islamic Republic of Iran Shipping Lines ("IRISL") was a designated entity.
By a further Decision (2011–783-CFSP) and Regulation (1245–2011), made on 1 December 2011 on the proposal of the UK Secretary of State for Foreign and Commonwealth Affairs, the Council added the names of the five claimants (among others) to the list of designated individuals. The proposal was made on the basis that each of the claimants was a "senior member" of IRISL. On 9 th February 2012 the claimants and others applied to the General Court of the European Union to annul the Decision and Regulation adding them to the list.
The claim before this court is not concerned with the lawfulness of the Council's decisions as such. That issue, a matter of European Union law, was determined in the claimants' favour by the General Court: firstly, in IRISL v Council on 16 September 2013, by holding the designation of IRISL unlawful; then, in Nabipour & Others v Council on 12 th December 2013, by holding the claimants' designation unlawful. Rather, this claim is concerned with the lawfulness of the actions of the Foreign Secretary in proposing what became the 2011 Decision and Regulations.
The claimants say that the fact of the Foreign Secretary having proposed the decision first become known to them in 2013. A letter before action on their behalf demanded that the Secretary of State should propose their removal from the list. By letter of 24 th April 2013 the defendant declined to do so.
The present claim was issued on 30 th May 2013. The principal remedy sought is a declaration that the proposal to list the claimants was unlawful. The case as pleaded also sought an order requiring the Secretary of State to propose to the Council that the claimants be de-listed without further delay (or in the alternative a declaration that he was obliged to make such a proposal), but since the decision of the General Court on 12 th December 2013 this relief is no longer necessary. The claimants also seek damages for the losses they had suffered as a result of the listing proposal. It was agreed that no assessment of those damages should take place unless and until liability has been decided in the claimants' favour, and should be heard in the Queen's Bench Division.
On 13 th August 2013, following consideration of the case on the papers, Dame Linda Dobbs, sitting as a judge of this court, granted permission for judicial review.
The application for a closed material procedure (CMP)
We are not yet at the stage of a hearing on the merits of the judicial review application. The Secretary of State has made an interlocutory application for a declaration under section 6(2) of the Justice and Security Act 2013 for an order that a closed material procedure ("CMP") can be used in this case. Section 6 of the 2013 Act, so far as material, provides:-
"(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which the 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…;
(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) or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following –
(i) The possibility of a claim for public interest immunity to the material …
(5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of proceedings (and an application under subsection (2) (a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).
(7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make or advise another person to make a claim for public interest immunity in relation to the material on which the application is based."
The Foreign Secretary has personally signed an open statement of reasons, served on the claimants' solicitors, in support of his application for a declaration under section 6(2). He seeks to rely not only on that, but also on a closed statement of reasons which has annexed to it "sensitive material" within the definition contained in section 6(11) of the 2013 Act, namely material the disclosure of which would be damaging to the interests of national security. I also have before me an open witness statement from Mr Ajay Sharma, Head of the Iran Section at the FCO. giving some limited information about the decision-making process which led to the proposal. There was no opposition by Dinah Rose QC for the claimants to the grant of permission under CPR 82.13(1) (a) to withhold the sensitive material and closed statement of reasons and witness statement from her clients and their legal representatives during the proceedings before me. Angus McCullough QC and Ben Watson have been appointed as special advocates to represent the claimants' interests in consideration of the closed material.
CPR 82.23 (4) provides that, where the Secretary of State has made an application under section 6(2) of the 2013 Act for a declaration, "the hearing of the application shall take place in the absence of the specially represented party and the specially represented parties' legal representative" [emphasis added], the specially represented party in this case being the claimants. It was common ground among the very experienced counsel before me that this rule cannot mean what it says. It must be read as meaning "the hearing of the application shall so far as necessary take place in the absence of the claimants, their lawyers and the public", and that this is only necessary when submissions are being made referring to the closed material.
It was agreed that the hearing on 7 th March 2014 should be in public when I would hear submissions on behalf of the claimants and the Secretary of State without reference to the closed material. I held a further hearing on 28 th April 2014 to hear submissions by the special advocates and by counsel for the Secretary of State on the closed material. On the same day redacted versions of the Secretary of State's closed skeleton argument and of the Special Advocates' response to it were served on counsel for the Claimants. Arrangements were made for a further hearing (on 13 June 2014) at which Ms Rose QC and Ms Lester could reply to this material, but in the event they were content to do so by way of written submissions, and the further hearing date was vacated.
Mr Sharma's evidence
Mr Sharma describes the decision-making process which is under attack in the present claim as follows:
"In July 2011 HMG began to identify potential entities and individuals for designation in preparation for a further round of EU sanctions. There was also a concern that effective sanctions were time critical due to the risk of Iran reaching a point in its nuclear capability where its progress would be irreversible. Four of the five shipping individuals (the exception being Mr Nabipour) were identified as potentially suitable for proposal to the EU Council on 28 July 2011.
Further research and collation of evidence in support of these designations continued through to early September 2011. Mr Nabipour was added to the list of proposed designees on 26 August 2011 following a routine cross-Whitehall meeting to review Iranian shipping developments.
On 8 September 2011, the proposal to list the Claimants was given initial consideration by the FCO. Further cross-Whitehall meetings were held on 6 and 12 October 2011 to discuss draft text of the justification for the designation proposals for each of the individuals on the full list.
A version of the list amended to reflect the approved unclassified text was sent to the FCO Iran team on 25 October 2011. On...
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