C v HM Treasury

JurisdictionEngland & Wales
JudgeMr Justice Cranston
Judgment Date05 August 2016
Neutral Citation[2016] EWHC 2039 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date05 August 2016
Docket NumberCase No: CO/2345/2015 and CO/3599/2016
Between:
C
Appellant
and
HM Treasury
Respondent

[2016] EWHC 2039 (Admin)

Before:

The Hon. Mr Justice Cranston

Case No: CO/2345/2015 and CO/3599/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Steven Powles and Megan Hirst (instructed by Ahmed & Co) for the Appellant

Steven Kovats QC and Steven Gray (instructed by the Government Legal Department) for the Respondent

Peter Carter QC (instructed by the Special Advocate Support Office) as Special Advocate

Hearing dates: 19 July, 20 July and 21 July 2016

Approved Judgment

Mr Justice Cranston

Introduction

1

The appellant appeals under section 26 of the Terrorist Asset-Freezing etc. Act 2010 ("the 2010 Act") against his original and his renewed designation. In February 2015 the appellant was designated pursuant to section 2 of the 2010 Act, and the designation was renewed on 11 February 2016 under section 4. It is convenient to consider both appeals alongside each other. The effect of the appellant's designation is that he is prohibited from dealing with his funds and economic resources, unless an exemption applies or where a licence has been granted by HM Treasury ("the Treasury"). Moreover, without a licence others are prohibited from dealing with him as regards financial matters. Apparently this is the first occasion on which a court has fully considered the Treasury's decision to designate.

2

The Treasury's case is based on the appellant's relationship with the organisation Al-Muhajiroun. It was founded in 1996 by Omar Bakri Muhammad, who was excluded from the UK and is now in Lebanon. Following this, Anjem Choudary, the appellant's brother, became the leader of ALM in the UK. ALM reformed in 2004 under the names Al-Ghurabaa and The Saved Sect, and in 2006 these were proscribed under the Terrorism Act 2000 ("the 2000 Act") on the basis of their promoting terrorism: 2006 SI No 2016. In 2010, 2011 and 2014 the Home Secretary laid further proscription orders against other organisations treated as alternative names for ALM: see 2010 SI No 34; 2011 SI No 2688; 2014 SI No 7612. All are covered by the term "ALM" in this judgment. Since 2014 the severity of the threat posed by ALM is assessed to have increased because of an oath of allegiance to the Islamic State of Iraq and the Levant ("ISIL") signed by Bakri, Anjem Choudary and others.

3

Although not considered a member of ALM, the basis for freezing the appellant's assets is that he was providing funds to ALM through employing its members in one of his businesses, which he was cross-subsidising, and allowing it to use one of his premises, 32 New Road, as its de facto headquarters, before it moved to other premises in East London, unconnected with him, in January 2015. In summary, the appellant contends (1) that the disclosed material is insufficient to support a reasonable belief that he is or has been involved in supporting ALM; and (2) that his designation is unnecessary, disproportionate, and in violation of his rights under Article 8 of the European Convention on Human Rights ("the Convention") and Article 1 of the First Protocol to the Convention.

4

There was open and closed material and I heard evidence and submissions in open and closed sessions during the course of the hearing. At the hearing, there was no outstanding argument by the special advocate in relation to disclosure of material from closed to open. In my view, the case can be decided without reference to the closed material and there is no need for any separate judgment apart from this one.

Legal framework

5

The Treasury's power of designation is contained in section 2 of the 2010 Act. So far as relevant to this case it provides as follows:

"(1) The Treasury may make a final designation of a person for the purposes of this Part if –

(a) they reasonably believe –

(i) that the person is or has been involved in terrorist activity,

(b) they consider that it is necessary for purposes connected with protecting members of the public from terrorism that financial restrictions should be applied in relation to the person.

(2) For this purpose involvement in terrorist activity is any one or more of the following –

(b) conduct that facilitates the commission, preparation or instigation of such acts, or that is intended to do so;

(c) conduct that gives support or assistance to persons who are known or believed by the person concerned to be involved in conduct falling within paragraph (a) or (b) of this subsection.

(3) It is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally.

(4) In this section –

"terrorism" has the same meaning as in the Terrorism Act 2000 (see section 1(1) to (4) of that Act);

and the reference in subsection (1)(b) above to financial restrictions includes a reference to restrictions relating to economic resources."

6

Thus there are three components to the Treasury making a final designation under section 2 of the 2010 Act: it must reasonably believe that the person is or has been involved in terrorist activity; it must consider that it is necessary for purposes connected with protecting members of the public from terrorism that financial restrictions should be applied to the person; and if both of these threshold criteria are met, it may decide to designate (it has a power but not a duty).

7

The concept of reasonable belief that an individual is, or has been, involved in terrorist activity, set out in section 2(1)(a)(i) of the 2010 Act, occurs as well in section 3(1) of Terrorism Prevention and Investigation Measures Act 2011 ("the TPIM Act" or "the 2011 Act"). In considering the latter section in Secretary of State for the Home Department v. CC and CF [2012] EWHC 2837 (Admin), [2013] 1 WLR 2171, Lloyd Jones LJ referred at paragraph [24] to the well known dictum of Laws LJ in A v. Secretary of State for the Home Department [2004] EWCA Civ 1123, [2005] 1 WLR 414 at paragraph [229]: "Belief is a state of mind by which the person in question thinks that X is the case. Suspicion is a state of mind by which the person in question thinks that X may be the case". Invoking the analysis of Neuberger LJ in A v. Secretary of State for the Home Department, and of Collins J in Secretary of State for Home Department v. BM [2012] EWHC 714 (Admin), Lloyd Jones LJ held that the standard of reasonable belief does not require proof of underlying facts to the standard of the balance of probabilities; it does not import any requirement of proof of involvement in any specific terrorist related activity to any higher standard than that which can properly give rise to a reasonable belief: [27]–[29] (appealed, but not on this point: [2014] EWCA Civ 559, [2014] 1 WLR 4240).

8

As to the requirement in section 2(1)(b) of the 2010 Act of the necessity of financial restrictions, guidance again comes from case-law considering other terrorism legislation. In giving the judgment of the Court of Appeal in Secretary of State for the Home Department v. MB [2006] EWCA Civ 1140, [2007] QB 415, a control order case, Lord Phillips CJ said:

"63 Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligations that it is necessary to impose may depend upon the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands on those resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance.

64 The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State…

65 Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive and, in such cases, the court should explore alternative means of achieving the same result."

Thus, what could be called the plain need for measure must be considered in context and in light of proportionality.

9

In CF v. Secretary of State for the Home Department [2013] EWHC 843 (Admin) Wilkie J considered the necessity and proportionality of various restrictions imposed under a TPIM notice on a person suspected of terrorism-related offences. After referring to the previous case law, he drew from it three principles: first, the graver the impact of the measure, the more compelling the justification needed and the greater care with which it must be examined; secondly, necessity is not to be equated with useful, reasonable or desirable; and thirdly, each measure has to be individually examined and the court will not too readily accept claims to be deferential bearing in mind that the Secretary of State will not have heard or read all the evidence before the court: [25]–[26]. Silber J adopted this analysis at paragraphs [11]–[13] of BF v. Secretary of State for the Home Department [2013] EWHC 2329 (Admin), another TPIM case.

10

In section 1 of the 2000 Act,...

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2 cases
  • Tam Sze Leung And Others v Commissioner Of Police
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 30 December 2021
    ...an interference with BOR 14 rights, particularly where the freeze is substantial or total, Mr Chan referred to C v HM Treasury [2016] EWHC 2039 (Admin) at §§86-87 and Ahmed v HM Treasury (Justice intervening) (Nos 1 and 2) [2010] 2 AC 534 at §§137, 196 and 241. In Ahmed, it was suggested th......
  • Tam Sze Leung And Others v Commissioner Of Police
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 30 December 2021
    ...an interference with BOR 14 rights, particularly where the freeze is substantial or total, Mr Chan referred to C v HM Treasury [2016] EWHC 2039 (Admin) at §§86-87 and Ahmed v HM Treasury (Justice intervening) (Nos 1 and 2) [2010] 2 AC 534 at §§137, 196 and 241. In Ahmed, it was suggested th......

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