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Freezing Terrorist Assets

Document Cited authorities 8 Cited in Related
AuthorBen Middleton
DOI10.1350/jcla.2010.74.3.634
Published date01 June 2010
Date01 June 2010
Supreme Court
Freezing Terrorist Assets
A v HM Treasury; R (on the application of Youssef) vHM Treasury;
HM Treasury v Al-Ghabra [2010] UKSC 2
Keywords Freezing; Terrorism; Finance; Human rights
In conjoined appeals, five appellants (G, A, K, M, and H) challenged the
lawfulness of Orders in Council created by the Treasury that were
designed to suppress and prevent the financing and preparation of acts
of terrorism. The Orders provided for the freezing, without limit of time,
of the funds, economic resources and financial services available to,
among others, persons who have been specifically designated. The
appellants, who had all been designated under the Terrorism (United
Nations Measures) Order 2006 (SI 2006 No. 2657) (hereafter referred to
as TO) and/or the Al-Qaida and Taliban (United Nations Measures)
Order 2006 (SI 2006 No. 2952) (hereafter referred to as AQO), were
deprived of all resources, which had the practical consequence of
preventing movement and travel. As Sedley LJ had stated in the Court
of Appeal ([2008] EWCA Civ 1187 at [125]), each was effectively a
prisoner of the State.
The power to create the orders lay in s. 1 of the United Nations Act
1946 which provides an executive power to make Orders in Council
outside the need for any parliamentary scrutiny and is in the following
terms:
If, under article 41 of the Charter of the United Nations . . . the Security
Council of the United Nations call upon His Majesty’s Government in the
United Kingdom to apply any measures to give effect to any decision of that
Council, His Majesty may by Order in Council make such provision as
appears to Him necessary or expedient for enabling those measures to be
effectively applied, including (without prejudice to the generality of the
preceding words) provision for the apprehension, trial and punishment of
persons offending against the Order. (emphasis added)
This power was used to give effect to resolutions of the United Nations
Security Council (SCR 1373 (2001)) in order to freeze the assets of a
number of individuals, regardless of the alternative freezing schemes
operable under Part 2 of the Anti-Terrorism, Crime and Security Act
2001, into which a rigorous system of safeguards had been incorporated,
or the availability of other primary legislation. Individuals could be
designated under art. 4 of the TO if the Treasury had reasonable grounds
for suspecting that the person is, or may be, a person who commits,
attempts to commit, participates in or facilitates the commission of acts
of terrorism. A person dealing with economic resources of a designated
individual would commit an offence under art. 7 of the TO, unless
licensed to do so by the Treasury. Under art. 3(1)(b) of the AQO, any
person designated by the Sanctions Committee of the United Nations
209The Journal of Criminal Law (2010) 74 JCL 209–213
doi:10.1350/jcla.2010.74.3.634

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