Gulam Mastafa v HM Treasury
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 13 December 2012 |
| Neutral Citation | [2012] EWHC 3578 (Admin) |
| Docket Number | Case No: PTA/10/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 December 2012 |
[2012] EWHC 3578 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: PTA/10/2012
Mr Dan Squires & Mr R Desai (instructed by Birnberg Peirce & Partners) for the Appellant
Mr Jonathan Swift Q.C. & Mr Steven Gray (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 28 November 2012
On 10 March 2011 and 8 March 2012 the Respondent determined that the Appellant, a British citizen, was a person it reasonably believed to be involved in terrorist activity and that it was necessary for purposes connected with protecting members of the public from terrorism that financial sanctions should be imposed on him. The power was exercised pursuant to the Terrorist Asset-Freezing etc Act 2010. S.2(1)(TAFA), which provides, so far as material:-
"The Treasury may make a final designation of a person for the purposes of this Part if—
(1) they reasonably believe—
(2) (i) that the person is or has been involved in terrorist activity…"
A final designation lasts for a period of one year but can be renewed, which is why there are two material designations in this case.
TAFA gives a right of appeal against the making of a final designation (TAFA s.26) and this court when dealing with such an appeal "may make such an order as it considers appropriate" (s.26(3)). There is an additional right to apply to the court to set aside any decision made by the Treasury in connection with their functions in dealing with designations, but in such an application the court is limited to giving relief or making an order such as may be given or made in judicial review proceedings.
The Appellant is appealing against both designations pursuant to s.26. On 1 June 2012 I directed that there should be the hearing of a preliminary issue to "determine the applicability of Article 6 [of the ECHR], the effect of Common Law on the Respondent's disclosure obligations and/or the scope of any disclosure requirements pursuant to Article 6/Common Law in the Appellant's appeal[s]".
Since almost inevitably designations will have been made after taking into account material which is not or may not be disclosable because to disclose it would be contrary to the public interest, TAFA provides for the use of Special Advocates who can argue an appellant's case in closed sessions. The regime in this respect is identical to that which was in force in dealing with Control Orders and is now in force in dealing with orders under the Terrorism Prevention and Investigation Measures Act 2011 (TPIMs). There is an obvious similarity between TPIMs and designations under TAFA (which I will refer to as an Asset Freezing Order) since each can only be made if there exists a reasonable belief that the person in question is or has been involved in terrorism and each is designed to protect the public from terrorism. Each produces serious constraints on the person's ability to live his life as he would normally expect and so interferes with his human rights. In the case of TPIMs, there is at least an interference with his Article 8 rights and in the case of Asset Freezing Orders, with his rights under Article 1 of the First Protocol to the ECHR. There may also be an interference with his Article 8 rights.
Mr Swift Q.C. on behalf of the Respondent contends that Article 6 does not apply to these appeals and that the scheme set up by TAFA precludes the application of any Common Law powers which might otherwise be considered to reflect what Article 6 provides for, namely that a fair hearing requires that the person adversely affected by a decision should know sufficient of the material relied on against him to enable him to refute or to explain that material. Mr Swift relies on a decision of the Court of Appeal, R(Maftah & Khaled) v SSFCO [2012] QB 477 which persuaded Mitting J in Bhutta v HM Treasury [2011] EWHC 1789 (Admin) to decide that neither Article 6 nor Common Law principles applied to appeals under s.26 of TAFA and so the Respondent could rely on all material of which the public interest prevented disclosure notwithstanding that the Appellant was unaware of and so unable to deal with some or all such material. Parliament, if that decision is correct, must be taken to have considered that the Special Advocate procedure provided a sufficient safeguard for an appellant.
Before considering the arguments material to the preliminary issue, I should refer briefly to the terms of the order made against the appellant. It is not necessary to set out why he has been designated and I simply note that he has denied any involvement in terrorism and has said that he is unable to answer the allegations, which are wide ranging, without more knowledge of why he has been designated.
Asset Freezing Orders were originally imposed following the making of Orders in Council pursuant to powers conferred by Section 1 of the United Nations Act 1946. They resulted from the obligations imposed on HMG by resolutions of the UN Security Council designed to suppress and prevent the financing and preparation of acts of terrorism. The relevant Order in Council which is now superseded by s.2(1)(a) of TAFA was challenged. I decided that it should be quashed and my decision was upheld by the Supreme Court: see Ahmed v HM Treasury [2010] 2 AC534. This led to TAFA. The impact of the regime under the Order in Council is described by Lord Hope in Ahmed in these terms ( [2012] 1 AC at p.611, Paragraph 4):-
"The orders provide for the freezing, without limit of time, economic resources and financial services available to among others, persons who have been designated. Their freedom of movement is not, in terms, restricted. But the effect of the Orders is to deprive the designated persons of any resources whatsoever. So in practice they have this effect. Persons who have been designated, as Sedley LJ observed in the Court of Appeal, are effectively prisoners of the State."
Some of the requirements have been varied so that the effect on family members is not so serious. So far as state benefits are concerned (and the appellant is dependent on such benefits), they can be paid to him, in which case he must account once a month for all daily expenditures, or they can be paid to his wife and he will receive a small weekly sum in cash. He has chosen to have the benefits paid to his wife and he receives £10 per week. That, I was told, was the sum applied for by his solicitor and was not a limit on the amount which might be authorised. In addition, he has funds in two bank accounts but they are frozen and he cannot use them. While it may be that to describe him as a prisoner of the State is to use a somewhat emotive term, it is nonetheless obvious that the designation has a profoundly damaging effect on his ability to live his life in a way which approaches normality and the interference with his rights under Article 1 of the First Protocol is serious indeed.
Mr Squires submits that there is no material distinction between designation under TAFA and Control Orders or, now TPIMs. Each is aimed at those who are reasonably believed to be terrorists and is intended to protect the public from terrorist acts. Thus the decisions of the House of Lords in Secretary of State for the Home Department v MB [2008] 1 AC440 and of the Supreme Court in Secretary of State for the Home Department v AF (No 3) [2010] 1 AC269 apply. In each, the applicability of Article 6 was recognised. Mr Squires submits that what he calls AF(No 3) disclosure is required. By this he means such disclosure as gives sufficient information to the appellant about the allegations against him to enable him to give effective instructions to the Special Advocate in relation to them.
TAFA s.28(4) applies ss.66 to 68 of the Counter Terrorism Act 2008 ( CTA). Schedule 7 of the CTA enables the Treasury to give a direction to any person operating in the financial sector designed to prevent the use of or making available funds for the purposes of terrorism. Sections 66 to 68 contain provisions about rules of court and the use of special advocates. Section 66(2) provides:-
"A person making rules of court must have regard to—
(a) the need to secure that the decisions that are subject of the proceedings are properly reviewed, and
(b) the need to secure that disclosures of information are not made where they would be contrary to the public interest."
Section 66(4) authorises the making of rules which enable "the proceedings to take place without full particulars of the reasons for the decisions…being given to a party .."
Section 67 deals specifically with rules about disclosure. It requires the rules to secure that the Treasury is able to apply to the court not to disclose material otherwise than to a special advocate or the court (s.67(3)). The court must prohibit any disclosure if it considers that such disclosure would be contrary to the national interest (s.67(3)(c)). If the court directs disclosure but the Treasury refuses, it cannot rely on that material in the appeal (s.67(5). Section 67(6)is important. It provides :-
"Nothing in this section, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with Article 6 of the Human Rights Convention."
The rules are contained in CPR Part 79. They follow the requirements of the Act.
In Bank Mellat v HM Treasury [2010] EWHC 350 (QB) Mitting J had to consider a direction against the bank. It was submitted on behalf of the...
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