Lord Alton of Liverpool v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Phillips of Worth Matravers |
| Judgment Date | 07 May 2008 |
| Neutral Citation | [2008] EWCA Civ 443 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2008 |
| Docket Number | Case No: 2007/9516 |
[2008] EWCA Civ 443
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
APPLICATION FOR PERMISSION TO APPEAL FROM
THE PROSCRIBED ORGANISATIONS APPEALS COMMISSION
AND IN THE MATTER OF THE PEOPLE'S MOJAHADEEN
ORGANISATION OF IRAN
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice Of England And Wales
The Right Honourable Lord Justice Laws and
The Right Honourable Lady Justice Arden
Case No: 2007/9516
Jonathan Swift, Gemma White and Oliver Sanders (instructed by Treasury Solicitor) for the Applicant
Nigel Pleming QC, Mark Muller QC and Edward Grieves (instructed by Bindman & Partners) for the Respondent
Special Advocates: Andrew Nicol QC and Martin Chamberlain
Hearing dates: 18th, 19th and 20th February 2008
This is the judgment of the Court.
Introduction
On 29 March 2001 the Terrorism Act (Proscribed Organisations) (Amendment) Order 2001 ('the 2001 Order') came into force. This added an organisation then described as the Mujaheddin-e-Khalq, but known in these proceedings as the People's Mojahadeen Organisation of Iran ('PMOI'), to the list of proscribed organisations in Schedule 2 of the Terrorism Act 2000 ('TA 2000').
Pursuant to section 4(1) TA 2000, PMOI made applications to be removed from the list on 5 June 2001 and 13 March 2003. Both applications were refused by the Secretary of State for the Home Department ('the applicant'). A third application was then made by the respondents, who are thirty five members of the two Houses of Parliament, on 13 June 2006. Their application was also refused by the Secretary of State on 1 September 2006.
The respondents appealed against this refusal to the Proscribed Organisations Appeals Commission ('POAC'). POAC allowed their appeal on 30 November 2007, determining that PMOI was not an organisation which 'is concerned in terrorism' for the purposes of section 3 TA 2000.
POAC refused an application for permission to appeal and the Secretary of State renewed the application before us. We invited Mr Jonathan Swift, who appeared for her, to support her application by fully developing the grounds of appeal that he sought to advance, so that we could deal simultaneously with the application and, if we granted the application, with the appeal.
This appeal relates to POAC's review of the decision taken by the Secretary of State. That decision was not taken by the applicant herself, but by or on behalf of her male predecessor in office. We shall for simplicity refer to the applicant and to her predecessors, including the decision taker, indivisibly as 'she'.
The statutory provisions
The relevant sections of the TA 2000 provide as follows:
“ 1. Terrorism: interpretation
(1) In this Act “terrorism” means the use or threat of action where ——
(a) The action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it ——
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
3. Proscription
(1) For the purposes of this Act an organisation is proscribed if-
(a) it is listed in Shedule 2, or
(b) it operates under the same name as an organisation listed in that Schedule.
(2) Subsection (1) (b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule.
(3) The Secretary of State may by order-
(a) add an organisation to Schedule 2;
(b) remove an organisation from that Schedule;
(c) amend that Schedule in some other way.
(4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism.
(5) For the purposes of subsection (4) an organisation is concerned in terrorism if it –
(a) commits or participates in acts of terrorism,
(b) prepares for terrorism,
(c) promotes or encourages terrorism, or
(d) is otherwise concerned in terrorism.
4. Deproscription: application.
(1) An application may be made to the Secretary of State for an order under section 3( 3) or (8)-
(a) removing an organisation from Schedule 2, or
(b) providing a name to cease to be treated as a name for an organisation listed in that Schedule.
(2) An application may be made by-
(a) the organisation, or
(b) any person affected by the organisation's proscription or by the treatment of the name as a name for the organisation.
(3) The Secretary of State shall make regulations prescribing the procedure for applications under this section.
(4) The regulations shall, in particular –
(a) require the Secretary of State to determine an application within a specified period of time, and
(b) require an application to state the grounds on which it is made.
5. Deproscription: appeal.
(1) There shall be a commission, to be known as the Proscribed Organisations Appeal Commission.
(2) Where an application under section 4 has been refused, the applicant may appeal to the Commission.
(3) The Commission shall allow an appeal against a refusal to deproscribe an organisation or to provide for a name to cease to be treated as a name for an organisation if it considers that the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review.
(4) Where the Commission allows an appeal under this section, it may make an order under this subsection.
(5) Where an order is made under subsection (4) in respect of an appeal against a refusal to deproscribe an organisation, the Secretary of State shall as soon as is reasonably practicable-
(a) lay before Parliament, in accordance with section 123(4) the draft of an order under section 3(3)(b) removing the organisation from the list in Schedule 2, or
(b) make an order removing the organisation from the list in Schedule 2 in pursuance of section 123(5).
6. Further appeal
A party to an appeal under section 5 which the Proscribed Organisations Appeal Commission has determined may bring a further appeal on a question of law to
(a) The Court of Appeal, if the first appeal was heard in England and Wales”
PMOI
PMOI is an Iranian political organisation founded in 1965. It is a member of the National Council of Resistance of Iran ('NCRI'), which is not proscribed in the UK. Its initial purpose was to oppose the government of the Shah of Iran. Its present stated purpose is the replacement of the theocracy which succeeded that government with a democratically elected secular government in Iran.
Following the overthrow of the Shah in 1979 PMOI came into conflict with the government led by the Ayatollah Khomeini. PMOI members went into exile, initially in France and, from 1986, in Iraq, which was by then at war with Iran. There they were principally located in Camp Ashraf, where they maintained an armed force, the National Liberation Army. PMOI lent military support to their hosts during that war, and thereafter continued to carry out and claim credit for numerous attacks against Iranian targets.
The respondents claim that in June 2001, at an Extraordinary Congress in Iraq, PMOI decided to put an end to its military activities. It has since pursued a campaign to legitimise its status as a peaceful democratic movement and has attracted support in this aim from the respondents. PMOI remained armed until the invasion of Iraq by coalition forces in March 2003. At that date Camp Ashraf was surrounded and a large arsenal of weapons was surrendered by agreement.
PMOI has since May 2002 been on the European Union list of terrorist organisations subject to an EU-wide assets freeze. It has also been designated by the US government as a Foreign Terrorist Organisation.
The Iranian government remains hostile to PMOI. In August 2002 the NCRI publicised detailed allegations of Iran's programme for the acquisition of nuclear weapons.
Proscription of PMOI
In her covering letter to Parliament with the draft 2001 Order the Home Secretary set out the criteria applied in her decision to seek proscription of PMOI as an organisation she believed was 'concerned in terrorism'. While acknowledging that PMOI did not pose a specific threat to the UK, or to British nationals overseas, or have a presence in the UK, she had based her decision on the nature and scale of the PMOI's activities and the need to support other members of the international community in the global fight against terrorism.
The first application to deproscribe PMOI was made on 4 June 2001 and rejected by the applicant on 31 August 2001. The decision was the subject of an application for judicial review. That application was refused by Richards J on 17 April 2002 on the basis that the appropriate venue for determining the issue was POAC. An appeal was then made to POAC and was due to be heard in June 2003. On 13 March 2003 PMOI made a second application for deproscription, which relied in addition on the surrender of arms to the coalition forces in Iraq. This application was refused on 11 June 2003. In the same month the appeal to POAC was...
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