R Bhutta v Hm Treasury
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 27 June 2011 |
| Neutral Citation | [2011] EWHC 1789 (Admin) |
| Docket Number | CO/10839/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 June 2011 |
[2011] EWHC 1789 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/10839/2010
Mr John Jones appeared on behalf of the Claimant
Mr Angus McCullough QC and Miss Shaheen Rahman appeared as Special Advocates
Mr Tim Eicke QC and Mr Steven Gray appeared on behalf of the Defendant
I have to determine the disclosure requirements in two challenges to asset freezing directions made and renewed by HM Treasury against Ismail Bali Bhutta. A direction designating him under Article 4 of the Terrorism (United Nations Measures) Order 2009 was made on 18 September 2009. On 17 February 2010, that order having been quashed by the Supreme Court as ultra vires, HM Treasury notified Mr Bhutta that the direction would remain in place following the enactment of the Terrorist (Asset Freezing Temporary Provisions) Act 2010. On 15 October 2010 Mr Bhutta applied to set aside the direction. On 16 March 2011 HM Treasury renewed a final direction under Section 4 (2) of the Terrorist (Asset Freezing) Act 2010. On 3 May 2011 Mr Bhutta appealed against that renewal.
The directions as made and renewed froze all of Mr Bhutta's assets except for those which he was and is permitted to make use of by licence given by HM Treasury. The first challenge is brought under Section 63 of the Counter Terrorism Act 2008 and the second under Section 26 of the Terrorist Asset-Freezing Act 2010. Section 63 (2) and (3) of the 2008 Act provides:
"(2) Any person affected by the decision may apply to the High Court ….. to set aside the decision;
(3) In determining whether the decision should be set aside the court shall apply the principles applicable on an application for judicial review."
Section 26 (1) (b) and (2) of the 2010 Act provides:
"(1) This section applies to any decision of the Treasury -
…..
(b) to renew a final designation of a person …..
…..
(2) The designated person concerned may appeal against any such decision to the High Court ….. "
There are accordingly two different types of proceedings: one, a challenge on judicial review principles and another an appeal, but nothing turns upon that. The disclosure requirements cannot depend on the precise nature of the proceedings by which the challenge is brought. In each case Mr Bhutta's ground of challenge is that the direction should not have been given or renewed.
There is a difference which may—in some cases, possibly even this—prove material. The ground upon which the first challenged direction is made is that there were reasonable grounds to suspect that Mr Bhutta had engaged in a wide variety of terrorism-related activity. The direction was renewed on the ground that the Treasury had reasonable grounds to believe that he had been. But again, for the purposes of the disclosure regime, nothing turns on that difference.
Disclosure is controlled by statutory provisions. Section 28 (4) of the 2010 Act applies Sections 66 to 68 of the 2008 Act to an appeal under Section 26 of the 2010 Act. Accordingly the enabling legislation for the disclosure regime contained in CPR Part 79 is the same. It is that set out in Sections 66 and 67 of the 2008 Act. The relevant parts are as follows:
"66 …..
…..
(2) A person making rules of court must have regard to—
(a) the need to secure that the decisions that are the 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.
…..
(4) Rules of court may make provision -
(a) enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to proceed (or to any legal representative of that party);
(b) enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party)
….. "
Section 67:
"67 Rules of court about disclosure.
…..
(2) Rules of court must secure that the Treasury are required to disclose -
(a) material on which they rely;
(b) material which adversely affects their case; and
(c) material which supports the case of a party to the proceedings.
This is subject to the following provisions of this section.
(3) Rules of court must secure -
(a) that the Treasury have the opportunity to make an application to the court for permission not to disclose material otherwise than to -
(i) the court, and
(ii) any person appointed as a special advocate;
(b) that such an application is always considered in the absence of every party to the proceedings (and every party's legal representative);
(c) that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be contrary to the public interest;
(d) that, if permission is given by the court not to disclose material, it must consider requiring the Treasury to provide a summary of the material to every party to the proceedings (and every party's legal representative);
(e) that the court is required to ensure that such a summary does not contain material the disclosure of which would be contrary to the public interest.
…..
(6) 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 wording is in mandatory terms. The rules in fact contained in CPR Part 79 must secure "that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be contrary to the public interest". It provides an express power to the rule-maker so to draft the rules as to have regard to "the need" to secure that disclosures of information are not made where they would be contrary to the public interest.
CPR Part 79 gives effect to those rules although it contains a different provision for the two categories of challenge by judicial review and by appeal. The important features about disclosure are common to both. First of all, CPR Part 79.5 modifies the overriding objective. Secondly, CPR 79.25 permits the Treasury to apply for permission to the court to withhold material which should not be disclosed in the public interest. There follow detailed provisions setting out how that application is to be dealt with.
Until the decision of the Court of Appeal in Secretary of State for the Foreign Office and Commonwealth Affairs v Maftah and Khaled [2011] EWCA Civ 350 all who practise in this field would have understood that the requirements of Section 66, Section 67 and CPR Part 79 were to be read as if they were subject to the requirements of disclosure imported by Article 6 of the European Convention on Human Rights. That follows from the concession made on behalf of the Secretary of State in MB [2008] AC 440 that proceedings to challenge the making of a control order or its conditions were proceedings which were determinative of or decisive for civil rights and so attracted the protection of Article 6. The concession was reiterated in AF (No 3) [2009] WLR 74, and impliedly accepted in Bank Mellat v HM Treasury when the case was argued before me at first instance by Mr Swift QC for the Treasury. His argument was that because the impact upon the bank of the order in issue was indirect—it prohibited UK financial institutions from dealing with Bank Mellat, not Bank Mellat from dealing with its assets in the United Kingdom—so the impact of the order upon its undoubted civil rights was indirect and, applying the principle in Maaouia v France, did not accordingly attract the protection of Article 6. I ruled against that submission. My decision was upheld by the Court of Appeal which held also that the standard of disclosure that I had held to be required, with one qualification, was correct for the reasons I had given. The qualification was that the disclosure required must be such as to permit the bank to refute the allegation if it could, as well as, or as part of, giving effective instructions about it.
In Secretary of State for the Foreign Office and Commonwealth Affairs v Maftah and Khaled the decisions in issue were those of the Foreign Secretary to recommend to the Security Council 1267 Committee that the two respondents should be designated in an Al Qaeda or Taliban list and the subsequent failure of the Foreign Secretary effectively to secure the removal of their names from the list.
The argument advanced by Mr Swift, again for the Secretary of State, was, it seems, that although designation had a serious impact on the civil rights of the two respondents nevertheless that effect was indirect and furthermore resulted from the exercise of sovereign power by the Foreign Secretary (see paragraph 11 of the judgment of Lord Justice Sedley):
"The FCO's case is that the alleged infringement of Convention rights is at most a side-effect of what is in every material respect a challenge to the legality of the exercise of sovereign powers, and in no more than a marginal sense a vindication of civil rights ….. "
If the court's decision had simply accepted that distinction and applied it then it would have had no effect upon the approach to disclosure in asset-freezing cases in which the decision to make the direction was that of an element of the British Government—the Treasury. But that is not the basis upon which the court decided that Article 6...
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