R (Khaled) v Foreign & Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 23 July 2010 |
| Neutral Citation | [2010] EWHC 1868 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/11327/2008 |
| Date | 23 July 2010 |
[2010] EWHC 1868 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Keith
Case Nos: CO/11327/2008
CO/4684/2009
Mr Dan Squires (instructed by Public Law Solicitors) for the Claimants
Mr Jonathan Swift QC (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 25 June 2010
Mr Justice Keith:
Introduction
The claimants come from Libya. They live in the UK. They were both named on a list maintained by a committee of the Security Council of the United Nations of individuals and entities associated with Al-Qaida, Usama bin Laden and the Taliban. They both issued claims of judicial review of various decisions of the Secretary of State for Foreign and Commonwealth Affairs which resulted in the inclusion of their names on the list, and in their names remaining on the list despite a change of view on the part of the Secretary of State about the circumstances which had caused their names to be on the list in the first place. Permission to proceed with the claims challenging some, but not all, of those decisions was granted by Mitting J without a hearing. He refused permission to proceed with the claims challenging the rest of those decisions, and the claimants asked the court to reconsider Mitting J's conclusions at a hearing. This is the court's judgment following that hearing.
The second of the two claimants, Elmabruk Maftah, was granted anonymity when his claim was first considered by the court, and he was referred to as EM after that. However, following the judgment of the Supreme Court on the application made by Guardian News and Media Ltd in H M Treasury v Ahmed [2010] UKSC1, the order for anonymity was discharged. No application for anonymity was ever made by the other claimant, Abdulbaqi Mohammed Khaled.
This judgment also addresses another issue. Mitting J ordered a preliminary hearing “to determine whether Art. 6 [of the European Convention on Human Rights] applies to these proceedings”. The issue is whether the eventual hearing of the claimants’ claims will involve “the determination of [their] civil rights and obligations” within the meaning of Art. 6(1). Subject to one reservation, this is an important issue, because if it does and Art. 6 is thereby engaged, the claimants say that, following A v The United Kingdom (2009) 49 EHRR 29 and the House of Lords’ reading of it in Secretary of State for the Home Department v AF, AW and AE [2009] 3 WLR 74, Art. 6 requires them to be provided with the allegations originally made against them in sufficient detail to enable them to give instructions to their special advocates so that those allegations can be challenged effectively. The reservation is that even if Art. 6 is not engaged, procedural fairness may require the claimants to be provided with the same information as if Art. 6 had been engaged: see, for example, The Home Office v Tariq [2010] EWCA 462 (Civ) at [50].
The relevant background
The Security Council of the United Nations has established a scheme of economic sanctions designed to remove or at least reduce the threat to international peace and security posed by Al-Qaida, Usama bin Laden and the Taliban. A committee comprising all the members of the Security Council – known as the Sanctions Committee or the 1267 Committee (because it was resolution 1267 (1999) of the Security Council which created the committee) – is required to identify those persons and entities who are associated with Al-Qaida, Usama bin Laden or the Taliban. The names of those persons and entities are contained in a list maintained by the Sanctions Committee known as the Consolidated List. As a matter of international law, all members states of the United Nations, including the UK, are required to apply the sanctions identified by the Security Council against each person and entity named on the Consolidated List.
Whether or not a person's name is included on the Consolidated List is a decision for the Sanctions Committee following a request by the diplomatic authorities of a member state. Decisions of the Sanctions Committee are reached by consensus, i.e. unanimity is required. Whether or not a person's name is removed from the Consolidated List is also for the Sanctions Committee to decide, though such a request may be made either by the individual himself or by the diplomatic authorities of the state of his nationality or residence. Such decisions are also reached by consensus. In the absence of consensus within the Sanctions Committee, the request is referred to the Security Council itself, which will decide on the request in accordance with its usual rules, i.e. nine affirming votes and no veto by any of the five permanent members of the Security Council.
On 18 January 2006, the Foreign and Commonwealth Office (“the FCO”) requested the inclusion of Mr Khaled's name on the Consolidated List. The Sanctions Committee decided on 7 February 2006 to add his name to the Consolidated List, with the UK voting in favour of its inclusion on it. In Mr Maftah's case, the date on which the FCO requested the inclusion of his name on the Consolidated List was 14 October 2008. The Sanctions Committee decided on 21 October 2008 to add his name to the Consolidated List, again with the UK voting in favour of his inclusion on it. The claimants say that the only information which the Sanctions Committee was provided with about the claimants was (a) that Mr Khaled was a member of the Libyan Islamic Fighting Group (“the LIFG”), whose leader in the UK had been convicted of an offence under the Terrorism Act 2000, and was a director of an international charity linked to the LIFG, and (b) that Mr Maftah was an associate, amongst others, of senior members of the LIFG in the UK and had been involved in fund-raising activities for it.
There were a number of consequences of the inclusion of the claimants’ names on the Consolidated List:
(i) The British Government was required to take measures to freeze the claimants’ assets pursuant to various previous resolutions of the Security Council. One of the ways in which the British Government had sought to give effect to these resolutions was to make the Al-Qaida (United Nations Measures) Order 2006 (“the Al-Qaida Order”), an Order in Council made under section 1 of the United Nations Act 1946. Pursuant to the Al-Qaida Order, the claimants were subjected to a draconian financial sanctions regime which froze their assets and made it a criminal offence for anyone to provide them with money or resources of any value. From the date of the inclusion of their names on the Consolidated List, the claimants became subject to the restrictions contained in the Al-Qaida Order by virtue of Art. 3(1) of the Al-Qaida Order.
(ii) When the Sanctions Committee decides to add someone's name to the Consolidated List, the Commission of the European Union has to decide whether to add that person's name to Annex 1 to Council Regulation (EC) No. 881/2002 (“the EC Regulation”). That is the effect of Art. 7a.1 of the EC Regulation. The Commission decided to add the names of the claimants to Annex 1. As a result of these decisions, the claimants became subject to the restrictions contained in Art. 2 of the EC Regulation. These restrictions were not dissimilar to those imposed under the Al-Qaida Order, but they did not include criminal sanctions for breach of the asset-freezing provisions.
(iii) The inclusion of the names of the claimants on the Consolidated List meant that their names were added to a publicly accessible UN website. That resulted in the inclusion of their names on the Consolidated List being reported by a number of Arabic language websites and becoming known to members of their families, as well as the communities from which they came in Libya and elsewhere. The fact that they have been publicly named as associates of Al-Qaida is said to have had a detrimental effect on their reputations, and to have resulted in people treating them differently, and in some cases not wishing to have any contact with them at all.
In the interests of completeness, I should add two things. First, there was, in addition to the Al-Qaida Order, another domestic financial sanctions regime. That was the regime under the Terrorism (United Nations Measures) Order 2006 (“the Terrorism Order”). That imposed a similar financial sanctions regime to that applicable under the Al-Qaida Order, even though the persons to whom the regime applied were not among those whose names were included in the Consolidated List. Secondly, Art. 3(1)(b) of the Al-Qaida Order was quashed by the Supreme Court on 4 February 2010 in Ahmed v H M Treasury [2010] 2 WLR 37 Following that decision, the Al-Qaida and Taliban (Asset-Freezing) Regulations 2010 were made which provided enforcement provisions in aid of the financial sanctions contained in the EC Regulation.
On 4 November 2009, the FCO requested the Sanctions Committee to remove the names of the claimants from the Consolidated List. The FCO did so because by then it was thought that the LIFG was no longer (or perhaps had never been) associated with Al-Qaida or terrorism-related activities. That, at any rate, is what the FCO claims. The claimants’ case is that the FCO should instead have sought the removal of their names from the Consolidated List on the basis that they had never been involved in, or associated with people who had been...
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