R (Kurdistan Workers' Party and Others) v Secretary of State for the Home Department; R (on the application of Ahmed) v Secretary of State for the Home Department; R (on the application of the People's Mojahedin Organisation of Iran) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 17 April 2002 |
| Neutral Citation | [2002] EWHC 644 (Admin) |
| Docket Number | Case Nos: CO/2587/2001, CO/4039/2001 and CO/878/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 April 2002 |
[2002] EWHC 644 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Richards
Case Nos: CO/2587/2001, CO/4039/2001 and CO/878/2002
Mr Ben Emmerson QC and Mr Mark Muller (instructed by Birnberg Peirce & Partners) for the Claimants in the first claim
Lord Lester of Herne Hill QC, Mr Rabinder Singh QC and Mr Dan Squires (instructed by Bindman & Partners) for the Claimants in the second claim
Miss Helen Mountfield (instructed by Oldham Citizens’ Advice Bureau) for the Claimant in the third claim
Mr Philip Sales and Mr Jonathan Swift (instructed by The Treasury Solicitor) for the Defendant in all three claims
The court has before it three separate claims challenging the proscription of organisations under the Terrorism Act 2000 (“the 2000 Act”) and the compatibility of provisions of the Act with the Human Rights Act 1998. In each case I am concerned with whether to grant or refuse permission to apply for judicial review. The argument before me was far more extended, however, than is usual on a permission application. In the event I have decided to refuse permission in respect of all three claims; but my judgment is likewise fuller than is usual on a permission application, owing to the importance of the issues involved and the likelihood that they will be ventilated further in the Court of Appeal.
In brief, the organisations concerned are the People's Mojahedin Organisation of Iran (“the PMOI”), the Kurdistan Workers’ Party or Partiya Karkeren Kurdistan (“the PKK”) and Lashkar e Tayyabah (“the LeT”). Each was proscribed by virtue of the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 (“the 2001 Order”). In each case the claims include a challenge to the lawfulness of the proscription and to the lawfulness of the regime of offences laid down by the 2000 Act.
I think it helpful to start with a description of the statutory framework and the factual history, before looking more closely at the individual claimants and their claims and at the specific issues relevant to the grant or refusal of permission. In considering the claimants and their claims, I shall take them in the order in which, by agreement, counsel addressed me at the hearing.
Statutory framework
Section 1 of the 2000 Act defines “terrorism” in broad terms:
“(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 to intimidate the public or a section of the public, and
(c) the use or threat is made for the purposes 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 disrupt an electronic system.
(3) The use of threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section —
(a) ‘action’ includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) ‘the government’ means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”
Schedule 2 contains a list of proscribed organisations. By s.3 the Secretary of State is given a discretionary power to amend the schedule, subject to approval by affirmative resolution of each House of Parliament. Thus s.3(3)-(5) provides:
“(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.”
The requirements for an Order under s.3(3) to be made by statutory instrument and for a draft of the Order to be laid before and approved by resolution of each House of Parliament are to be found in s.123(1) and (4). There is provision in s.123(5) for an Order to be made without a draft having been approved if the Secretary of State is of the opinion that it is necessary by reason of urgency. In that event the Order shall cease to have effect after 40 days unless by then a resolution approving it has been passed by each House.
By s.4 an application may be made to the Secretary of State for the exercise of his power under s.3(3)(b) to remove an organisation from Schedule 2, i.e. an application for deproscription. Such an application may be made by the organisation itself or by any person affected by the organisation's proscription. The Proscribed Organisations (Applications for Deproscription) Regulations 2001, made under s.4(3), lay down the procedure for applications to the Secretary of State and provide inter alia that he is to determine an application within 90 days from its receipt.
By s.5 an applicant whose application under s.4 has been refused may appeal to the Proscribed Organisations Appeal Commission (“POAC”). The powers of POAC and the consequences of its allowing an appeal are set out in s.5(3)-(5):
“(3) The Commission shall allow an appeal against a refusal to deproscribe 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 by or in respect of an organisation, it may make an order under this subsection.
(5) Where an order is made under subsection (4) 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).”
The constitution and procedure of POAC are laid down in Schedule 3 and in the Proscribed Organisations Appeal Commission (Procedure) Rules 2001, made under paragraph 5 of Schedule 3. The rules make provision inter alia for the appointment of a special advocate to represent the interests of the appellant in the proceedings, in particular in any proceedings from which the appellant and his representative are excluded (rule 10). They also enable POAC to consider all the evidence upon which the Secretary of State relies in support of his grounds for opposing the appeal, including evidence that by statute or on general grounds of public interest cannot be disclosed to the appellant or his representative, with the POAC sitting in private for that purpose, and evidence that would not be admissible in a court of law (see in particular rules 21–22). By s.18(1)(f) of the Regulation of Investigatory Powers Act 2000 the normal prohibition on the receipt of evidence based on intercepted communications does not apply to POAC.
It should also be noted that by the Proscribed Organisations Appeal Commission (Human Rights Act Proceedings) Rules 2001, POAC is the appropriate tribunal for the purposes of s.7 of the Human Rights Act in relation to any proceedings under s.7(1)(a) against the Secretary of State in respect of a refusal by him to exercise his power of deproscription under s.3(3)(b).
By s.6 of the 2000 Act, a party to an appeal determined by POAC under s.5 may bring a further appeal on a question of law to the Court of Appeal, but only with the permission of POAC or, where POAC refuses permission, the Court of Appeal.
Section 7 deals with the situation where there has been a successful appeal to POAC under s.5 but a person has been convicted in the meantime of an offence under any of ss.11–15, 15–19 and 56. In summary, provided that the activity to which the charge referred took place on or after the date of the refusal to deproscribe against which the successful appeal under s.5 was brought, the person convicted is entitled to appeal and to have his appeal allowed.
That brings me to the offences that apply in relation to a proscribed organisation. In brief, and without detailing the various qualifications and defences:
i) By s.11 a person commits an offence punishable by up to 10 years’ imprisonment if he belongs or professes to belong to a proscribed organisation.
ii) By s.12 a person commits an offence punishable by up to 10 years’...
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