R (Maftah and another) v Secretary of State for the Foreign Office and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 14 November 2011 |
| Neutral Citation | [2011] EWHC 3014 (Admin) |
| Docket Number | Case No: CO/12543/2010, CO/10862/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2011 |
[2011] EWHC 3014 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Silber
Case No: CO/12543/2010, CO/10862/2009
CO/4684/2009, CO/11327/2008
Timothy Otty QC and Dan Squires (instructed by Birnberg Peirce and Partners) for the 1 st Claimant;
Timothy Otty QC and Dan Squires (instructed by Public Law Solicitors) for the 2 nd and 3 rd Claimants;
Timothy Otty QC and Kate Markus (instructed by Birnberg Peirce and Partners) for the 4 th Claimant
Jonathan Swift QC and Karen Steyn (instructed by Treasury Solicitor) for the Defendant
Hearing date: 6 October 2011
Further written submissions submitted by the claimants and the defendant on 7 and 14 October 2011 respectively
I. Introduction.
On 6 October 2011, I held a case management conference in which there were applications by Elmabruk Maftah, Abdulbaqi Mohammed Khaled and Abdulbasit Abdulrahim ("the claimants") for (a) orders that a preliminary issue should be tried in their respective claims, (b) disclosure to be ordered; and (c) the appointment of a special advocate. Issue (c) was not pursued, while issue (b) was stood over until the time when judgment is handed down on issue (a). I heard oral submissions solely on issue (a), but both parties wished to submit further material in writing which they duly did and to which I will refer. This judgment relates solely to issue (a).
The preliminary issue which all the claimants in the claims before me (other than Mr. Youssef) wished me to order was:-
"Whether the Secretary of State's decision to propose the relevant Claimant for listing by the UNSCR 1267 Committee was tainted by an error of law in that it proceeded on the basis that the relevant criteria for designation required only reasonable suspicion of relevant conduct, rather than evidence sufficient to establish such conduct to at least the civil standard of balance of probability."
Mr. Timothy Otty QC, counsel for the claimants accepts that there are only limited circumstances in which a preliminary issue can be ordered, but his case is that the preliminary issue in this case fulfils all the relevant conditions. Mr. Jonathan Swift QC counsel for the Secretary of State for Foreign Affairs ("the Secretary of State") contends that it would not be appropriate to order this or any other preliminary issue as those conditions are not satisfied.
II. The Background
Each of the four claimants challenges decisions taken by the Secretary of State when acting in accordance with the United Kingdom's obligations under the UN Charter and, in particular, its obligation to comply with resolutions made by the UN Security Council pursuant to Chapter VII of the UN Charter that established a system of economic sanctions directed to persons determined by a committee of the UN Security Council ("the 1267 Committee") to be members of Al Qaida or of groups associated with Al Qaida. The 1267 Committee is required by the UN Security Council to maintain a list of such persons, known as "the Consolidated List".
The claimants challenge decisions by the Secretary of State:-
(a) in the case of the 2 nd– 4 th claimants, to propose that the 1267 Committee add their name to the Consolidated List and to vote for their listing as a member of the 1267 Committee;
(b) in the case of Mr Youssef, as to how the United Kingdom (qua member of the 1267 Committee) should have voted on proposals made by other UN Member States; and
(c) in the case of all the claimants, on whether or not the United Kingdom should have made applications to the 1267 Committee that it should remove one or more names from the Consolidated List.
There is also in Youssef's case a challenge on the grounds that the Secretary of State acted unlawfully in failing to make an application to the EU Commission for it to remove Mr. Youssef's name from Annex 1 to Regulation (EC) 881, which is the means by which the EU has given effect (as part of EU law) to the international law obligations arising by reason of the relevant decisions of the UN Security Council. In each case, the challenges are brought by judicial review and they are directed to actions taken by the Secretary of State in the exercise of prerogative/common law powers or his alleged unlawful failures to use such powers.
The background to the claims of the claimants seeking the preliminary issue is that they all have ties to Libya with Mr Maftah being a Libyan National while Mr Khaled and Mr Abdulrahim are British Nationals of Libyan origin. They were nominated for listing by the 1267 Committee by the United Kingdom alone and on the basis of their alleged involvement in the Libyan Islamic Fighting Group ("LIFG"). The restrictions on these claimants have been lifted, but they contend that they should never have been listed. Mr Maftah claims that he was listed at the request of the Gaddaffi regime because of his historical opposition to it (see Secretary of State for Foreign and Commonwealth Affairs v Maftah and Khaled [2011] EWCA Civ 350 [7]).
The thrust of the challenge of these claimants to the decision of the Secretary of State to nominate them for listing and/or his refusal to delist them is that they were not and that they have never been involved in any form of terrorism. They also submit that in any event the decision to nominate them for designation by the 1267 committee was disproportionate and unnecessary given the ability of the Secretary of State to invoke the provisions of the Terrorism (United Nations Measures) Orders 2006.
In response, the Secretary of State submits that as a matter of fact each of the claimants met the criterion for designation when it occurred. The approach to the standard of proof taken by the Secretary of State was explained by Mr Robert Chatterton Dickson the Head of Counter Terrorism Department in the Foreign Office in a witness statement made on 7 August 2009 when he stated that:-
"The standard of proof for designation which has to be met is not set out in the relevant Security Council resolutions, although they make clear that designation and asset freezing are preventative in nature and as they are not reliant upon criminal standards set out under national law, a criminal standard of proof would be inappropriate. The FCO has adopted 'reasonable suspicion', as the most appropriate test in terms of assessing the criteria, drawing upon the judgments of the European Courts in the OMPI I and II cases, and the Court of Appeal in the A, K, M, Q and G v HMTcase. The 1267 Committee, in evaluating whether to remove a name from the Consolidated List, may consider whether it has been affirmatively shown that the individual or entity has severed allassociation with organisations on the consolidated list as decided in paragraph 14 of UNSCR 1735 (2006)."
It is this wording which forms the basis of the application for the preliminary issue because the claimants contend that the approach which was then apparently adopted by the Secretary of State was misconceived and flawed because the decision relied on by Mr Dickson which was that specified by the Court of Appeal in A, K, M, Q and G v Her Majesty's Treasury [2009] 3 WLR 25 in its decision of 30 October 2008 which was the law applicable at the time of Mr. Dickson's witness statement of 7 August 2009. As I will explain, an appeal against that decision was allowed by the Supreme Court in Ahmed & others v Her Majesty's Treasury & Others [2010] 2 AC 534, which is a decision which I will consider in paragraph 29ff below.
The reasoning of the claimants in seeking an order for the determination of the preliminary issue was explained in a written document served at my suggestion after the oral hearing and it was that:-
"The claimants contend that the Secretary of State's decisions in each of their cases to nominate each of them for listing by the UNSCR 1267 Committee and to support their listing by the Committee were tainted by an error of law in that they proceeded on the basis that the relevant criteria for designation required only reasonable suspicion of relevant conduct, rather than evidence sufficient to establish such conduct to the civil standard of balance of probabilities. The Secretary of State's decisions to nominate the claimants and support their being added to the United Nations Consolidated List were accordingly unlawful and are to be quashed ab initio."
Thus, it is said by Mr. Otty QC that it is appropriate that a preliminary issue should be ordered on the basis that if it were to be resolved in the claimants' favour, this would be capable of resolving all the issues in their claim, other than the quantification of damages due to them. So Mr Otty says this is consistent with the overriding objectives in CPR 1.1 in that it would facilitate disposal of the proceedings in a manner which would be proportionate, expeditious and fair.
Mr Swift contends that it is not appropriate to order a preliminary issue because the established requirements for such an issue have not been satisfied according to the established principles to which I now turn and which are not in dispute.
III. The Conditions for Ordering a Preliminary Issue
In Tilling v Whiteman [1980] AC 1 at 25C, Lord Scarman said:—
"Preliminary points of law are too often treacherous shortcuts. Their price can be, as here, delay, anxiety, and expense."
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