R Youssef v Secretary of State for Foreign and Commonwealth Affairs

JurisdictionEngland & Wales
JudgeLord Justice Toulson,Mr Justice Silber
Judgment Date23 July 2012
Neutral Citation[2012] EWHC 2091 (Admin)
Docket NumberCase No: C0/12543/2010
CourtQueen's Bench Division (Administrative Court)
Date23 July 2012

[2012] EWHC 2091 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Toulson

and

Mr Justice Silber

Case No: C0/12543/2010

Between:
The Queen on the Application of Hany Youssef
Claimant
and
Secretary of State for Foreign and Commonwealth Affairs
Defendant

Mr Timothy Otty QC and Mr Dan Squires (instructed by Birnberg Peirce) for the Claimant

Mr Jonathan Swift QC and Mr Andrew O'Connor (instructed by Treasury Solicitor) for the Defendant

Hearing dates: 25–26 June 2012

Lord Justice Toulson
1

On 29 September 2005 the claimant's name was placed on a list of entities and individuals designated as associated with Al-Qaida by a committee of the United Nations Security Council, otherwise known as the 1267 Committee. I will refer to it as the Sanctions Committee. The effect of the listing was to freeze his assets and impose a travel ban. He remains on the list. The Sanctions Committee consists of all the member states of the Security Council for the time being. Decisions to list require unanimity. Decisions to de-list also require unanimity, except where a request to de-list is made by the designating state or states or where a recommendation to de-list has been made by the Ombudsperson (whose role is explained below). In those circumstances unanimity is required to retain listing, subject to the possibility of referral to by the Security Council itself. Since 2009 the UK has been attempting unsuccessfully to have the claimant de-listed.

2

In these judicial review proceedings the claimant challenges the legality of the Foreign Secretary's decision to agree to his listing in 2005. He also challenges the legality of the Foreign Secretary's omission since 2009 to pursue two courses of action which the claimant asserts that he ought to have taken with a view to freeing the claimant's assets.

3

The claimant's quest has already taken him once to the Supreme Court. The case is reported under the title Ahmed v HM Treasury [2010] UKSC 2, [2010] 2 AC 534. He won the case, but his victory has been of no practical benefit for reasons which will become apparent.

The UN sanctions regime

4

The Sanctions Committee was established by Security Council Resolution (SCR) 1267 (1999). The Security Council decided by paragraph 4 that all states shall:

"(b) Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the [Sanctions Committee], and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorised by the Committee on a case-by-case basis on the grounds of humanitarian need."

5

By Article 25 of the UN Charter member states agree to accept and carry out the decisions of the Security Council in accordance with the Charter.

6

Article 103 of the Charter provides:

"In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."

7

It was held by the House of Lords in R (Al-Jedda) v Defence Secretary [2007] UKHL 58, [2008] 1 AC 332, and recognised by the Supreme Court in Ahmed v HM Treasury, that resolutions of the Security Council therefore prevail over a member state's obligations under the European Convention on Human Rights.

8

The provisions of SCR 1267 have been repeated and supplemented in a series of further SCRs. At the time of the claimant's listing, the most recent resolution was SCR 1617 (2005). It included the following decisions:

"1. … that all States shall take the measures as previously imposed by paragraph 4(b) of Resolution 1267 (1999) [and later resolutions] with respect to Al-Qaida, Usama bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to resolutions 1267 (1999) and 1333 (2000) (the "Consolidated List")…

2. … that acts or activities indicating that an individual, group, undertaking, or entity is "associated with" Al Qaida, Usama bin Laden or the Taliban include:

- participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of;

- supplying, selling or transferring arms and related material to;

- recruiting for; or

- otherwise supporting the activities of;

Al-Qaida, Usama bin Laden or the Taliban, or any cell, affiliate, splinter group or derivative thereof."

9

Those provisions are repeated in the currently applicable resolution, SCR 1989 (2011), with the immaterial change that the Consolidated List has been renamed the Al-Qaida Sanctions List.

10

SCR 1904 (2009) introduced an independent Ombudsperson, whose role was described in this way:

"20 [The Security Council] Decides that, when considering delisting requests, the Committee shall be assisted by an Office of the Ombudsperson, to be established for an initial period of 18 months from the date of adoption of this resolution, and requests the Secretary-General, in close consultation with the Committee to appoint an eminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields, such as legal, human rights, counter-terrorism and sanctions, to be Ombudsperson, with the mandate outlined in annex II of this resolution, and further decides that the Ombudsperson shall perform these tasks in an independent and impartial manner and shall neither seek nor receive instructions from any government."

11

The appointment of the first Ombudsperson, Judge Kimberly Prost, was made on 3 June 2010. In her first report to the Security Council, dated 21 January 2011, Judge Prost set out her working methods and her approach to the standards to be applied when considering requests for de-listing:

" Approach

The Security Council has not defined separate criteria which must be met for de-listing to occur.

…it is evident from the relevant resolutions that the Committee, in reviewing a de-listing request, will consider all of the relevant circumstances, with a view to determining whether the individual continues to meet the criteria for listing set forth by the Security Council. In essence, the test for de-listing is the opposite of the test for listing. Therefore, in my view, the analysis and observations of the Ombudsperson should similarly focus on that question.

In addition, the Security Council has, in my opinion, unmistakably signalled that a de-listing decision will be a de novo one which looks at the circumstances, as they stand at the time of the de-listing request, to determine the appropriateness of a continued listing.

At the same time, it is obvious that any assessment of the totality of information at present would include the historical context of the listing and, in particular, the circumstances surrounding the original designation. It is also evident that in the context of a comprehensive analysis, the absence of recent information is in no way determinative. It is simply one factor which needs to be weighed and assessed on the basis of the particular circumstances in each case.

In conclusion, as the role of the Ombudsperson is to assist the Committee in its decision making process, the analysis conducted and observations provided should relate substantively to the question to be determined by the Committee – whether an individual or entity continues to meet the criteria for being included on the Consolidated List. To accomplish this, in my opinion, the analysis and observations of the Ombudsperson, as well as the principal arguments set out, should address, to the defined standard, whether today the continued listing of the individual or entity is justified based on all the information now available.

Standard

In aid of coherent analysis and observations from the Ombudsperson, the information gathered and the reasoning applied to it must be assessed to a consistent standard. This standard must be one which is appropriate to the unique context of decisions by a committee acting under the express direction of the Security Council. It must take into account the purely international framework, where the benchmark used cannot be premised on the precepts of one particular legal system or tradition. It must instead focus on concepts generally accepted as fundamental across legal systems. In order to arrive at an appropriate standard for the Ombudsperson to apply, I have looked to national and regional law and jurisprudence, particularly in the context of asset freezing or other restrictions in counter terrorism regimes…

The standard must also reflect the express intent of the Security Council with regard to the purpose of the sanctions namely "that the measures…are preventative in nature and are not reliant upon criminal standards set out under national law". At the same time, it must be a measure of adequate substance to sustain the serious restrictions imposed on individuals and entities through the application of the sanctions.

In this regard, it is evident that the standard applicable in criminal proceedings, nationally, regionally or internationally, is not appropriate for assessing the information and...

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