R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Sullivan,Lord Justice Maurice Kay,Lord Justice McCombe |
| Judgment Date | 29 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1302,[2013] EWCA Civ 80 |
| Date | 29 October 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T3/2012/2074,Case No: T3/2012/2074(Z) |
[2013] EWCA Civ 1302
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(Toulson LJ and Silber J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay (Vice President of the Court of Appeal, Civil Division)
Lord Justice Laws
and
Lord Justice Sullivan
Case No: T3/2012/2074
Mr T Otty QC and Mr D Squires (instructed by Birnberg Peirce) for the Appellant
Mr J Swift QC and Mr A O'Connor (instructed by The Treasury Solicitor) for the Respondent
INTRODUCTION
This is an appeal, with permission granted in part by Sir Richard Buxton and in part by McCombe LJ, against the decision of the Divisional Court (Toulson LJ as he then was and Silber J) of 23 July 2012 ( [2012] EWHC Admin 2091) dismissing the appellant's claim for judicial review of the Secretary of State's decision in September 2005 to allow his name to be added to a list of persons subject to sanctions pursuant to United Nations Security Council Resolution 1617 of 2005. The decision had effect through the lifting or release of a "hold" earlier placed by the Secretary of State on the appellant's designation for inclusion in the list. I will explain the process below. The effect of designation has been to prevent the appellant, who is a United Kingdom resident, from using, receiving or gaining access to any funds or other economic resources without the leave of the State. It is however to be noted that since 2009 the United Kingdom has sought, unsuccessfully, to have the appellant's name taken off the list.
The appellant has permission to pursue his challenge in this court on three grounds. Ground 1 is that the correct standard of review of the decision is review on the merits, rather than the conventional rationality test ( Wednesbury [1948] 1 KB 223); and had that standard been applied, the Secretary of State's decision to lift the hold would have been exposed as irrational. Ground 2 is that the appellant's designation had been proposed for reasons which rested on evidence obtained by torture in Egypt; and in those circumstances it was the Secretary of State's duty to maintain the hold and so prevent the designation. Ground 3 is that the Secretary of State had supported the designation (by releasing the hold) because he determined that there were reasonable grounds to suspect that the appellant met the criteria for designation; but this was a legal error: to support the designation he must have been satisfied that the criteria were in fact met.
THE UNITED NATIONS SANCTIONS REGIME
The United Nations Security Council Al-Qaida and Taliban Sanctions Committee was established in 1999 by United Nations Security Council Resolution 1267. I shall refer to it as the Sanctions Committee. It consists of all the Member States of the Security Council for the time being. It holds a list, known as the Consolidated List, of members of the Al-Qaida organisation and other individuals, groups, undertakings and entities associated with them. Resolution 1267, and later resolutions extending or revising the regime, impose on Member States a mandatory duty under Chapter VII of the UN Charter to freeze the assets of individuals and organisations whose names appear on the list; Article 25 of the UN Charter records the Member States' agreement to "accept and carry out the decisions of the Security Council". Paragraph 4(b) of Resolution 1267 required the Member States to
"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."
Resolution 1617 was adopted on 29 July 2005. It included these 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 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."
The expression "associated with", appearing in the first sub-paragraphs of paragraphs 1 and 2 respectively of Resolution 1617, was first introduced into the scheme by Resolution 1333 adopted on 19 December 2000. The obligation imposed by paragraph 8(c) of 1333 opens with the words "to freeze without delay funds and other financial assets of Usama bin Laden and individuals and entities associated with him".
A decision to place an individual's name on the Consolidated List requires unanimity. When a listing request is made by a designating State, any member of the Sanctions Committee can ask for time to consider it. The request will then be placed on hold for a period of up to six months (or in exceptional circumstances for a further three months), after which the request will be treated as approved unless the member concerned has objected to the proposal. 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 (to whose role I will return below): see UN Security Council Resolution 1989 of 2011. In those circumstances unanimity is required to retain listing, subject to the possibility of referral to the Security Council itself.
Listing decisions of the Sanctions Committee were originally given effect in domestic law by the Al-Qaida and Taliban (United Nations Measures) Order 2002, purportedly made under the United Nations Act 1946. In Ahmed v HM Treasury [2010] UKSC 2, [2010] 2 AC 534 (to which the appellant was a party and of which I will give some account directly) the Supreme Court held that part of the 2006 Order which succeeded that of 2002 was ultra vires the Act. (I will refer to the Order, as did the Supreme Court, as the AQO.) However, the appellant's listing was continued by force of EC Regulation 881/2002, adopted in order to give effect to sanctions imposed by the Security Council within the European Community. On 8 April 2010 the Al-Qaida and Taliban (Asset-Freezing) Regulations 2010 came into effect. They establish a domestic law regime for the enforcement of Regulation 881/2002, in light of the Supreme Court's ruling in Ahmed.
Article 2.1 of EC 881/2002 provides:
"All funds and economic resources belonging to, owned, held, or controlled by a natural or legal person, entity, body or group listed in Annex I, shall be frozen."
Article 2.3 provides:
"Annex I shall consist of natural and legal persons, entities, bodies and groups designated by the UN Security Council or by the Sanctions Committee as being associated with the Al-Qaida network."
Article 7(c) (introduced in response to the decision of the European Court of Justice in Kadi v Commission, Cases C-402/05P and C-415/05P, 3 September 2008) makes provision for persons included in Annex I to present a request to the Commission for a statement of reasons. As soon as the Commission obtains a statement of reasons from the Sanctions Committee, it must communicate it to the person concerned, providing him with an opportunity to express his views. The Commission must then review the decision to include the person in Annex I and must forward those observations to the Sanctions Committee.
Security Council Resolution 1904 adopted in 2009 introduced into the UN sanctions regime the Office of the Ombudsperson. The resolution describes the Ombudsperson's role as follows:
"20 [The Security Council] [d]ecides 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."
The first Ombudsperson, Judge Kimberly Prost, is a senior jurist with wide-ranging experience in the fields of international counter-terrorism, human rights and sanctions regimes. She was appointed on 3 June 2010 and made her first report to the Security Council on 21 January 2011. In it she set out her...
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