A v HM Treasury (Nos 1 &2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 24 April 2008 |
| Neutral Citation | [2008] EWHC 869 (Admin) |
| Docket Number | Case No: PTA 13, 14, 15, 17 & 19/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 April 2008 |
[2008] EWHC 869 (Admin)
Mr Justice Collins
Case No: PTA 13, 14, 15, 17 & 19/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tim Owen, Q.C. &Mr Dan Squires (instructed by Birnberg Peirce) for the Applicants, A, K & M & (instructed by Public Law Solicitors) for the Applicant Q
Mr Rabinder Singh, Q.C. &Mr Richard Hermer (instructed by Tuckers) for the Applicant G
Mr Jonathan Crow, Q.C. &Mr Andrew O'Connor (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 8 & 9 April 2008
Judgment Approved by the court for handing down (subject to editorial corrections)
All five applicants have been subjected to freezing orders over their assets in accordance with the Terrorism (United Nations Measures) Order 2006 (2006 No.2657) (the TO). In G's case, there is also an order against him by virtue of the Al-Qaida and Taliban (United Nations Measures) Order 2006 (2006 No. 2952) (the AQO). Each order contains a provision (Article 5(4)) whereby;-
"The High Court … may set aside a direction on the application of —
(a) the person identified in the direction, or
(b) any other person affected by the direction."
The applications before me are made under those Articles. However, as will become apparent, in G's case he cannot rely on Article 5(4) of the AQO and so his application will have to be changed to a claim for judicial review of the direction made against him. Although this was not raised in the course of the hearing, Mr Crow, Q.C. did not seek to contend that G should not have any remedy if there was one available simply because he had relied on Article 5(4). Accordingly, I propose to treat the application as if it were a claim for judicial review, grant permission, dispense with all requirements of CPR 54 and reach a decision on the merits of the claim.
The hearing before me resulted from an order I made by consent setting out a number of preliminary issues which should be determined. These are:-
"Schedule of Issues for Preliminary Determination
A. Under the Terrorism (United Nations Measures) Order 2006
1. Is the Order ultra vires the United Nations Act 1946 and/or incompatible with Convention rights enjoyed under Schedule 1 of the Human Rights Act and/or unlawful by reference to the principle of legality?
2. Is it lawful to apply the Special Advocate procedure to applications under Article 5(4) of the Order?
3. Where a party is challenging a designation to Article 5(4) of the Terrorism Order, is the burden of proof on the Applicant to demonstrate that the designation should be set aside, or does the burden of proof rest upon the Respondent to demonstrate the existence of threshold conditions for designation?
4. On a hearing of an application under Article 5(4) of the Terrorism Order, what is the applicable standard of proof?
5. What is the role of the High Court, and the test to be applied by it, when determining an application under Article 5(4)?
B Under the Al Qaida and Taliban (United Nations Measures) Order 2006
1. Does the Court have any power to set aside a designation made under Article 3(1)(b) of the Order?
2. If the Court has no such power under Article 5(4), does it have any other power to set aside such a designation?
3. As per issues A1–5."
In argument, they were expanded to cover a general attack upon the lawfulness of each order and upon the freezing orders and more particularly upon the criminal offences created by the Orders which could be committed by those who were aware that an individual was subject to a freezing order.
Both Orders were made under powers conferred by s.1 of the United Nations Act 1946. This provides, so far as material:-
"(1) If, under Article forty-one of the Charter of the United Nations signed at San Francisco on the twenty-sixth day of June, nineteen hundred and forty five (being the Article which relates to measures not involving the use of armed force) the Security Council of the United Nations call upon His Majesty's Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order …
(4) Every Order in Council made under this Section shall forthwith after it is made be laid … before Parliament."
It is to be noted that, although it must be laid before Parliament, there is no procedure which enables Parliament to scrutinise or to amend any Order, although no doubt an individual Member could seek to initiate a debate if he or she felt that an Order was unsatisfactory. Each order was laid before Parliament the day after it was made and came into force on the following day.
Article 41 of the Charter of the United Nations provides:-
"The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to the decisions, and it may call upon its Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations."
It is necessary to read Article 41 in the context of the purposes of the UN, which by Article 1 include achieving international cooperation in solving international problems and "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion". (Article 1.3). Article 25 provides:-
"The Members of the UN agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."
Article 39, which introduces Chapter VII, provides that it is for the Security Council to determine the existence of any threat to the peace, breach of the peace or an act of aggression and to decide what measures shall be taken in accordance with Articles 41 and 42 (which deals with more positive action if that under Article 41 is or has proved inadequate) to maintain or restore international peace and security. Finally, Article 103 provides:-
"In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
I come now to the resolutions of the Security Council which have led to the Orders. The TO is based on two Resolutions. The first is 1373/2001 which decides (Paragraph 1) that all States shall:-
"(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalise the wilful provision or collection by any means, directly or indirectly, of funds by their nationals or in the territories with the intention that their funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities.
(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons."
Paragraph 2(d) requires all States to 'prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens.'
Resolution 1452/2002 applies to the regime which has led to the AQO and not directly to that which has resulted in the TO. However, advice has been given that a similar regime should apply. It provides that financial assets or economic resources which have been determined by the State to be
"(a) necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums and public utility charges, or exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources."
should not be frozen.
This is subject to notification to the UN Committee by the State in question of its intention to authorise and to the Committee not objecting within 48 hours. Paragraph 1(b) deals with what are described as 'extraordinary expenses', but a dispensation in respect of these requires the Committee's approval.
The AQO relies on a number of resolutions. The starting point is 1267/1999, which by paragraph 4(b) requires the freezing of 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 Committee established...
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