HOME SECRETARY v E & ANR

Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Pill, Wall and Maurice Kay LJJ
May 17, 2007

May 17, 2007 Conditions precedent – Non-derogating control orders – Prosecutions – Restrictions – Right to liberty and security – Impact of control order on rights under Art. 5 European Convention on Human Rights 1950 – Secretary of state’s continuing duty to review prospects of prosecution – Art. 5 European Convention on Human Rights 1950 – Art. 3 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 8(2) Prevention of Terrorism Act 2005
FACTS

The appellant (P) appealed against a decision ([2006] EWHC 1226, [2006] Ch 549) that highly objectionable images of children recovered from his computer following the execution of a search order made in intellectual property proceedings should be disclosed to the police. P had permitted the search of his premises to take place, but asserted that he would rely on his privilege against self-incrimination in respect of any material that the search might disclose. An employee of the company responsible for “imaging” the computer had discovered the offending material and applied to the court for directions. The judge below proceeded on the basis that, by reason of Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, before the Human Rights Act 1998, the privilege against self-incrimination would have applied to permit a defendant in civil proceedings not only to refuse to answer questions or produce documents by way of discovery, but also to refuse to produce any incriminating article found in the course of a search of premises pursuant to a court order.

The judge held that since the 1998 Act and by reason of the decision in Saunders v United Kingdom (19187/91) [1997] BCC 872, the privilege did not apply in criminal proceedings in relation to pre-existing or “independent” evidence. Accordingly, the judge held that, since it was illogical for the privilege to be wider in civil proceedings than in criminal proceedings, the court could modify the common law doctrine as laid down in Rank and could rely on the partial exception to the doctrine of precedent set out in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465. The issue for determination was whether P could invoke the privilege to prevent disclosure of the material to the police. P submitted that it was not permissible for the court to use the 1998 Act when no human rights were engaged in order to justify departing from the law laid down by precedent. The Attorney General, intervening, submitted that, whilst the judge had ultimately made the right decision, there was never any difference between the civil law and the criminal law, and the rationale for the privilege had no application to independent evidence.

ISSUE

(i) Whether the restrictions in the control order did not constitute a breach of Art. 5. (ii) Whether the judge had been wrong to find that he had breached his duty to consider and review the prospects of prosecuting E.

HELD (appeal allowed)

(i) The degree of physical restraint on E’s liberty was far from a deprivation of liberty in terms of Art. 5, Guzzardi v Italy (A/39) [1981] 3 EHRR 333, Engel v Netherlands (A/22) (1979-80) 1 EHRR 647 and Trijonis v Lithuania (Admissibility) (2333/02) considered. E lived in his own home with his family, and was able to leave his home for 12 hours a day with no geographical restriction on where he could go. E had ample opportunity to engage in everyday activities and make a wide range of social contacts, Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141, [2006] 3 WLR 866 distinguished. While the state of a controlled person’s health, and possibly other “person-specific” characteristics, might have an impact on the severity of the effect of the restrictions imposed, the judge below was correct in finding that, in the instant case, only very limited weight could be given to that factor. The judge had been right to conclude that the control order was likely to be renewed on expiry of the relevant 12-month period and to consider the restrictions on that basis. The judge had not erred in considering matters relevant to arguments under Art. 3 and Art. 8 in his consideration of Art. 5.

(ii) When properly considered in its statutory context, the duty under s. 8(2) of the 2005 Act to consider and review the possibility of prosecution was not a condition precedent to the making or renewal of a control order. The judge below had been right to find that the secretary of state had breached his duty to keep the possibility of prosecuting E under review. It was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extended to a duty to take reasonable steps to ensure that the prosecuting authorities were keeping the prospects of prosecution under review; it did not extend to the secretary of state becoming the prosecuting authority. The secretary of state had breached his continuing duty of review by omitting to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration, Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2006] 3 WLR 839 applied.

(iii) The judge had erred in describing the Belgian judgments as “evidence” giving rise to a realistic possibility of prosecution. He had erred in law in holding that the secretary of state’s breach justified the quashing of the control order, and ought instead to have further analysed the consequences of the breach.

R Tam QC and A O’Connor (instructed by the Treasury Solicitor) for the appellant. K Starmer QC and H Southey (instructed by Birnberg Pierce & Partners) for the respondents. A McCullough (instructed by Special Advocate Support Office) for Special Advocate.

Capacity and intention of a “terrorist” organization

From The TimesMay 13, 2008

Organisation is no longer concerned in terrorism
Alton and Others v Secretary of State for the Home Department in the Court of Appeal
Court of Appeal

Published May 13, 2008

Alton and Others v Secretary of State for the Home Department

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Laws and Lady Justice Arden

Judgment May 7, 2008

An organisation that had no capacity to carry on terrorist activities and was taking no steps to acquire such capacity or otherwise to promote or encourage terrorist activities could not be said to be concerned in terrorism simply because its leaders had the contingent intention to resort to terrorism in the future.

The Court of Appeal so held in dismissing an application by the Secretary of State for the Home Department for permission to appeal against the decision of the Proscribed Organisations Appeals Commission on November 30, 2007, that she had acted perversely in refusing an application by Lord Alton of Liverpool and 34 other members of the two Houses of Parliament, pursuant to section 4(1) of the Terrorism Act 2000, for her to remove the People’s Mujahidin Organisation of Iran, previously known as Mujaheddin-e-Khalq, from the list of proscribed organisations in Schedule 2 to that Act, as amended by article 2 of the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order (SI 2001 No 1261).

Mr Jonathan Swift, Ms Gemma White and Mr Oliver Sanders for the Home Secretary; Mr Nigel Pleming, QC, Mr Mark Muller, QC and Mr Edward Grieves for the parliamentarians; Mr Andrew Nicol, QC and Mr Martin Chamberlain as special advocates.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the organisation’s present stated purpose was the replacement of the Iranian theocracy with a democratically elected secular government.

The parliamentarians accepted that it had engaged in military activity against the Iranian regime prior to June 2001, as the only means available to oppose tyranny and oppression.

They contended, however, that since then it had conducted no military activity; it had dissolved all its operational units inside Iran and successive secretaries-general had renounced terrorism.

The question for the Home Secretary was whether she believed that the organisation was “concerned in terrorism” within the meaning of section 3(5)(d) of the 2000 Act.

The Home Secretary’s reasoning appeared to have been that the organisation remained concerned in terrorism because she had reason to fear that terrorist activity that had been suspended for pragmatic reasons might be resumed in the future.

Their Lordships agreed with the commission that an organisation that had no capacity to carry on terrorist activities and was taking no steps to acquire such capacity or otherwise to promote or encourage terrorist activities could not be said to be concerned in terrorism simply because its leaders had the contingent intention to resort to terrorism in the future.

The nexus between such an organisation and the commission of terrorist activities was too remote to fall within the description “concerned in terrorism”.

An organisation that had temporarily ceased from terrorist activities for tactical reasons was to be contrasted with an organisation that had decided to attempt to achieve its aims by other than violent means.

The latter could not be said to be concerned in terrorism, even if the possibility existed that it might decide to revert to terrorism in the future.

Support for those conclusions could be derived from section 11 of the 2000 Act which made it an offence to belong to a proscribed organisation but then provided that it should be a defence for a member to prove that he had not taken part in the activities of the organisation at any time while it was proscribed.

It was implicit in that provision that the essence of the criminal offence of belonging to a proscribed organisation was the taking part in activities that, directly or indirectly, lent support to terrorism.

It was also implicit that the legislation was aimed against organisations that were carrying on activities connected with terrorism.

As to the appropriate standard of review, the question of whether an organisation was concerned in terrorism was essentially a question of fact. Justification of significant interference with human rights was in issue.

Their Lordships agreed with the commission that the appropriate course was to conduct an intense and detailed scrutiny of both open and closed material in order to decide whether that amounted to reasonable grounds for the belief that the organisation was concerned in terrorism.

Applying that approach, the commission had concluded that the Home Secretary’s decision was perverse. There was no valid ground for contending that the commission had erred in law.

Solicitors: Treasury Solicitor; Bindmans LLP; Treasury Solicitor.

Anti-terror asset-freezing order improperly made

From The TimesMay 5, 2008

Anti-terror asset-freezing order improperly made
Queen’s Bench Division

Published May 5, 2008

A, K, M, Q and G v HM Treasury

Before Mr Justice Collins

Judgment April 24, 2008

Orders in Council, made purportedly to give effect to United Nations resolutions freezing the assets of terrorist organisations and their adherents, were to be quashed since, among other faults, they had been improperly made outside the parliamentary process and were bad as creating criminal law of insufficient certainty.

Mr Justice Collins so held in the Queen’s Bench Division in allowing applications by A, K, M and Q to have asset-freezing orders under the Terrorism (United Nations Measures) Order (SI 2006 No 2657) set aside by special process and in allowing a claim by G for judicial review of that and of a further order under the al-Qaeda and Taleban (United Nations Measures) Order (SI 2006 No 2952).

Those orders had been made under section 1 of the United Nations Act 1946. They purported to give effect to various United Nations Security Council resolutions:

1. 1373/2001 (Threats to international peace and security caused by terrorist acts),
2. 1452/2002 (Threats to international peace and security caused by terrorist acts),
3. 1267/1999 (on the situation in Afghanistan),
4. 1333/2000 (on the situation in Afghanistan),
5. 1390/2002 (The situation in Afghanistan),
6. 1526/2004 (Threats to international peace and security caused by terrorist acts),
7. 1671/2005 (The situation concerning the Democratic Republic of the Congo), and
8. 1735/2006 (Threats to international peace and security caused by terrorist acts)

which were intended to combat the financing of terrorism.

The claimants had all been designated under that antifinancing regime. As a result orders were made imposing draconian limitations on their lives by way of control of their use of finance and other economic resources.

Mr Tim Owen, QC and Mr Daniel Squires for A, K, M and Q; Mr Rabinder Singh, QC and Mr Richard Hermer for G; Mr Jonathan Crow, QC and Mr Andrew O’Connor for the Treasury.

MR JUSTICE COLLINS said that it was clear that such an order was extremely harsh on the designated person and because of the criminal liability of those, including particularly his family, who might provide him with economic resources, given the wide definition given to that expression. But harshness was not in itself a reason to interfere with it.

Counsel for the applicants submitted that the method used to apply the obligations imposed by the UN resolutions was unlawful.

Parliament had been bypassed by the use of Orders in Council. In deciding the appropriate way in which the obligations should be applied, and in particular in creating the criminal offences set out in the orders, it was necessary that parliamentary approval should be obtained. Those submissions were, in his Lordship’s judgment, entirely persuasive.

Resolution 1371/2001 required the freezing of assets of those who committed or facilitated the commission of terrorist acts. Order 2006/2657 coferred power to designate where the Treasury had reasonable grounds for suspecting a person was or might be committing such acts.

His Lordship said it was impossible to see how the test in the UK order could constitute a necessary means of applying the UN resolution.

It was accepted the court could consider whether the person affected was, on the facts, properly within the test to be applied. That meant all material had to be available to the court, whether closed or open.

In his Lordship’s experience, that included intercept material. Section 17 of the Regulation of Investigatory Powers Act 2000 excluded such evidence from any legal proceedings Fairness worked for the Crown as it did for the applicants. Thus the Treasury was unable to rely on inculpatory intercept material just as the applicant was unable to rely on exculpatory intercept material.

That could not be in the interests of justice or indeed of ensuring that the right people were made subject to such orders. Thus, in his Lordship’s view, it was impossible to say that the use of an Order in Council was expedient in such circumstances.

It was submitted that the orders were unlawful in establishing criminal offences which went far beyond what was reasonably required and offended against the principle of legal certainty.

The very wide definition of “economic resources” made it impossible for members of the family of the designated person to know whether they were committing an offence or a licence from the Treasury was needed.

One of more than fifty queries to the Treasury, illustrating resultant absurdity, was whether a licence was needed to lend a car to the designated person to go to the supermarket for the family’s groceries. The Treasury, wrongly in his Lordship’s view, decided a licence was needed.

The principle of legal certainty in the context of criminal offences had been discussed by the House of Lords in Norris v USA ( The TimesMarch 14, 2008; [2008] 2 WLR 673), R v Rimmington (The Times October 28, 2005; [2006] 1 AC 459) and R v Jones (Margaret) (The Times March 30, 2006; [2007] 1 AC 136).

The purpose of asset-freezing was to ensure that funds were not made available for terrorist purposes. Thus any criminal liability which could fall on those who made any assets available to a designated person should depend on whether it was or ought to have been known to the supplier that the asset in question could result in funds being available for terrorist purposes.

That at the very least seemed to his Lordship to be an appropriate limitation on criminal liability.

How the requirements should be put into law was a matter for parliamentary consideration. Neither Order in Council represented a necessary or expedient means of giving effect to the obligations imposed.

The result would be that both the orders had to be quashed. That was not to say that freezing orders could not be made to comply with UN resolutions.

Solicitors: Birnberg Peirce & Partners and Public Law Solicitors, Birmingham; Tuckers, Marylebone; Treasury Solicitor.

Evidence elicited in safety interviews is admissible

From The TimesMay 8, 2008

Evidence elicited in safety interviews is admissible
Court of Appeal, Criminal Division

Published May 8, 2008

Regina v Ibrahim and Others

Before Sir Igor Judge, President, Mr Justice Forbes and Mr Justice Mackay

Judgment April 23, 2008

Evidence obtained during safety interviews held with a defendant in the absence of his solicitor was admissible at his subsequent trial subject to the ordinary principles governing a fair trial and excluding unfair evidence.

The Court of Appeal, Criminal Division, so held when refusing applications by Muktar Said Ibrahim, Yassin Omar, Hussein Osman (aka Hamdi) and Ramzi Mohamed, for leave to appeal against their convictions on July 9, 2007, at Woolwich Crown Court (Mr Justice Fulford and a jury) of conspiracy to murder, for which they were sentenced on July 11, 2007, to life imprisonment with minimum terms of 40 years.

Mr George Carter-Stephenson QC and Mr Ali Naseem Bajwa for Ibrahim; Mr Michael Wolkind, QC and Mr Stephen Vullo for Omar; Mr James Lewis, QC and Mr James O’Keefe for Osman; Mr Mark Milliken Smith, QC and Miss Frida Hussain for Mohamed, all defence counsel assigned by the Registrar of Criminal Appeals; Mr Nigel Sweeney, QC, Mr Max Hill and Miss Alison Morgan for the Crown.

THE PRESIDENT, giving the reserved judgment of the court, said that on July 21, 2005, bombs were detonated in the London Underground transport system and on a bus in Hackney but the main charges failed to explode. The bombers made their escapes.

The immediate objective of the investigation by the police was directed to protecting the public from any further violent incidents by finding and detaining the bombers. The four defendants were arrested, together with 14 other individuals suspected of terrorism offences.

A police superintendent directed that, in accordance with paragraph 8 of Schedule 8 to the Terrorism Act 2000, interviews with the defendants to secure public safety should take place in the absence of their solicitors.

In safety interviews, a suspect would be interviewed to obtain information which might help the police to protect life and prevent serious damage to property.

At the trial of the defendants, and on their appeals, the question arose whether the results of such interviews could be used as evidence against them. It was clear that the admission of safety interviews or their fruits in evidence at a subsequent trial, was not precluded by the legislative structure.

At the safety interviews, the defendants had made demonstrably untrue assertions which failed to suggest the defences, later advanced at trial, that the bombs were hoaxes. The judge had ruled that it was clear beyond doubt that the defendants were not misled or deceived as to the underlying purpose of the interviews, the possible consequences of answering questions or the potential risks of not revealing elements of their defence.

He also said that it was sometimes necessary for a suspect to have the assistance of a lawyer before he could understand and describe a complicated defence, but that was not the instant case.

Access to lawyers had been denied for a relatively short period and in no case for more than eight hours. Their Lordships could find nothing to support the conclusion that the judge’s decision to admit the interviews in evidence at trial was in any way flawed.

Solicitors: Crown Prosecution Service.

R (M) v HM TREASURY & OTHERS

Last updated: 7:18 PM BST 07/05/2008
House of Lords

Lord Bingham of Cornhill, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

April 30, 2008

Benefits – Licences – Possession for terrorist purposes – Regulations – Spouses – Statutory interpretation – Terrorists – Benefits payments to spouses of listed persons Meaning of “for the benefit of” in Art. 2.2 Regulation 881/2002 – Art. 2a(1)(a) Regulation 881/2002 – Art. 2.2 Regulation 881/2002 – Art. 2.3 Regulation 881/2002

FACTS

The court was required to consider the proper interpretation of Regulation 881/2002 art. 2.2. The issue had arisen in connection with the payment of social security benefits to the spouses of persons and groups within the Taliban and al-Qa’ida network who were named in a list drawn up by the Sanctions Committee of the United Nations Security Council. It was not in dispute that a listed person would require a licence from HM Treasury for payment of funds to him, and that a family member of a listed person, such as a wife for example, would not be entitled without such a licence to make funds available to her husband. The question was whether a licence was necessary to enable social security benefits to be paid to the wife herself. The Treasury submitted that a licence was necessary because money spent by the wife on the running of the family household would be “for the benefit” of the husband within the meaning of art. 2.2 of the Regulation and that it had a duty to ensure that none of the benefit money paid to a wife was spent for purposes that might benefit the husband outside of the scope of art. 2a(1)(a) of the Regulation. It maintained that in order to police that restriction, the wife should have her benefits paid into a bank account, from which she could only draw up to £10 in cash for each member of the household and that she must send a monthly account to the Treasury detailing her expenditure and enclosing receipts.

ISSUE

The proper interpretation of Regulation 881/2002 art. 2.2.

HELD (Question referred to ECJ)

(1) The intrusive regime described by the Treasury was not required by art. 2.2 of the Regulation. It produced a disproportionate and oppressive result. The licence conditions were “to provide safeguards against the risk of these funds being diverted to terrorism” and it was hard to see how the expenditure of money on domestic expenses, such as food, from which a listed person derived a benefit in kind, could create any risk that the listed person may divert the funds to terrorism. Also, the broad construction given by the Treasury to the words “for the benefit of” produced an anomalous discrepancy with art. 2.3, and there was accordingly no limit to the non-financial economic resources that a wife may provide to a husband provided that they did not enable him to obtain funds, goods or services. It was likely that the words “made available…. for the benefit of” in art. 2.2 of the Regulation were intended to mean a benefit made available to the listed person that he could use for terrorist purposes. In the case of a family living on state benefits, which were carefully calibrated to provide them with no more than they needed to live on, it was wholly unrealistic to assume that anyone living with a listed person was likely to make any funds she received available to the listed person for the purposes of terrorism.

(2) A question was referred to the ECJ, namely whether payments of money to persons other than the listed person were required to be licensed on the ground that some of their expenditure of that money would be for the benefit of the listed person. That question involved interpreting the words “for the benefit of” in art. 2.2 to determine whether they had a wide meaning that covered any application of money from which a listed person derived some benefit, or whether they applied only to cases in which funds, financial assets or economic resources were “made available” for his benefit, so that he was in a position to choose how to use them.

Rabinder Singh QC and Simon Cox (instructed by Birnberg Pierce & Partners) for the appellants. Jonathan Swift and Cecilia Ivimy (instructed by Treasury Solicitors) for the respondents.

Freezing assets of terror suspects ruled unlawful by High Court

The Times (“Freezing assets of terror suspects ruled unlawful by High Court“, April 25, 2008) reports:

Asset-freezing orders imposed by the Treasury on terror suspects have been ruled unlawful

Anti-terrorism legislation was condemned as poorly thought-out by a senior High Court judge yesterday as he declared that the Treasury’s powers to freeze suspects’ bank accounts were unlawful.

Mr Justice Collins said that terrorist financial orders — introduced by Gordon Brown when he was Chancellor — were absurd,unfair and a breach of fundamental rights.

The judge, who has lengthy experience of dealing with terrorism cases, said: “It was, frankly, another example of an immediate reaction without it being thought through properly — which is rather the pattern with the anti-terrorism measures.”

The Times revealed this week that the judge was preparing to criticise the asset-freezing regime in the latest of a series of rulings that have exacerbated tensions between the judiciary and the Government.

There are now 59 people living in Britain on the Treasury sanctions list, including the radical clerics Abu Hamza al-Masri and Abu Qatada, who are both in jail. The Bank of England has frozen 274 accounts, containing £656,000.

Abu Qatada had £180,000 cash in his home when it was raided in 2001 and, despite the sanctions, Abu Hamza made £120,000 on a property transaction while in prison.

Ruling on an appeal brought by five terrorist suspects — referred to in court as A, K, M, Q and G — the judge said that the sanctions had had “the most drastic effect” on them and their families.

People on the terrorist list have to apply to the Treasury for a licence to spend money on groceries and anyone who provides them with “an economic resource” is liable to a criminal conviction and a jail sentence.

The judge said the situation was “an absurdity” and recommended that two measures — the Terrorism Order and the al-Qaeda and Taleban Order — should be quashed. They will, however, remain in place pending an appeal that the ministers said the Government would pursue urgently.

The measures were adopted to give effect in British law to two United Nations Security Council resolutions imposing sanctions on people alleged to be funding terrorism.

The judge was critical that they were introduced as Orders in Council rather than through an Act of Parliament and were therefore not subject to debate by MPs and peers. He also criticised the absence of a procedure for suspects who wanted to challenge their listing as terrorists.

The Government, he added, should consider introducing measures in the Counter-terrorism Bill to provide for a tribunal at which people on the Treasury’s list could challenge the financial sanctions. The judge told government lawyers: “You are going to have to legislate at some stage, otherwise the State will not be able to put before the court the incriminating or allegedly incriminating material.”

He said he had “real concerns” that the orders had introduced a criminal offence, of assisting a listed person, without consulting Parliament.

David Davis, the Shadow Home Secretary, said that the High Court had left Mr Brown’s asset-freezing regime “in tatters”. He added: “When you make laws in a hurry that are unfocused and arbitrary, the result is neither firm nor fair — just fragile.”

Jacqui Smith, the Home Secretary, said that she was “very disappointed” with the ruling.

Jane Kennedy, the Financial Secretary to the Treasury, said: “The Government continues to be fully committed to defending and maintaining our asset-freezing regime which makes an important contribution to our national security by helping to prevent funds being used for terrorist purposes and is central to our obligations under successive UN Security Council Resolutions to combat global terrorism.”

But Jules Carey, solicitor for G, said that the importance of the judgment could not be overstated. He said: “It is the sovereignty of Parliament that is at stake here, the foundation block of the British constitution. If Government can, without consulting Parliament, give itself powers to create criminal offences and take away fundamental rights then we are watching the sun set on democracy.”