England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd November 2002

Lord Justice Kennedy:

Introduction

1. On 8^th November 2002 we dismissed this renewed application for permission to seek judicial review and I now give my reasons for that decision. There were two decisions which the claimant sought to review, namely –

(1) A decision of 5^th January 2002 to arrest, search and detain him:

(2) A decision of the same date to confiscate certain material in his possession, namely copies of the Turkish language magazine Vatan, a number of videos and other literature, and the detention of that material pursuant to paragraph 11 of Schedule 7 to the Terrorism Act 2000 and section 22 of the Police and Criminal Evidence Act 1984.

2. These proceedings were commenced by the claimant against the Secretary of State for the Home Department and the Commissioner of the Metropolitan Police on 20^th February 2002, and in March 2002 each of the defendants acknowledged service and set out grounds for resisting the claim, including in the case of Commisioner a statement from Detective Sergeant McKee.
3. On 3^rd May 2002 Burton J refused permission to seek judicial review. The application was then renewed, but it was not until 7^th November 2002, the day before the renewed application was due to be heard before us, that the claimant filed any evidence. The covering letter from his solicitors offered an apology but no explanation whatsoever for the delay, which is plainly unacceptable. On the morning of the hearing counsel for the claimant produced a skeleton argument and offered us as an explanation for its late production "pressure of other work". The claimant and his counsel had many months in which to respond to the defendant's acknowledgements of service and to do so as they did at the very last possible moment necessarily deprives the other parties and the court of a proper opportunity to consider in advance the fresh material which was relied upon. We considered whether to order that the case be stood out of the list and that the costs thrown away be borne by those responsible. In this case we decided not to take that course, but that decision is not to be regarded as a precedent should the court encounter similar inactivity in the future.

The facts

4. The claimant is a British citizen now aged 29 who lives in London. On 5^th January 2002 he went by car to Brussels to collect two editions (1001 copies) of Vatan which, it seems, is published in Germany.
5. On his return on that day he was stopped at Dover by Customs & Excise officers. His car was searched and police officers were called. He was arrested on suspicion of offences contrary to the Terrorism Act 2000, and was served with a written Notice of Arrest, a material part of which reads –

"You have been arrested under the provisions of section 41 (1) of the Terrorism Act 2000 as it is reasonably suspected that you have committed an offences/offences of:

possession of property for the use of terrorism

under section/sections 16 Terrorism Act 2000"

He was detained overnight. After an interview next morning he was released, but his property was retained. It consisted of the copies of the magazine, 23 pre-recorded videos, 26 CD Roms and documents relating to human rights abuses in Turkey. In March 2002 all of the property other than the magazines was returned to the claimant.

Terrorism Act 2000 and DHKP-C

6. I turn now to the Terrorism Act 2000. Section 3(4) enables the Secretary of State to proscribe an organisation if he believes that it is concerned in terrorism, as defined in section 1 of the Act.
7. A Turkish organisation called DHKP-C has been so proscribed. That decision by the Secretary of State can be challenged by means of an application to the Secretary of State for deproscription (section 4) and if that is refused by means of an appeal to the Proscribed Organisations Appeal Commission (section 5). For any appeal in respect of proscription POAC and not this court has been designated the appropriate tribunal for the purposes of applications under section 7 of the Human Rights Act 1998 (see Proscribed Organisations Appeal Commission (Human Rights Act Proceedings) Rules 2001 SI 127). POAC approaches the matter as though it were an application for judicial review (section 5(3)) but has the advantage of a special procedure which gives it access to classified material which this court would not be able to see.
8. DHKP-C did apply to the Secretary of State in September 2001 for deproscription, but that application was refused by the Secretary of State in December 2001, and there has been no appeal.
9. It follows that all material times DHKP-C was and remains a proscribed organisation for the purposes of the 2000 Act.
10. Section 11 of the Act makes it an offence to belong to a proscribed organisation. Section 12 of the Act makes it an offence to provide support for a proscribed organisation. Section 13 of the Act makes it an offence to wear the uniform of a proscribed organisation, whether in the form of clothing or by means of a badge or something of that kind implying membership or support. Section 15 makes it an offence to fund raise for a proscribed organisation, and section 16 provides –

"(1) A person commits an offence if he uses money or other property for the purposes of terrorism.

(2) A person commits an offence if he –

(a) Possesses money or other property, and

(b) Intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism."

Section 40(1) provides –

"In this Part 'terrorist' means a person who –

(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or

(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism."

Section 41(1) provides that a constable may arrest without warrant a person whom he reasonably suspects to be a terrorist.

11. Schedule 7 deals with Port and Border Controls, and in particular with the power to stop, question and detain, with searches and with detention of property. An examining officer, meaning a constable or an officer of Customs & Excise, can stop, question and detain a person entering Great Britain at a port to determine whether he is or has been concerned with the commission, preparation or instigation of acts of terrorism, and by virtue of section 1(5) "a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation." If a person is questioned he and his vehicle may be searched, and paragraph 11(2) of Schedule 7 provides that anything found may be detained by the examining officer –

"(a) For the purpose of examination, for a period not exceeding 7 days beginning with the day on which the detention commences,

(b) While he believes that it may be needed for use as evidence in criminal proceedings ...."

DHKP-C and the Claimant

12. It is clear from the statement of Detective Sergeant McKee that DHKP-C is regarded by Special Branch as a left wing Turkish terrorist group which uses violence, including murder. One of its victims is said to have been a British businessman. The organisation is said by Detective Sergeant McKee to raise funds by extorting money from the local community and by the weekly sale of Vatan magazines. The claimant in his recent statement denies that money obtained by selling the magazine was ever so used. To the knowledge of Special Branch the claimant had been involved with the sale of Vatan for some time prior to January 2002. On 12^th May 2001 when passing through Dover he had several boxes of the magazine. On 21^st May 2001 at Holyhead his vehicle was said to have contained DHKP-C material. The claimant in his statement says that it was simply human rights material. In August 2001 a search of his London address revealed several items of DHKP-C material. As to that the claimant says that he was only on and off at that address, and has no idea what the material could have been. On 22^nd October 2001, on return from the United States, the claimant was found to have lists of prisoners in Turkish gaols, mostly DHKP-C members. He says that was simply human rights materials. Thus, according to Detective Sergeant McKee, when the claimant was arrested on 5^th January 2002 he was suspected of various offences under the Terrorism Act. He was not charged but DS McKee in the statement that he made in March 2002 said that at that time investigations were continuing, and translation of the magazines was nearly complete. The CD Roms were also being translated and he was inquiring as to the ultimate destination of funds raised through sales of Vatan. It was already clear that the pre-recorded videos and human rights abuse material were not required by the police, and when the Detective Sergeant made his statement they were about to be returned. In due course, as I have said, all of the material other than the magazines was returned, but no further step has been taken to initiate a prosecution.
13. In his unsigned statement, which we were told was completed on 6^th November 2002 the claimant exhibits commendable concern about human rights abuses in Turkey, but denies membership of any political party or campaigning group. He says he is against all forms of terrorism. Vatan he describes as a "left wing radical publication" first published in August 1999, which ceased publication in March 2002. He says that to his knowledge there is no relationship of any kind between Vatan and DHKP-C. About 2/3rds of the magazine's income was spent on the cost of publication, and the remainder went on the running costs of the office and staff of the magazine. Vatan, he says, did not invite violence or support terrorism or fund-raise for terrorist organisations. It was mainly concerned with human right abuses in Turkey. The claimant also deals in his statement in some detail with the events of 5^th January 2002, and with other occasions both before and since when he has been stopped by customs or police officers. For present purposes none of that detail is of relevance.

The Claimant's complaints

14. In his Claim Form the claimant asserts that there is no lawful power, consistent with the European Convention on Human Rights, to proscribe an entire organisation or to criminalise simple membership of or association with such an organisation. That assertion was not pursued by Miss Harrison in her oral submissions to us, and I need say no more about it. Miss Harrison specifically accepted, for the purposes of these proceedings, that DHKP-C is an organisation properly proscribed in accordance with the 2000 Act, but she contended that the offence created by section 16 is incompatible with basic freedoms enshrined in the Convention, namely and in particular the freedom of expression enshrined in Article 10 and the freedom of association enshrined in Article 11. On behalf of the Secretary of State Mr Sales concedes that the offence created by section 16 can curtail the freedom enshrined in Article 10, but he contends that in accordance with Article 10(2) the restrictions on the freedom are such as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, and for the protection of the rights of others. There has now been a translation of the issues of Vatan magazine which were seized on 5^th January 2002 and, as Miss Harrison points out, there is no overt advocacy of violence, merely the expression of political views which, she contends, people should be free to express.
15. Miss Harrison recognises that the case against the claimant is not related to the contents of the magazine but to what, it is said, was habitually done with the proceeds of sale. As to that she contends that if, which the claimant denies, some part of the proceeds did go to a proscribed organisation then the offence created by the statute should have been confined to an attack on that part of the proceeds. To create any wider offence was and is disproportionate, just as it was disproportionate to seize and retain, albeit only for a limited time, items which were in the claimant's car and which were plainly not connected with terrorism or providing funds for terrorism, such as literature concerned with the abuses of human rights.

Authorities

16. In support of her submissions Miss Harrison invited our attention to six authorities, and it is convenient to deal with them in chronological order.
17. In Surek v Turkey [1999] BHRC 339 the European Court of Human Rights was concerned with the publication in a review of an interview and a declaration which were held to have been propaganda against the indivisibility of the state. In paragraph 57 of the court's judgment it was said that –

"Freedom of expression constitutes one of the essential foundations of a democratic society .. this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly ... the adjective 'necessary' within the meaning of Article 10(2) implies the existence of a 'pressing social need'. The contracting states have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision.... In exercising its supervisory jurisdiction the court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was 'proportionate to the legitimate aims pursued.'"

18. On the same day that the European Court gave judgment in Surek the House of Lords delivered its judgment in R v Secretary of State ex parte Simms [2000] 2 AC 115, and the speech of Lord Steyn in that case also dwelt on the importance of freedom of expression.
19. In Kelly v BBC [2001] 2 WLR 283 Mumby J said at 264 that those who seek to bring themselves within Article 10(2) "cannot do so by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required (and this even if the case involves national security) is proper evidence". Miss Harrison in reliance on that passage invited us to treat the statement of Detective Sergeant McKee as to the destination of the proceeds of the sale of copies of Vatan as mere assertion. I see no reason to regard it as anything less than proper evidence even though, as the Detective Sergeant made clear, further enquiries were being made.
20. In R(Pretty) v DPP [2002] 1 AC 800 the House of Lords considered the refusal of the DPP to undertake not to prosecute if the claimant was assisted to terminate her own life. If no assistance was given there could be no prosecution, and Lord Hope at paragraph 78 found that in the exceptional circumstances it was open to the claimant to raise the issue by judicial review. Miss Harrison contends that the claimant in the present case should be afforded a similar degree of latitude, but in reality he is in no jeopardy unless he is prosecuted – any more than, for example, someone who has been arrested and whose property has been detained on suspicion of selling obscene magazines contrary to the Obscene Publications Act 1959. The circumstances are not exceptional, as they were in the case of Pretty, so there is to my mind no reason why the claimant should have a special remedy.
21. In R v Shayler [2002] 2 WLR 754 the House of Lords considered the ambit of Article 10(2) in the context of the Official Secrets Act 1989. At paragraph 58 –59 Lord Hope said –

"A restriction on the disclosure of information cannot be said to be 'necessary' in the interests of national security unless (a) 'relevant and sufficient reasons' are given by the national authority to justify the restriction, (b) the restriction on disclosure corresponds to a 'pressing social need' and (c) it is 'proportionate to the legitimate aim pursued'.... The principle involves the question of balance between competing interests. But it is important to appreciate that there is a process of analysis that must be carried through. The starting point is that an authority which seeks to justify a restriction on a fundamental right on the ground of pressing social need has a burden to discharge. There is a burden on the state to show that the legitimate means adopted were no greater than necessary."

22. In PMOI v Secretary of State 17^th April 2002 Richards J considered three applications for permission to seek judicial review brought by organisations challenging their proscription under the 2000 Act. It was said that the power to proscribe an organisation was too blunt an instrument. It lacked proportionality, and failed to comply with the requirements of legal certainty and that it should be "prescribed by law." An appeal to POAC was, it was said, an inadequate remedy, and even if proscription was valid the consequences of proscription, in terms of statutory offences thereby triggered, constituted a disproportionate interference with the rights of individuals. Richards J discerned a sufficient number of arguable points to get over the threshold of arguability in respect of the main issues, but he refused permission to seek judicial review because of the availability of the appeal to POAC. In relation to the regime of penalties he said at paragraph 89 –

"This issue is intimately bound up with those I have already held appropriate for determination by POAC. The offences under sections 11 to 13 are all direct consequences of proscription. The offences under sections 15 to 19 are not limited to proscribed organisations, but their true significance for the claimants appears to lie in the definitions in section 14 which bring the resources of a proscribed organisation within the definition of 'terrorists property' and provides that action 'for the purposes of terrorism' includes action taken for the benefit of a proscribed organisation. "

A little later in the same paragraph he said –

"The statutory regime relevant to proscribed organisations must be examined as a whole. The circumstances either warrant the inclusion of an organisation within that regime, taken as a whole, or they do not. There is no half-way house. It follows that in order to determine whether proscription is proportionate, POAC will have to have careful regard to the consequences of proscription in particular the consequential offences. The fact that proscription gives rise to such a serious interference with the rights of an organisation and its supporters means that correspondingly more compelling justification for the proscription will have to be advanced."

In paragraph 90 the judge recognised that –

"It must be possible in principle for proscription to be justified but for the regime of offences nonetheless to operate in a particular case in a way that infringes an individual's Convention Rights."

23. There are European authorities which show that "the maintenance in force of legislation containing criminal prohibitions can constitute in itself a continuing interference with Convention rights and that individuals affected by it may be entitled to challenge it without waiting to be prosecuted for an offence."

But in paragraph 91 the judge concluded –

"I am not persuaded that I should allow the challenge to the regime of penalties to proceed in the form of the present claim for judicial review. In my view the question whether the regime of offences consequential upon a lawful proscription gives rise to an unjustified interference with an individual's Convention rights needs to be considered on the particular facts of an individual case as and when it arises. It should not be dealt with as an abstract or generalised issue. Whether there is such an infringement it will depend on all the circumstances of the individual case. Alternatively, any challenge should at the very least await the outcome of the appeals to POAC."

Miss Harrison submits that here we have the individual case that Richards J had in mind.

The response

24. Mr Sales submitted and I accept that any attempt to contend that the offence set out in section 16 of the 2000 Act is not prescribed by law is doomed to failure. In the Sunday Times v UK [1979] 2 EHRR 245 the European Court of Human Rights said, at paragraph 49 of its judgment, that to be properly prescribed by law an offence must be adequately accessible, and it must be formulated with sufficient care to enable the citizen to regulate his conduct, if need be with appropriate advice. Similarly in SW and CR v UK [1995] 21 EHRR 363 the court said at page 399 –

"An offence must be clearly defined in the law .... this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court's interpretation of it, what acts and omissions will make him criminally liable."

25. Plainly, as it seems to me, when section 16 is read together with section 1(5) and the definition of property in section 121 a person in the position of this claimant knows what he can and cannot do. In this context it is important to recognise that in order to prove an offence contrary to section 16 it is necessary to show that the defendant had a specific intent, or state of mind.
26. That same mental element is also important in relation to proportionality. When deciding whether to proscribe an organisation the Secretary of State, and on appeal POAC, has to balance the effects of proscribing against the activities of the organisation under consideration. If there is no question about the terrorist nature of the organisation it is difficult to see why section 16 should be regarded as disproportionate, bearing in mind the need for proof of a guilty mind and the extent of the criminal court's powers in relation to sentence. This section is not about freedom of expression. It is about knowingly providing money or other property to support a proscribed organisation, and so long as the organisation has been properly proscribed the section cannot in my judgment be regarded as disproportionate.
27. Once that is recognised it seems to me that the complaints in relation to the power of arrest and the power to search and detain property really fall into perspective. As Mr Sales points out, the right to liberty enshrined in Article 5 of the Convention is expressly subject to lawful arrest or detention on reasonable suspicion of having committed an offence, and in the circumstances of the present case there is no basis for suggesting that the police officers involved exceeded their powers. As to the property which was taken there can be no sensible criticism of a power which enables an officer to detain material, even superficially innocent material, for examination, or of a power which enables him to detain material which may be needed for use as evidence in criminal proceedings. It may be that in the present case some of what was taken was not returned as quickly as it should have been, but now, long after its return, that is not a matter which merits further investigation by means of proceedings for judicial review.
28. Those are the reasons why in my judgment the renewed application for permission to seek judicial review could not succeed.

Mr Justice Pitchers:

29. I agree.