England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2017

Mrs Justice Elisabeth Laing DBE :

Introduction

1. The Appellant has appealed against his designation on 14 March 2014 by the Respondent ('HMT') under section 2 of the Terrorist Asset-freezing Act 2010 ('the 2010 Act'). The grounds for that designation were that HMT reasonably believed that the Appellant had been involved in terrorist activity. That activity, in short, was being at a terrorist training camp in Syria, training and instructing people, and sending a generator to an extremist, Tahari, who was fighting in Syria, knowing that it would be used for the purposes of terrorism. HMT considered it necessary, for purposes connected with protecting the public from terrorism, to impose financial restrictions on the Appellant.
2. This is my OPEN judgment about the principles which should apply to disclosure in this case, after an OPEN and CLOSED hearing lasting two days. The Appellant was represented by Mr Squires QC and by Mr Desai and HMT by Mr Eadie QC and Mr O'Brien. The Special Advocates were Mr Cory-Wright QC and Mr Ahmad. I am grateful to counsel for their oral and written submissions.

The background

3. The Appellant was charged with seven offences under the terrorism legislation, including offences under section 8(1) of the Terrorism Act 2006 ('the 2006 Act'), and under sections 17 and 57(1) of the Terrorism Act 2000 ('the 2000 Act'). He was remanded in custody. Many thousands of pages of OPEN documents were disclosed to him. In submissions in support of an unsuccessful application for bail, the Appellant admitted being in Syria between November 2012 and April 2013, and having provided basic fitness training to some people 'who might later become involved in resistance to an overwhelming military onslaught'. The submissions said that some of the underlying facts were not in dispute (being in Syria, being in contact with 'named individuals' and 'having endeavoured to provide a specific item to assist one of those individuals'), and that 'this challenging case will require detailed exploration of the legal and factual circumstances on which the prosecution seeks to base its case'.
4. The trial was listed for 6 October 2014. On 1 October 2014, the Crown Prosecution Service ('the CPS') announced that it was dropping the prosecution and that it would offer no evidence against the Appellant. The BBC reported that an Assistant Chief Constable of the West Midlands Police told the press, from the steps of the Old Bailey, that the Appellant was 'an innocent man'. He was formally acquitted and released from custody. The CPS issued a statement the same day. This said that when the charges were authorised, there was enough evidence to give a realistic prospect of conviction, and it was in the public interest to prosecute, but that in the light of further material which had come to light, there was no longer a realistic prospect of conviction. The CPS said that if they had known about this information in March 2014, they would not have charged the Appellant. That further material has not been disclosed to the Appellant.
5. On 2 October 2014, the Appellant's solicitors invited HMT to quash the designation ab initio, on the grounds that the Appellant had never been involved in terrorism, and the designation was not necessary. In its reply, dated 14 October 2014, HMT revoked the designation. HMT did not explain why it had revoked, rather than quashed, the designation. The Appellant then appealed by a notice of appeal dated 3 November 2014. He contends that, rather than revoking the designation with effect from 14 October 2014, HMT should have quashed it ab initio. He claims damages. HMT served its OPEN and CLOSED evidence in opposition on 9 May 2017. HMT disclosed exculpatory material on 7 June and 13 July 2017. The Appellant served his evidence in response on 30 June 2017: his fourth witness statement dated 28 June 2017 and a witness statement from his solicitor, Gareth Pierce, also dated 28 June 2017. On 13 July 2017, HMT's solicitors wrote to the Appellant's solicitors. HMT contended that the evidence served on 30 June was legally irrelevant, and said that HMT would not be serving any evidence responding to it.
6. The Appellant contends that the key issue on the appeal is whether he was correctly designated on 14 March 2014, or not. If he was, but designation had, by October 2014, ceased to be necessary, then the revocation of that designation six months later would not be contentious. If, however, the designation was flawed when made, then, he contends, even if those flaws were not known about in March 2014, it should be quashed. The difference matters, he says, because if the designation is merely revoked, he is to be treated as a person who has been correctly and publicly designated as a terrorist. Moreover, he would not be entitled to damages, and anyone who breached the terms of the designation during its currency would be guilty of an offence.
7. The Appellant explains (skeleton argument, paragraph 6) that the allegations on which the criminal charges were based were the same as those on which the designation was based, and both were based on the same evidence. The Appellant contends that the charges led to the designation. I accept those contentions. The Appellant infers that because of these factual, evidential, and causal links, if the further material had been available in March 2014, not only would the Appellant not have been charged, he would not have been designated. At paragraph 6(iii) of the skeleton argument, the Appellant infers that HMT accept, or accepted in October 2014, that in the light of the new material, the Appellant was not in fact involved in terrorism (part of the relevant test is a reasonable belief that the person concerned 'is or was involved in terrorist activity'). At paragraph 6(iv) the Appellant refers to material which suggests that, in the view of the West Midlands Counter-terrorism Unit ('the WMCTU'), the new material undermined all the evidence against the Appellant, so that the allegation of terrorist activity could not be maintained, even to the lower standard of proof required for designation.
8. It seems that, in general outline, at least, the Appellant does not contest HMT's factual case. That, says HMT, is evident from his fourth witness statement, in which he does not deny those allegations, but, rather, tries to justify or excuse his actions (see further, paragraphs 14.2 and 14.3 of HMT's skeleton argument). If that is not so, HMT submits that the Appellant must urgently clarify what, factually, he does dispute.

The statutory framework

9. Section 1(2) of the Terrorism Act 2000 ('the 2000 Act') provides that 'terrorism' means the use or threat of action which

i) falls within section 1(2),

ii) the use or threat is designed

a) to influence

i) the government, or

ii) an international governmental organisation, or

b) to intimidate the public or a section of the public, and

iii) the use or threat is made for the purposes of advancing

a) a political,

b) religious,

c) racial, or

d) ideological cause (section 4(1) of the 2000 Act).

10. Action falls within section 1(2) if it

i) involves serious violence against the person,

ii) involves serious damage to property,

iii) endangers a person's life, other than that of the person committing the action,

iv) creates a serious risk to the health or safety of the public or a section of the public, or

v) is designed seriously to interfere with or seriously to disrupt an electronic system.

11. Section 1 makes no distinction between the advancement of a religious cause and the advancement of other causes, such as political or ideological causes. Section 1 equates relevant threats with relevant actions, and it also equates the purpose of influencing governmental organisations with the purpose of intimidating the public, or sections of the public. The effect of section 1(3) is that the use or threat of action falling within section 1(2) which involves the use of firearms or explosives is terrorism whether or not it satisfies section 1(1)(b) (ie whether or not it is designed to influence the government or an international governmental organisation or to intimidate the public or a section of it).
12. Section 1(4) deals with extra-territorial effect. 'Action' includes action outside the United Kingdom. References to any person or property are references to those wherever they are, a reference to 'the public' includes a reference to the public of a country other than the United Kingdom, and 'the government' refers to any government.
13. Section 2(1)(a) and (b) of the Terrorist Asset-Freezing etc Act 2010 ('the 2010 Act') gives HMT power to make a final designation for the purpose of Part 1 of the 2010 Act if they reasonably believe that the person is or has been involved in terrorist activity and they consider that it is necessary for purposes connected with protecting members of the public from terrorism that financial restrictions should be applied in relation to that person. Section 2(2) defines involvement in terrorist activity as one or more of three things. They are (a) the commission, preparation or instigation of acts of terrorism, (b) conduct that facilitates the commission, preparation or instigation of acts of terrorism, or which is intended to do so, and (c) conduct that gives support or assistance to people who are known or believed by the person to be involved in conduct within (a) or (b). Section 2(3) provides that it is immaterial whether the acts of terrorism are specific acts of terrorism or acts of terrorism generally. 'Terrorism' has the same meaning as in section 1(1)-(4) of the Terrorism Act 2000 ('the 2000 Act') (section 2(4)).
14. Parliament has created several criminal offences connected with terrorism. They each have different elements. In this case the factual allegations on which the criminal charges against the Appellant were based are the same as the allegations on which the designation was based. It does not, of course, follow, that, in the abstract, HMT had to have a reasonable belief that the criminal offences were committed, on the balance of probabilities, in order to designate the Appellant under section 2 of the 2010 Act. It had to have, instead, a reasonable belief that the Appellant was involved in terrorist activity in the ways alleged in the particulars of each offence charged on the indictment.
15. None of the parties could help me with the question whether the Administrative Court is bound by decisions of the Court of Appeal (Criminal Division) ('CACD'), but all agreed that they were, at least, persuasive. There have been many decisions of CACD about the interpretation of the legislation creating criminal offences. I have treated those which are relevant to the issues in this case (because they concern concepts which are common to criminal offences and designation) as highly persuasive. In my judgment, the legislation dealing with terrorism should, so far as is possible, and particularly when concepts common to criminal and civil jurisdictions are in issue, be interpreted consistently in criminal and in civil cases.
16. In R v SEH [2016] EWCA Crim 1609 CACD considered an application by the defence for leave to appeal against a preliminary ruling, which refused a stay of the prosecution on the grounds of abuse of process. The defendant was charged with three offences contrary to section 17 of the 2000 Act. The defence case statement accepted that the defendant had given money to his nephew but contended that the defendant did not know his nephew was fighting for a proscribed organisation in Syria; the defendant also contended that his nephew was fighting to protect the civilian population against attacks by the Assad regime. The ground for the application was an argument that the activities for which the defendant was being prosecuted were identical to acts of the British Government, such as promoting or facilitating the use of force to remove the Assad government, or protecting the people of Syria from that government, by supplying arms, training, supplies, finance and other support to the Syrian opposition.
17. The defendant contended that he believed that force was necessary to defend the civilians of Syria from their government. He relied on statements by David Cameron and William Hague. CACD identified two main parts of this argument: it could be an abuse of process for the government to prosecute a defendant for activities which were the same as those done by or on behalf of the executive; and the Attorney General had given his consent to the prosecution arbitrarily. The Judge had decided the first argument on the basis that the position of an individual is different from that of the Government (judgment, paragraph 20). The Court referred to the careful structure of provisions by which actions outside the United Kingdom may be authorised by the Secretary of State in accordance with strict statutory criteria, and subject to safeguards. Unauthorised activity is liable to prosecution (judgment, paragraph 21). Agencies of the British Government are not the same as individuals. 'There is no basis upon which individuals can claim to contravene domestic terrorism legislation on their own initiative. They do not have the benefit of protection [conferred by the relevant statutory schemes]' (judgment, paragraph 22). The Court cited passages from R v Jones [2006] Cr App 9 at paragraph 74 and R v F [2007] Cr App R 3 about the inaptness of private use of violence in a democratic society, in which the state has a monopoly on the use of force.
18. The Court concluded (judgment, paragraph 25) that 'Even if this applicant's assertions that what he had assisted his nephew to do was no different from that which the agents of HMG had done in Syria, that would not avail him. Not only would he have been acting outside the framework which applies to government agents, but additionally, a consideration of the policies of HMG is an area into which the courts will not ordinarily delve'. A relevant factor was whether it was alleged that misconduct by the authorities had caused prejudice to the accused or had influence over the proceedings (judgment, paragraph 27). This ground of appeal did not raise a 'tenable' argument (judgment, paragraph 28).
19. One issue which was debated in the OPEN hearing was whether self-defence, or defence of another, can be relied to defeat an allegation of terrorist activity for the purpose of the designation regime. While I am not at this stage deciding this issue, I have considerable reservations about the Appellant's argument, which I now describe.
20. First, as the Supreme Court and CACD have observed, 'terrorism' is defined very widely in section 1 of the 2000 Act. There is no hint in that wide definition that actions taken in self-defence or in the defence of others are to be carved out of that definition. If there is to be such a carve-out, such a carve-out must be implied. It cannot be implied unless that implication is necessary. I do not consider that it is obvious that there is any necessity for such an implied carve-out. Parliament's evident intention is to catch a wide range of different activities in the definition. That evident intention would be undermined, and uncertainty would be introduced, if a person whose actions otherwise fit the wide definition can argue that he is not engaged in terrorist activity because he is engaged in self-defence or defence of another.
21. Second, whether self-defence is a defence to a particular criminal offence of terrorism is for Parliament to decide. Parliament gives effect to any such decision by providing expressly for such a defence. Whether self-defence is available to a defendant who is charged with an offence of terrorism will depend on the precise terms of the provision which creates the offence in question. Some offences are absolute in terms (see, eg, sections 17 of the 2000 Act and section 8 of the Terrorism Act 2006). By contrast, the offence created by section 58 of the 2000 Act is qualified by section 58(3) which provides that 'It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession'. In other statutory regimes, Parliament also provides specifically for such a defence: see, for example, section 134 of the Criminal Justice Act 1988, which creates the offence of torture. Section 134(1) defines the offence of torture in very wide terms, subject to section 134(4), which provides that 'It shall be a defence for a person …in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct'. But for the purposes of the designation regime, HMT is not concerned with whether the Appellant might have a defence to a criminal charge, but with a different question, which is whether it is reasonable to believe that he is or was engaged in terrorist activity, as defined.
22. As I have said, the trend of the decisions of the Supreme Court and of CACD to which I was referred is to recognise that the definition of terrorism is deliberately wide. It is also to deduce from that that excuses for terrorism which are sometimes advanced, such as 'just cause terrorism' ('I am acting to remove a terrible dictator') do not prevent the activity in question from being 'terrorism' as defined in section 1 of the 2000 Act: see R v F [2007] EWCA Crim 243; [2007] QB 960; and are not relevant in mitigation of sentence (R v Sarwar [2015] EWCA Crim 1886; [2016] Cr App R (S) 54, paragraphs 41-43; affirmed in R v Kahar [2016] EWCA Crim 568; [2016 1 WLR 3156), and that the definition includes 'any military attack by a non-state armed group against the armed forces of any state …in the context of non-international armed conflict' (R v Gul [2034] UKSC 64; [2014] AC 1260), even where that is approved officially or unofficially by the UK government (at paragraph 28).
23. Mr Squires is entitled to say that none of these decisions in express terms rules out self-defence as something which would save conduct from meeting the wide definition of 'terrorism'. But I would be inclined to accept Mr Eadie's submission that to recognise self-defence as an implied carve-out from the definition would be inconsistent with the reasoning in these decisions.

The issues for this hearing

24. The first broad issue is whether the evidence served by the Appellant on 30 June 2017 is relevant to any issue in the appeal (and, therefore, whether it imposes any further obligations of disclosure on HMT). The second group of issues concerns the temporal scope and departmental reach of HMT's disclosure obligations. This issue, says HMT, in truth raises no real question of principle, in the light of concessions made by HMT in a Note dated 17 October 2017. HMT contends that the only live issue under his heading is one of fact, not of principle. It is whether any material which is now in CLOSED should be gisted. This, contends HMT, is an issue for detailed resolution in the disclosure process, and does not require any decision of principle.

The first issue

25. The Appellant summarises the evidence he served in June 2017 at paragraphs 9-14 of his skeleton argument under four heads. They are (i) the situation in Syria at the material time; (ii) recognition of anti-Assad forces as representatives of the Syrian people; (iii) UK military assistance to anti-Assad forces; and (iv) the Appellant's activities. He also refers, in paragraphs 38-41, to his evidence about his contacts with the Security Service. These types of evidence are said to be relevant both to whether the Appellant's activities were 'terrorist activity' as defined and to whether it was necessary to designate him.
26. The skeleton argument explains how that evidence is relevant to the issues posed by section 2 of the 2010 Act. Section 2 imports the definition of 'terrorism' in section 1 of the 2000 Act (see above). The Appellant contends that neither section 1(1)(b) or (1)(c) of the 2000 Act applies to what he did. First, he argues, the government of Bashar Al Assad was not, at the material time, a government within the meaning of section 1(1)(b) of the 2000 Act. He argues, second, that he did what he did in order only to help 'the Syrian population in self-defence against Assad's forces'. If that was his motive, then what the Appellant did was not 'designed to influence the government…or to intimidate the public or a section of the public, and its purpose was not to 'advance a political, religious, racial or ideological cause' (within the meaning of section 1(1)(c) of the 2000 Act).
27. Mr Squires submits that in order to decide whether the Assad regime was a government for the purposes of this legislation, a court should apply the four-part test in Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA [1993] QB 54 (Hobhouse J (as he then was)). That test was applied in Secretary of State for the Home Department v CC by Lloyd Jones LJ (sitting as an additional judge of the Queen's Bench Division: see p 4242 C of the report of the decision of the Court of Appeal – [2014] 1 WLR 4240). That was a case in which abuse of process arguments were made by former controlees who challenged control orders and terrorism prevention and investigation measures. They alleged that they had been removed unlawfully from Somaliland to the United Kingdom. One of the issues in that case was the status of the entity which claimed to be the government of the territory of Somaliland.
28. Mr Eadie counters that argument with, in effect, two points. First, it is absolutely clear that the Assad government was at least the de facto government of part of Syria at the material time, and, second, in any event, since the Appellant's activities, on any view, must have involved the use of weapons, whether or not the Assad regime was a government is irrelevant (see section 1(3) of the 2010 Act, which makes the condition in section 1(1)(b) irrelevant if the use or threat of action involves the use of firearms or explosives). My impression was that Mr Eadie did not press the first of these arguments with great enthusiasm, and he seemed to accept that some disclosure on this issue might be appropriate.
29. In my judgment it is for present purposes arguable that the Woodhouse test is to be applied when a court decides whether an entity is a government for the purposes of section 1 of the 2000 Act. No other test has been suggested, and it is not satisfactory for a court to make an arbitrary or intuitive guess at whether an entity is a government for these purposes. There will no doubt be many cases in which there will be no dispute about how this test is to be applied. However, I consider that this is a more marginal case, when seen in the light of the material which the Appellant relies on. The British Government seems to have taken an equivocal line about the Assad government at the material time.
30. I reject Mr Eadie's argument based on section 1(3) of the 2000 Act. I accept Mr Squires' submission that, at least in part, HMT relied on activity which engaged section 1(1)(b), and did not clearly articulate its case as a firearms case, even if some of the materials referred to expressly or by implication involved firearms. In the light of that, and of the equivocal position of the British Government at the material time, I consider that HMT should disclose material that is relevant to the application of the Woodhouse test, in the first instance, into CLOSED.
31. The next issue is evidence about the activities of the United Kingdom Government in Syria at the material time, in so far as evidence relates to issues other than to the application of the Woodhouse test. By the end of the hearing, I think that Mr Squires had accepted, on the basis of SEH, that the activities of the UK Government in Syria would not, in themselves, mean the Appellant's designation was an abuse of process. Had he not done so, I would, in any event, have decided that they did not. It is, in my judgment, clear from SEH that the Appellant cannot rely on the activities of the UK Government in Syria to argue that (1) his activity was not terrorist activity as defined, or (2) his designation is an abuse of process, or (3) any such activities somehow have a bearing on the question of necessity.
32. I turn to the question of self-defence. I have described my reservations about the argument that an assertion that a person is acting in self-defence or in defence of another does not, of itself, mean that the activity (if it otherwise satisfies the definition of 'terrorist activity') is not terrorist activity. Mr Squires had a further point, which is that if, as he asserts, the Appellant was acting in self-defence, his conduct cannot have been 'designed to influence the government', or have been for the purposes of 'advancing a political, religious, racial or ideological cause'. I also have reservations about that analysis. Conduct such as that alleged against the Appellant can have more than one purpose or design, and it could be said that the only evidence about this is from the Appellant and may be self-serving. Section 1 does not refer to a 'sole' design or purpose.
33. Despite those reservations, I would not prevent the Appellant from relying on this aspect of his evidence in the appeal. Mr Squires asserts that HMT is required to make disclosure to answer the Appellant's evidence, but does not suggest what HMT should make disclosure about. I find it difficult to see what disclosure obligations such evidence could impose on HMT, as the most obvious source of evidence about the Appellant's design, purpose and activities is the Appellant himself. Since I have not ruled this argument out, I do not rule out disclosure either: if there is anything relevant to disclose, I direct HMT to disclose it, in the first instance, into CLOSED.

The second issue

34. I indicated during the course of argument that I would be reluctant to make, in OPEN, a decision of principle about disclosure which was not grounded in a consideration of the evidence. By the end of the oral argument, I think that Mr Squires was, realistically, content to accept that approach, provided that this issue was addressed in the normal disclosure process, and that it was acknowledged that he could renew his application for disclosure if, at the end of that process, he did not get a gist which enabled his client to know what changed between the date of designation and the date of revocation. I give that acknowledgement. I have, in any event, decided that there should be some disclosure into OPEN. I have more to say about this issue in my CLOSED judgment.