UK Liberty

Moron asset freezing

Posted in law and order by ukliberty on April 25, 2008

The Times:

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.”

Indeed.

… 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.”

The strange thing here is that Parliament wouldn’t have blocked a Bill along those lines… it’s passed worse!

Update

The judgement is now on Bailii.

Some quotes:

It is submitted that the orders are unlawful in establishing criminal offences which go far beyond what is reasonably required and offend against the principle of legal certainty. The very wide definition of economic resources makes it impossible for members of the family of the designated person in particular to know whether they are committing an offence or a licence is needed. … The solicitor for the applicants A, K and M was concerned to ascertain on their families’ behalf what could and could not be provided without the need for a licence and I gather that those in the Treasury who have to deal with those matters have had to consider whether licences should be granted on more than 50 occasions.

A specific query arose, and it is a good illustration of the absurdity which can result, in relation to the loan of a car to an applicant to enable him to go to the supermarket to get the family’s groceries. After some delay, the Treasury (in my view wrongly) decided that a licence was needed. The car was an economic resource and could be used to obtain or deliver goods or services. This was only resolved by the Treasury after seeking ministerial consideration.

Similar concerns have been raised in relation to an Oyster card to enable the applicant to travel and any borrowing of items for any purpose. Since the possible penalty on conviction is severe, the concerns are understandable and the effect on the applicant and his family, whose human rights are also in issue, is serious.

A further attack is made in that no procedure is set out to deal with the inevitable reliance on closed material. It is said by Mr Crow that there is no reason why the Court should not sanction the use of special advocates: it has that power in the exercise of its inherent jurisdiction: see R(Roberts) v Parole Board [2005] 2 A.C. 738. It is to be noted that as long ago as October 2006, the then Economic Secretary to the Treasury said, in connection with the TO on the day it was made:-

“The Treasury has agreed … to use closed source evidence in asset freezing cases where there are strong operational reasons to impose a freeze, but insufficient open source evidence available. The use of closed source material will be subject to proper judicial safeguards. The Government intend to put in place a special advocates procedure to ensure that appeals and reviews in these cases can be heard on a fair and consistent basis.”

That was 18 months ago. There is no such procedure in force. It is not for the court to devise a procedure particularly as it cannot deal with the constraints imposed by RIPA and there are resource considerations in the use of special advocates. Roberts case related to cases in which use of such material would be exceptional; cases under the Orders will regularly involve such material.

Finally, I come to the burden and standard of proof. I regard this as an unnecessary and unhelpful approach. In judicial reviews of the AQO and applications under Article 5(4) of the TO, the approach should be the same. It should follow that laid down by the Court of Appeal in Secretary of State for the Home Department v MB [2007] QB 415 at paragraph 67. This requires the court to consider all the evidence put before it and decide whether, taken as a whole, it shows that the grounds for making the order are established.

The result of this judgment will, I think, be that both the Orders must be quashed. This is not to say that freezing orders cannot be made to comply with the UN resolutions. But in my view it is essential that Parliament considers the way in which what is required should be achieved and it is not proper to do it by relying on s.1 of the 1946 Act. However, I will hear counsel on the appropriate order that I should make.

Update 2

Some excellent detail on SpyBlog.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: