On Thursday, the High Court made a Judgment in the case of 5 anonymous people who have been subjected to the Treasury's bureaucratic nightmare of financial asset freezing.
Read the text of the Judgment on the British and Irish Legal Information Institute website:
http://www.bailii.org/ew/cases/EWHC/Admin/2008/869.htmlNeutral Citation Number: [2008] EWHC 869 (Admin)
Case No: PTA 13, 14, 15, 17 & 19/2007IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURTRoyal Courts of Justice
Strand, London, WC2A 2LL
24 April 2008B e f o r e :
Mr Justice Collins
____________________
Between:
A, K, M, Q & G
Applicants
- and -
H.M. Treasury
Respondent________________
Essentially the Judge has ruled that the two Asset Freezing financial sanctions Orders in Council should be quashed, but leaving room for such sanctions to be properly imposed via an Act of Parliament.
Presumably there will be some new clauses added to the Counter-terrorism Bill 2007-2008, currently oozing its way through Parliament at the moment.
Imagine that a member of your family has been accused , in secret, of being involved in terrorism, somewhere in the world, but they have not actually been charged or convicted of any acts of terrorism in the UK.
Imagine that their financial assets i.e. bank accounts, savings, property, cash, pensions, social security benefits etc. are frozen by the UK Government, after the family member's name has appeared on an UN or EU or UK government financial sanctions list, which is promulgated to all the banks and financial institutions, notifying them that they could face unlimited fines and seven years in prison if they fail to freeze any bank accounts etc. of the person so listed.
The only way for a person to challenge being placed on such a list is to beg the UK Government to ask for their case to be reviewed. They cannot hire their own layers to assist them, without getting a Licence from the Treasury, to unfreeze some of their financial assets in order to pay for a lawyer.
Even if you do succeed in getting a lawyer, it is likely that some or even most of the "intelligence" which was used to put you on the sanctions list, was obtained as a result of Communications Interception, and cannot be presented either by the prosecution or the defence in a UK Court, by virtue of the Regulation of Investigatory Powers Act 2000 section 17 Exclusion of matters from legal proceedings
Other intelligence sourced "evidence", cannot be presented or challenged even via the dubious Special Immigration Appeals Commission style Special Advocate system, using national security cleared lawyers and judges, as used for Control Orders etc., because, despite Government promises to do so, 18 months ago, they have not yet bothered to set up or extend the Special Advocate system to cover Asset Freezing cases.
To say that this prejudices any chance of an appeal against any sort of mistake made by the UK or foreign bureaucrats, is an understatement.
This has all resulted in an odious , time wasting, petty bureaucratic, Kafkaesque system, which combines the worst of means testing intrusion in the family life of people who are not even directly accused of terrorism, and a jobsworth unwillingness, by minor officials to take actual decisions themselves.
The Judgment cites examples such as having to ask the Treasury about whether or not a car could be borrowed for a shopping trip to the supermarket, or whether giving someone an Oyster Card for travel in London could land the giver in prison for 7 years etc. The Decision about the car loan apparently required the bureaucracy to waste the time of a Minister - no wonder they have screwed up the regulation of the Northern Rock and other banks, if Treasury Ministers are having to decide on such petty matters, which bear no relation to actual international terrorist finance whatsoever.
The Judgment makes some welcome quotations of other legal precedents such as ;
"53. In R v Rimmington [2006] 1 A.C. 459, Para 33 Lord Bingham of Cornhill said that there were two "guiding principles" relevant in that case, namely:
"no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done".
Back when Gordon Brown was Chancellor of the Exchequer, and presumably thought that there might be a risk of some token democracy in the Labour party, and that he might have to face an election in order to succeed Tony Blair, he went on a propaganda offensive to try to convince the world at large, and, probably also himself, that he was "experienced in security matters", and therefore somehow suitable for the job of Prime Minister.
Part of this was his speech to the Royal United Services Institute, back in February 2006, which we tried to deconstruct or read between the lines of, as amateur New Labour Kremlinologists, in which he laid emphasis on his supposed efforts at denying international terrorists access to finance.
He blathered on about a Bletchley Park / Enigma code breaking style national effort, which implies a top priority national security project utilising all of the best scientific brains in the country, for "forensic accounting" to combat terrorist financing.
Like so many Labour politician's promises, this does not seem to have actually materialised, once the tabloid headlines had subsided.
We did notice, however, that the arrogant Treasury, under its control freak Chancellor, was granting itself immense new powers to snoop on people and businesses, as part of its efforts to claim that "the United nations" or "the European Union" had somehow forced the UK Government to freeze the the financial assets of an ever growing list of terrorist suspects. The fact that the UK Government and its allies in the USA, France, Germany etc. were actually the ones who pushed both the UN and the EU to adopt these financial sanctions in the first place, shows that this is another example of "policy laundering".
See Chancellor Gordon Brown further extends his financial snooping powers
The amount of money which has actually been frozen by this hugely intrusive and expensive bureaucratic system, is astonishingly low. The latest Quarterly report by Jane Kennedy, the current Financial Secretary to the Treasury: Written Ministerial Statements, Thursday, 31 January 2008, Treasury, Asset Freezing Regime (October - December 2007)
A total of 288 separate accounts containing approximately £1.4 million(2) of suspected terrorist funds are currently frozen in the UK.
This amount would not finance an average Cabinet Minister's second home, let alone represent a major dent in international terrorist finance since September 2001.
We suspect that the amount of money frozen each year would not even pay for "Mr Guthrie, the head of H.M. Treasury's Asset Freezing Unit.", even if it were to be permanently confiscated rather than just temporarily frozen.
There is a HM trasury Financial Sanctions web page, where you can sign up for email alerts and download the latest, most up to date Lists of people and organisations which are being subjected to such asset freezing orders. A measure of the accuracy and relevance of the bureaucracy involved, is the fact that 5 years after they died, the two British suicide bombers who attacked a bar in Tell Aviv in Israel, are still listed on this Consolidated List of Financial Sanctions Targets in the UK
53. Name 6: HANIF 1: ASIF 2: MOHAMMED 3: n/a 4: n/a 5: n/a.
DOB: 02/08/1981. POB: Bhowanj a.k.a: HANIF, Asif, Muhammad Nationality: British Passport Details: 037168576 (UK) issued on 3 December 1999. Previously 14461429 (UK) Address: 37 Lela Avenue, Hounslow, United Kingdom, TW4 7RU. Other Information: UK listing. Not EU/UN listed. Tel Aviv bombing April 2003 Listed on: 06/05/2003 Last Updated: 06/05/2003 Group ID: 7163.[...]
91. Name 6: SHARIF 1: OMAR 2: KHAN 3: n/a 4: n/a 5: n/a.
DOB: 13/03/1976. POB: Derby, United Kingdom Nationality: British Passport Details: 024762530 (UK) issued on 15 October 1996 Address: 60 Northumberland Street , Derby, United Kingdom, DE23 6UB. Other Information: UK listing. Not EU/UN listed. Tel Aviv bombing April 2003 Listed on: 06/05/2003 Last Updated: 06/05/2003 Group ID: 7570.
One of the major failings of this List is that the many Middle Eastern names all use anglicised spellings.
These new legal powers, which include criminal penalties of up to 7 years in prison, were not the result of any Primary Legislation i.e. a new or amended Act of Parliament, but they were smuggled through as an Order in Council, using the sneaky constitutional mechanism of the Royal Prerogative, wielded by Ministers, which meant that the detail of these measures was not even debated in Parliament, let alone amended or improved or sanity checked in any way.
We are still furious and astonished by the recent Judgment on the OGC versus Information Tribunal appeal, resulting from our Freedom of Information Act request for the early Gateway Review reports on the Home Office's Identity cards programme, in which the Office of Government Commerce succeeded in overturning a Judgment ordering the OGC to publish everything which was asked for, by the Information Tribunal, by claiming, that somehow mentioning a report by a Select Committee of the House of Commons, somehow contravened the Bill of Rights 1689 Parliamentary Privilege of free speech.
We are therefore puzzled why this Judgment by Mr Justice Collins, quotes a Ministerial Written Statement in Hansard, which must surely also be one of "the Proceedings of Parliament":
47 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.
The Judge is quoting a Ministerial Written Statement by the then Financial Secretary to the Treasury, Ed Balls, and he is, very fairly, criticising the Government for not having kept its promise.
See Written Ministerial Statement - Treasury - Terrorist Finance 10 Oct 2006 : Column 12WS
How is this any different from the Information Tribunal case, which did not actually criticise the Government in its own reference to "Parliamentary Proceedings", by quoting a section of the Select Committee on Work and Pensions report ?
Is this criticism allowed because it relates to some sort of judicial mechanism, or lack thereof ?
Will the Government seek to overturn this Judgment on similar spurious Parliamentary Privilege grounds ?
In our view both of these quotations should be allowed in a Tribunal or Court, as they are not actually attacking the freedom of speech of a Member of Parliament.
As you might expect, the Treasury is trying to Appeal against Mr Justice Collins' Judgment
http://www.hm-treasury.gov.uk/media/5/5/fin_sanctions_alqaida240408.pdf
But Mr Justice Collins did not question the veracity of Written Statement - he merely made a statement of fact that the procedure referred to in the Written Statement does not yet exist.
@ ukliberty - neither did the Information Tribunal criticise the Select Committee on Work and Pensions report.
The shyster legal logic goes something like this - if the Government appeals against the decision in a higher Court, then since the lower court or tribunal judgment or decision relies in part, on whatever one or more Members of Parliament have said or written i.e. "the proceedings of Parliament", then since the Government disagrees with this lower court or tribunal decision, they, the executive branch of Government, might in effect, be criticising the "pearls of wisdom" uttered by the blessed MP(s). Since they are forbidden from making such a criticism in a Court, by the Bill of Rights article 9, then that means that the Appeal Court or Law Lords etc. proceedings cannot be a "fair trial", and so the original lower court (High Court) or tribunal (Information Tribunal) judgment or decision gets quashed, as this would somehow be unfair to the Government.
It didn't criticise the Select Committee, that is true, but that is not the point.
It is because of the adversarial nature of the system that evidence will be questioned by your adversary in court. It is for that reason and Parliamentary privilege that you may not introduce anything originating from Parliament that he is bound to question, and the court itself may not rely on or be influenced by such evidence.
You can on the other hand make simple statements of fact originating from Parliament, which is what Mr Justice Collins did in the asset freezing case - in essence, that a Minister said he will create a process, and he has yet to create that process. Nothing wrong at all wrong with a judge saying that.
I think Mr Justice Burnton's judgement is carefully reasoned and explains exactly why the Tribunal erred in this case. For example, the Tribunal said it was influenced by the Select Committee's report, the very section it emphasised being questioned by the Government - this obviously falls afoul of Parliamentary privilege.
We may not like it, but that is the law and this is the result.
@ ukliberty - the stupidity of this law is such, that according to Mr. Justice Burnton, MPs or Select Committees of MPs, are not even allowed to voluntarily waive their own Parliamentary Privilege when publishing such a report.
Agreed.
There should be statutory provision for such waivers.