Freezing orders - Lists - Right to a fair trial - Terrorists

Secretary of State for the Foreign Office and Commonwealth Affairs v (1) E Maftah (2) A Khaled: CA (Civ Div) (Lord Judge LCJ, Lord Justice Sedley, Lady Justice Smith): 13 April 2011

The appellant secretary of state appealed against a decision ([2010] EWHC 1868 (Admin), [2011] ACD 12) that applications for judicial review made by the respondents (M and K) potentially involved the determination of civil rights within the meaning of article 6(1) of the European Convention on Human Rights 1950.

M and K’s names been placed on a UN list of persons believed to be associated with terrorism.

The purpose and effect of listing was to freeze the listed person’s assets, to place the release of any funds at the discretion of the executive, and thereby to make him a prisoner of the state.

M and K sought judicial review of decisions of the secretary of state to take steps which resulted in their listing, and not to take steps in relation to their delisting.

The issue of whether the claims involved any determination of civil rights within the meaning of article 6(1) was decided as a preliminary point.

The secretary of state argued that the alleged infringement of convention rights was, at most, a side-effect of a challenge to the legality of the exercise of sovereign powers.

The judge found against him, concluding that the substance of the claims concerned decisions that he knew would attack civil rights recognised by the convention.

Held: The term ‘civil rights’ under article 6(1) had an autonomous meaning, though it was unclear what that meaning was.

What emerged from the Strasbourg jurisprudence was that while such civil rights could be brought into play either by direct challenge or by administrative action, it was the nature and purpose of the administrative action that determined whether its impact on private law rights was such that a legal challenge involved a determination of civil rights.

There was no overriding class of exempted acts representing the exercise of the state’s sovereign power.

The nature and purpose of taxation, for example, were such that it fell outside article 6, while the nature and purpose of professional regulation were such that its impact on the right to earn a living could bring it within article 6, Konig v Germany (No1) (A/27) [1979-80] 2 EHRR 170 ECHR, Pellegrin v France [2001] 31 EHRR 26 ECHR and Ferrazzini v Italy (44759/98) [2001] STC 1314 ECHR considered.

The nature and purpose of freezing orders could be described both as a step in the struggle to contain terrorism and as a targeted assault by the state on an individual’s privacy, reputation and property.

The judge’s conclusion was that while the listing of M and K was, in form, the first of those alternatives, it was, in substance, the second.

The Strasbourg jurisprudence, however, did not make such a distinction but looked to the nature of the power itself.

Looked at in that way, the procuring of a freezing order was a discharge of public functions, albeit with a dramatic impact on the civil rights of the individual concerned.

While it was challengeable in public law, the challenge was to the procuring and continuance of the order rather than as to its effect (see paragraphs 24-26 of judgment).

Appeal allowed.

Jonathan Swift QC (instructed by Treasury Solicitor) for the appellant; Rabinder Singh QC, Dan Squires (instructed by Public Law Solicitors) for the respondent.