Secretary of State for the Home Department v Lord Alton of Liverpool & Ors

An organisation is not “otherwise concerned in terrorism” merely because it formerly committed terrorist acts and might resort to terrorism again. Under section 3(5)(d) of the Terrorism Act 2000, there must be a sufficiently close current nexus with terrorism, such as retaining a military capability for terrorist purposes, taking steps to acquire one, or promoting or encouraging terrorism.

Where proscription interferes with fundamental rights, the statutory judicial-review appeal requires intense and detailed scrutiny of the evidence. A decision-maker cannot maintain proscription solely from past terrorism, a lack of public renunciation, and a speculative fear of future resumption where the evidence shows no present terrorist apparatus, preparation, or encouragement.

The People’s Mojahadeen Organisation of Iran (PMOI) was added to the list of proscribed organisations by the 2001 Order. Thirty-five parliamentarians applied under the Terrorism Act 2000 for its removal, relying on the cessation of military activity, its disarmament in Iraq, and the absence of later terrorist activity or military capacity.

The Secretary of State refused the application. She considered that PMOI had not clearly and voluntarily renounced terrorism and might resume it. The Proscribed Organisations Appeal Commission allowed the respondents’ appeal on 30 November 2007, holding that the refusal was flawed on judicial-review principles.

The Secretary of State sought permission to appeal on a question of law. The central issue was whether PMOI could remain “otherwise concerned in terrorism” under section 3(5)(d) despite its lack of current terrorist capability or activity.

1. Permission to appeal was refused. The proposed appeal had no reasonable prospect of success. The Commission was entitled to allow the deproscription appeal because the Secretary of State’s conclusion that PMOI remained concerned in terrorism was flawed.

2. Section 3(5)(d) of the Terrorism Act 2000 covers an organisation that is presently inactive but retains a military capability for the purpose of carrying out terrorist acts. It also covers an organisation taking positive steps to acquire that capability. The present nexus with terrorism is then close and obvious.

3. By contrast, an organisation with no terrorist capability, which takes no steps to acquire one and does not promote or encourage terrorism, is not “otherwise concerned in terrorism” merely because its leaders may contingently intend to return to violence. An organisation which has chosen to pursue its aims by non-violent means is not concerned in terrorism merely because it may later change its mind.

4. The Commission was required to conduct intense and detailed scrutiny. Whether an organisation is concerned in terrorism is essentially factual, and proscription significantly interferes with fundamental rights. That scrutiny remained a judicial-review exercise: the Commission did not unlawfully substitute its view where it identified the wrong statutory question, relevant matters omitted from the decision, and the only conclusion a reasonable decision-maker could reach.

5. There was no reliable open or closed material showing that PMOI retained an intention to resume terrorism. More importantly, after its 2003 disarmament there was no evidence that it retained or recreated a military structure, sought weapons, trained or recruited personnel for violence, prepared for terrorism, or encouraged others to commit it. The Secretary of State had impermissibly treated past terrorism and a speculative future fear as sufficient. The only reasonable conclusion was that PMOI was no longer concerned in terrorism.

• Court of Appeal (Civil Division): The Secretary of State’s application for permission to appeal on a question of law was dismissed: [2008] EWCA Civ 443.
• Proscribed Organisations Appeal Commission: On 30 November 2007, the Commission allowed the respondents’ appeal against the refusal to deproscribe PMOI. It held that the refusal was flawed on judicial-review principles.