A, K, M, Q & G v HM Treasury

An Order in Council made under the United Nations Act 1946 may implement only what is necessary and expedient to give effect to the relevant Security Council resolution. It cannot create a materially wider designation test, establish broad criminal offences, or make effective judicial scrutiny impossible. Where fundamental rights are affected, the implementing measure must involve the least possible interference with those rights. The court must retain a practical ability to examine whether the applicable factual threshold is met, although it cannot set aside a freezing obligation imposed by a mandatory Security Council listing. Criminal offences must satisfy legal certainty and should be defined by Parliament where substantial policy choices are involved. The appropriate approach to proof is to consider all the evidence and decide whether, taken as a whole, it establishes the grounds for the order.

Five applicants challenged asset-freezing measures imposed under the Terrorism (United Nations Measures) Order 2006 and, in G’s case, the Al-Qaida and Taliban (United Nations Measures) Order 2006. The challenges concerned the vires of the Orders, compatibility with fundamental rights, the availability and scope of judicial review, the use of special advocates, the burden and standard of proof, and the legality and certainty of the criminal offences created by the Orders.

G was automatically designated because he appeared on the United Nations Sanctions Committee list, whereas the other applicants were designated by Treasury directions. The court treated G’s application as a judicial review claim and determined the preliminary issues and the wider challenge to the Orders.

1. Outcome. The court concluded that both Orders should be quashed, subject to further submissions on the appropriate form of order. Freezing measures could still be enacted in a lawful form to comply with the United Nations resolutions.
2. The mandatory obligation to implement the Security Council resolutions did not itself permit the court to set aside the freezing of assets of a person who remained on the relevant United Nations list. The deficiencies in the international delisting procedure therefore did not prevent freezing. However, judicial review had to retain a practical capacity to examine whether the factual basis for listing existed. If the court found that the necessary threshold was not met, the Government would be bound to pursue delisting. Review was not confined to the most marginal form: [36].
3. Under s.1 of the United Nations Act 1946, an Order in Council could be used only where it was necessary and expedient to apply the relevant resolution. The designation test in the Terrorism Order, based on reasonable suspicion that a person may commit or facilitate terrorism, went materially beyond the resolution’s requirement to freeze assets of persons who commit, attempt, participate in, or facilitate terrorist acts. The wider test was not a necessary or expedient means of implementation: [37]-[40].
4. The Orders also created serious legal-certainty problems. Their wide definition of economic resources and strict-liability offences could expose family members and others to severe criminal penalties without adequate warning of what conduct was prohibited. At minimum, liability should depend on whether the supplier knew or ought to have known that the asset could result in funds being made available for terrorist purposes. Determining the proper legislative scheme was a matter for Parliament: [42]-[46].
5. The inability to use intercept material under ss.17 and 18 of the Regulation of Investigatory Powers Act 2000 meant that the court could often be unable to conduct a fair assessment of the designation issue. The use of an Order in Council was therefore not expedient unless an appropriate exception could be provided, which the Orders did not do: [41].
6. Questions of burden and standard of proof were unhelpful. In both types of challenge, the court should consider all the evidence and decide whether, taken as a whole, it established the grounds for the order, following Secretary of State for the Home Department v MB [2007] QB 415: [48].

First-instance judgment in the Administrative Court. The court determined preliminary issues and concluded that both Orders in Council should be quashed, subject to submissions on the appropriate order.