Mastafa v HM Treasury

Article 6 of the Convention applies to statutory appeals against individual asset-freezing designations where the designation determines the person’s civil rights. The court must disclose sufficient information about the allegations to enable the designated person to give effective instructions to the special advocate. The required disclosure is fact-sensitive. The absence of a direct restriction on physical liberty does not materially reduce the fairness required where fundamental rights are seriously affected. A general statutory regime permitting closed material must be read consistently with Article 6. Wider observations in judicial-review proceedings concerning freezing orders do not necessarily form part of the ratio and are not binding where inconsistent with later authority.

The appellant challenged two Treasury designations made under the Terrorist Asset-Freezing etc Act 2010. The designations were based on the Treasury’s reasonable belief that he was or had been involved in terrorist activity. The preliminary issue was whether Article 6 applied to the statutory appeals and, if so, what disclosure was required where material could not be disclosed in the public interest.

The Treasury relied on R(Maftah & Khaled) v SSFCO and [2012] QB 477, together with the statutory special-advocate regime. The appellant relied on the control-order authorities, including Secretary of State for the Home Department v AF (No 3). The central issue was whether the statutory appeal required disclosure sufficient to permit a fair and effective challenge.

1. The court held that Article 6 applied to appeals under section 26 of the Terrorist Asset-Freezing etc Act 2010. An asset-freezing designation was directed at an individual, seriously interfered with property and potentially private-life rights, and was subject to a merits appeal rather than only judicial review.

2. The reasoning in R(Maftah & Khaled) v SSFCO and [2012] QB 477 concerned judicial review of Foreign and Commonwealth Office conduct relating to United Nations listing. The wider observation that freezing orders generally involved only public-law challenge was unnecessary to that decision. It was therefore not part of the ratio and was plainly wrong insofar as it excluded Article 6 from merits appeals under the Act.

3. Section 67(6) of the Counter-Terrorism Act 2008, applied by section 28(4) of TAFA, required the closed-material regime and rules of court to be read consistently with Article 6. The explanatory notes confirmed that fairness might require disclosure despite the use of special advocates.

4. Following Secretary of State for the Home Department v AF (No 3), the designated person had to receive sufficient information about the allegations to enable effective instructions to be given to the special advocate. The minimum disclosure depended on the facts of the particular case. It was unnecessary for all underlying evidence or source details to be disclosed.

5. The absence of a direct restriction on liberty did not materially alter the result. Asset-freezing designations interfered seriously with fundamental rights and therefore required disclosure sufficient to produce a fair hearing. The question of the precise disclosure required was left to the Rule 79 hearing.

The judgment determined a preliminary issue in statutory appeals against Treasury designations. The final disclosure question was left to the subsequent Rule 79 hearing.