Begg v HMT

For designation under the terrorist asset-freezing regime, the relevant question is whether the authority reasonably believed that the person was or had been involved in terrorist activity and that financial restrictions were necessary. The criminal standard and the elements of a particular terrorism offence need not be established in the abstract. The broad statutory definition of terrorism does not obviously exclude self-defence or defence of others, although the issue was left open. Evidence concerning United Kingdom governmental activity abroad cannot itself establish that private conduct was not terrorist activity, render designation an abuse of process, or bear on necessity. Where the status of a foreign entity as a government is material, the court may require disclosure relevant to the applicable governmental-status test.

The appellant challenged his designation by HMT under section 2 of the Terrorist Asset-Freezing etc Act 2010. HMT had designated him on the basis of a reasonable belief that he had been involved in terrorist activity in Syria and that financial restrictions were necessary. HMT later revoked the designation, but the appellant contended that it should have been quashed from the outset and sought damages.

The judgment concerned an interlocutory disclosure hearing. The principal issues were whether evidence served by the appellant was relevant to the appeal, and the temporal and departmental scope of HMT’s disclosure obligations.

1. Relevant statutory question. The appeal concerns whether HMT reasonably believed that the appellant was or had been involved in terrorist activity and considered financial restrictions necessary under section 2 of the Terrorist Asset-Freezing etc Act 2010. HMT did not, in the abstract, need a reasonable belief that the criminal offences charged had been committed on the balance of probabilities. The criminal and civil provisions should, so far as possible, be interpreted consistently where they use common concepts.
2. Governmental activity in Syria. Applying the reasoning in R v SEH [2016] EWCA Crim 1609, the appellant could not rely on the activities of United Kingdom governmental agents to show that his own activity was not terrorist activity, to establish abuse of process, or to challenge the necessity of designation. Government agents operate within statutory authorisation and safeguards which do not apply to private individuals.
3. Government status. It was arguable that the four-part test in Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA [1993] QB 54 should be applied in deciding whether an entity was a government for the purposes of section 1 of the Terrorism Act 2000. Disclosure relevant to that issue was therefore directed, initially into CLOSED.
4. Self-defence. The court expressed considerable reservations about treating self-defence or defence of another as an implied exception to the wide definition of terrorism. Parliament had expressly created defences in some terrorism provisions but not others. The issue was not finally decided, and the appellant was permitted to rely on the evidence for the purposes of the appeal. Any relevant responsive disclosure was also to be made initially into CLOSED.
5. The court declined to make a general OPEN ruling on the wider temporal and departmental scope of disclosure without considering the evidence. HMT was required to make some OPEN disclosure, with permission for the appellant to renew the application if the disclosure process did not provide an adequate gist of what had changed between designation and revocation.

This was a first-instance judgment of the Administrative Court on disclosure issues arising in the appellant’s statutory appeal. The judgment does not state an earlier judicial decision in the same proceedings.