Amanat Ullah, R (on the application of) v National Crime Agency

Article 6 applies to judicial review where executive action directly and indefinitely restricts an individual’s fundamental rights, even if the decision is formally addressed to an intermediary. The decisive question is the practical effect of the measure, not its form or the identity of its immediate recipient.

The AF (No 3) disclosure principle extends beyond detention to measures which are tantamount to asset freezing and seriously restrict access to property. The claimant must receive sufficient information about the case against him to enable effective instructions to be given. He need not receive the underlying evidence or sources. Disclosure involves a core irreducible minimum, together with a fact-sensitive assessment of the value of further disclosure and the risk to national security.

The claimant, a Pakistani national, was captured in Baghdad in 2004, detained until 2014, and later obtained a substantial damages settlement from the interested parties without admission of liability. His solicitors sought consent under section 21ZA of the Terrorism Act 2000 to transfer the settlement monies to him. Consent was refused because the claimant had been designated by the United States as an alias of Abdul Rehman al-Dakhil, a suspected terrorist.

In judicial review proceedings, Chamberlain J directed determination of two preliminary issues: whether Article 6 applied and whether the claimant was entitled to disclosure under AF (No 3). The court also considered what level of disclosure was required in principle.

1. Article 6 applied. The refusal of consent directly affected the claimant’s right of access to his settlement monies. Although the formal application was made by his solicitors, they acted as his agents and had no independently vindicable fundamental right. The measure therefore constituted executive action against the claimant, or at least a restriction of his fundamental rights.
2. The fact that the proceedings were for judicial review did not prevent them from being directly decisive of a civil right. If the claim failed, the claimant might remain unable to access his money indefinitely. If it succeeded, access could follow a fresh decision. The possibility of a future agreement with the defendant was too speculative to alter that conclusion. The court relied on the principles stated in R (Alconbury Developments Ltd) v SSETR, R (oao Reprieve) v Prime Minister and Bank Mellat v HMT (No 4).
3. AF (No 3) applied in principle. The refusal of consent was tantamount to an asset-freezing measure and was at least as restrictive of access to the claimant’s money as the measures considered in Bank Mellat (No 4). The case was distinguishable from Tariq v Home Office, which concerned a damages claim brought by the claimant rather than coercive executive action imposed upon him.
4. The claimant had to receive sufficient information about the case against him to enable effective instructions to his solicitors. He was not entitled to the underlying evidence or its sources. The court identified a core irreducible minimum of disclosure, with an epicentre and periphery. Beyond the minimum, questions of fact and degree required a global assessment of the value of disclosure to the claimant against the risk to national security, rather than a piece-by-piece analysis.
5. The disclosure already provided was insufficient because it enabled no more than a general denial. The court directed further disclosure in its closed judgment.