Youssef, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

On 29 September 2005 the claimant’s name was placed on a list of entities and individuals designated as associated with Al-Qaida by a committee of the United Nations Security Council, otherwise known as the 1267 Committee. I will refer to it as the Sanctions Committee. The effect of the listing was to freeze his assets and impose a travel ban. He remains on the list. The Sanctions Committee consists of all the member states of the Security Council for the time being. Decisions to list require unanimity. Decisions to de-list also require unanimity, except where a request to de-list is made by the designating state or states or where a recommendation to de-list has been made by the Ombudsperson (whose role is explained below). In those circumstances unanimity is required to retain listing, subject to the possibility of referral to by the Security Council itself. Since 2009 the UK has been attempting unsuccessfully to have the claimant de-listed.

In these judicial review proceedings the claimant challenges the legality of the Foreign Secretary’s decision to agree to his listing in 2005. He also challenges the legality of the Foreign Secretary’s omission since 2009 to pursue two courses of action which the claimant asserts that he ought to have taken with a view to freeing the claimant’s assets.

The claimant’s quest has already taken him once to the Supreme Court. The case is reported under the title Ahmed v HM Treasury [2010] UKSC 2, [2010] 2 AC 534. He won the case, but his victory has been of no practical benefit for reasons which will become apparent.

The Sanctions Committee was established by Security Council Resolution (SCR) 1267 (1999). The Security Council decided by paragraph 4 that all states shall:

By Article 25 of the UN Charter member states agree to accept and carry out the decisions of the Security Council in accordance with the Charter.

Article 103 of the Charter provides:

It was held by the House of Lords in R (Al-Jedda) v Defence Secretary [2007] UKHL 58, [2008] 1 AC 332, and recognised by the Supreme Court in Ahmed v HM Treasury, that resolutions of the Security Council therefore prevail over a member state’s obligations under the European Convention on Human Rights.

The provisions of SCR 1267 have been repeated and supplemented in a series of further SCRs. At the time of the claimant’s listing, the most recent resolution was SCR 1617 (2005). It included the following decisions:

Those provisions are repeated in the currently applicable resolution, SCR 1989 (2011), with the immaterial change that the Consolidated List has been renamed the Al-Qaida Sanctions List.

SCR 1904 (2009) introduced an independent Ombudsperson, whose role was described in this way:

The appointment of the first Ombudsperson, Judge Kimberly Prost, was made on 3 June 2010. In her first report to the Security Council, dated 21 January 2011, Judge Prost set out her working methods and her approach to the standards to be applied when considering requests for de-listing:

In an annex to her report Judge Prost drew attention to certain difficulties:

The process followed by the Ombudsperson has a number of stages culminating in the presentation of a report to the Sanctions Committee containing a comprehensive review of the case and the Ombudsperson’s recommendation. The ultimate decision whether to de-list remains one for the Committee, and the Ombudsperson will report the decision to the petitioner and the designating state. The list is a public list.

The processes of the Sanctions Committee are described in published guidelines, which include the following:

When a listing request is made by a designating state, any member of the Sanctions Committee can ask for time to consider it. The request will then be placed on hold for a period of up to six months (or in exceptional circumstances for a further three months), after which the request will be treated as approved unless the member concerned has objected to the proposal.

Listing decisions of the Sanctions Committee were originally given effect in domestic law by the Al-Qaida and Taliban (United Nations Measures) Order 2002, purportedly made under the United Nations Act 1946. In Ahmed v HM Treasury the Supreme Court held that the order was ultra vires. However, the claimant’s listing continued to have effect by reason of EU law.

In order to give effect to sanctions imposed by the Security Council within the EC, the Council of the EC adopted Regulation 881/2002, which has direct effect. The EC scheme largely mirrors that of the Security Council.

Article 2.1 of EC 881/2002 provides:

Article 2.3 provides:

Article 7 empowers the Commission in certain circumstances to amend Annex I.

Article 7(c) makes provision for persons included in Annex I to present a request to the Commission for a statement of reasons. As soon as the Commission obtains a statement of reasons from the Sanctions Committee, it must communicate it to the person concerned, providing him with an opportunity to express his views on the matter. The Commission must then review the decision to include the person in Annex I and must forward those observations to the Sanctions Committee.

Article 7(c) was introduced in response to the decision of the European Court in Kadi v European Commission, Cases C-402/05P and C-415/05P, 3 September 2008, that EC 881/2002 in its original form contravened the fundamental right to respect for property of a person who was listed, without the applicable procedures affording to that person a reasonable opportunity of putting his case to the competent authorities.

The claimant is an Egyptian national. On 6 May 1994 he arrived in the UK and claimed asylum. His grounds were that he had been harassed and tortured by the Egyptian security forces, because of his involvement with the Muslim Brotherhood and his work as a lawyer representing Muslim political activists. He was granted temporary admission.

On 23 September 1998 he was detained under the Prevention of Terrorism Act 1989. He applied for bail under section 3 of the Special Immigration Appeals Commission Act 1997. His application was heard by HH Judge Pearl on 3 December 1998. The Home Secretary opposed bail on the grounds that there was good and credible material to show that the claimant was a member of the Egyptian Islamic Jihad (EIJ), whose role had involved the obtaining of false documentation and the active promotion of terrorist activity, and that there would be a substantial security risk if he were released. Bail was refused.

On 23 December 1998 the Home Secretary rejected his claim for asylum on the ground that his claim was excluded by article 1F of the UN Convention relating to the Status of Refugees. The Home Secretary made this determination on the basis of the UK Security Service’s assessment that he was a senior member of the EIJ. There was no appeal against the Home Secretary’s decision.

The position at that stage was later summarised by Field J in Al Youssef v Home Office [2004] EWHC 1884 (QB) at paragraph 6:

Negotiations between the Foreign & Commonwealth Office (FCO) and the Egyptian Government regarding assurances were protracted. In the meantime in April 1999 an Egyptian Military Court found the claimant guilty of terrorist offences, in his absence, and sentenced him to life imprisonment. The British Embassy in Cairo was informed by the Egyptian authorities that the claimant had been identified as one of the leaders of a revolutionary organisation in confessions by other accused persons. In asylum proceedings involving another of the defendants it has been accepted that there was good evidence that the proceedings of the military court were unfair, that the evidence before it was probably obtained by torture and that no credence should be given to the convictions in that trial: Yasser Al-Sirri v Home Office [2009] EWCA Civ 22.

On 7 May 1999 an application by the claimant for habeas corpus was refused. He was finally released on 9 July 1999 after the Home Secretary concluded that there was no realistic prospect of the claimant’s removal. The claimant subsequently sued the Home Office for false imprisonment. His claim succeeded before Field J to the extent that it was found that he had been wrongly detained for a period of 14 days from 25 June 1999, after which date the judge found that there was no real prospect of being able to remove him.

On 29 March 2005 a state (the designating state) requested the Sanctions Committee to add twenty names, including that of the claimant, to the Consolidated List. The claimant was described as:

The UK placed a hold on the proposal so as to allow the Government to consider whether the named individuals met the criteria for designation.

On 14 September 2005 the Foreign Secretary agreed that the claimant met the criteria. He made his decision on the basis of a ministerial submission, dated 12 September 2005, and an attachment prepared by the Security Service. Parts of both documents have been redacted in accordance with a ruling by Silber J on a public interest immunity (PII) application.

The submission stated:

The Security Service’s assessment stated:

The claimant was obviously given no advance warning that he was under consideration for listing by the Sanctions Committee. Immediately after he was designated, he instructed his solicitors to seek the reasons for the imposition of the sanctions and the identity of the designating state. On 26 September 2008 the FCO wrote to the claimant’s solicitors stating that they did not have permission from the Sanctions Committee to disclose the identity of the designating state, or to release any information to him other than an Interpol Red Note, which gave details of his conviction and sentence by the Egyptian military court.

In a witness statement the claimant has set out his account of his practice as a lawyer in Egypt and his ill-treatment at the hands of government security forces which led him to flee the country. He stated:

Since 2005 the FCO has made repeated approaches to the Sanctions Committee, and to the designating state, in order to be able to disclose the identity of the designating state and provide information to the claimant about the reasons for his listing. Details of the efforts made are set out in the defendant’s evidence. They have been largely unsuccessful and the claimant still does not know the identity of the designating state, although he has a strong suspicion about it.

In June 2008 the Security Council directed the Sanctions Committee to conduct a review of all names on the Consolidated List. The UK carried out its own review process.

On 13 May 2009 the FCO Minister of State decided that the UK should seek the de-listing of the claimant. The minister made the decision in response to a ministerial submission, dated 12 May 2009, and an attached Security Service assessment, which have also been redacted. The submission stated:

The Security Service assessment stated:

Successive attempts by the UK to obtain the agreement of the Sanctions Committee to de-list the claimant have been unsuccessful. The UK has suggested to the claimant that he put his case to the Ombudsperson, but he has not done so.

On 18 March 2010 the claimant’s solicitors wrote to the European Commission asking that his name be removed from Annex I to EC 881/2002. The claimant informed the Commission that the UK had applied to the Sanctions Committee for his name to be removed from the Consolidated List. The claimant’s solicitors also asked the FCO to make representations to the Commission supporting the claimant’s request to be de-listed from the 881/2002 regime. The FCO’s response has been that it is not willing to make an application to the Commission for the de-listing of the claimant from the EU regime, but that the Commission is well aware of the Government’s view that he should no longer be on the Consolidated List which the EU regime mirrors. The response of the Commission to the claimant’s request has been that the Commission is in discussions with the Sanctions Committee.

On 7 September 2010 the Sanctions Committee put on its website a narrative summary of the reasons for the claimant’s listing. This was the first time that such details have been made available to him. The narrative summary states:

The claimant denies that there is any truth in any of the allegations made against him.

The claimant seeks a declaration “that the decision of the defendant to lift a “hold” in or around September 2005 which led to the [claimant’s] designation pursuant to 1267 Regime was unlawful”.

The claimant’s case is that the decision was unlawful for three reasons:

In the course of argument, two issues arose about the standard and process which the court should adopt in determining the challenge. One issue related to the standard of review; the other related to the consequences of the critical documents (i.e. those presented to the minister) having been redacted on PII grounds.

Mr Swift QC submitted that the court should apply the usual principles of public law when considering a challenge to the legality of a decision made by the executive. Under those principles the test of rationality is the Wednesbury test. Mr Otty QC submitted that in this case the court should adopt a “full merits” test, meaning that the court should determine for itself whether the claimant met the criteria for designation on the material supplied to the Foreign Secretary in September 2005.

In mounting his argument Mr Otty properly laid stress on features of the sanctions regime which have led to “due process” anxieties being expressed by many, including the Supreme Court in Ahmed v HM Treasury, the European Court in Kadi v European Commission and the Ombudsperson (in understandably diplomatic language) in her first report to the Security Council. The effects of a freezing order are liable to be far reaching and are intended to be so. In Ahmed v HM Treasury Lord Hope said, at paragraph 60, that it was no exaggeration to say that designated persons are effectively prisoners of the state: their freedom of movement is severely restricted without access to funds or other economic resources, and the effect on both them and their families can be devastating.

Once a designation is made, it will last until all members of the Security Council can be persuaded that it should be lifted.

Despite the severity of the consequences for the person concerned, he is given minimal information on which to challenge it. He can be told only what the members of the Committee are willing that he should be told. He cannot be told the identity of the designating state, unless the designating state agrees. As Lord Rodger observed in Ahmed v HM Treasury, at paragraphs 181-182, the Sanctions Committee is a political body and not a judicial body. There is, he said, an obvious danger that states will use listing as a convenient means of crippling political opponents whose links with Al-Qaida may be tenuous at best. He added that it may be that the Committee’s procedures are the best that can be devised, if it is to be effective in combating terrorism, but the harsh reality is that mistakes in designating will occur and, when they do, the individuals who are wrongly designated will have their assets frozen and lives disrupted, without any realistic prospect of putting matters right. The development of the Ombudsperson scheme suggests that the last statement may now be putting matters too high, because the Ombudsperson is of high repute and impartial. It is clear that her reports have in some instances led to people being de-listed. However, it remains the case that the ultimate decision rests with the Sanctions Committee and no part of the Ombudsperson’s report is published even in redacted form.

Against that background Mr Otty submitted that the court should adopt the process of making its own decision whether the person concerned met the criteria for designation, rather than limiting itself to judging whether the Foreign Secretary’s decision was unlawful under the usual public law principles. In support of his argument he relied on observations of Sir Anthony Clarke MR and Sedley and Wilson LJJ in Ahmed v HM Treasury when the case was in the Court of Appeal (paragraphs 119-121, 147 and 157). He also referred to passages from the judgment of Lord Phillips MR in Home Secretary v MB when that case was in the Court of Appeal: [2006] EWCA Civ 1140, [2007] QB 415 (paragraphs 48 and 54-65). Lord Phillips observed that a court conducting a judicial review has all the powers it requires, including the ability to substitute its own judgment for that of the decision maker, if that is required in order to comply with article 6 of the European Convention.

Mr Swift submitted, properly, that while the court has a responsibility to review the legality of the conduct of the Foreign Secretary, it is not the role of the court to sit in judgment on the Sanctions Committee or other members of it. The way in which the Committee operates is that members are not required to disclose to one another their reasons for agreeing or refusing to agree to a designation. A state may have information which influences its decision and which it is not prepared to share with others. This factor has a relevance to which I will return.

In making a decision whether to support or oppose the designation of an individual by the Sanctions Committee, the Foreign Secretary is not exercising a power derived from an Act of Parliament. He is acting on behalf of the Government in its capacity as a member of an international body, the Security Council.

Consequently, we are not in an area where the “principle of legality” explained in such cases as R v Home Secretary ex parte Pierson [1998] AC 539, 573-575 (Lord Browne-Wilkinson) and 587-590 (Lord Steyn) and R v Home Secretary ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffmann) is apposite. That principle applies in cases where a court is asked to construe legislation in a way which may be contrary to human rights embedded in the common law. Lord Hoffmann stated the principle in this way:

As the common law has developed, certain rights have come to be regarded as embedded in our largely unwritten constitution, so as to attract the application of that principle. The process of development of the common law is never complete, because it develops as society changes. But there is sometimes a tendency on the part of lawyers (as there has been in this case) to seek to use the “principle of legality” as a developmental tool providing an additional ground of challenge in a case purely involving questions of common law, i.e. not a case where the defendant is seeking to justify his action by reference to a statutory power. That is to misunderstand it. The “principle of legality” is a principle of statutory interpretation, derived from the common law.

I cannot see a proper basis in law for applying principles other than the usual public law principles in considering the legality of the Foreign Secretary’s decision. I recognise that the court could develop those principles by saying that in this case it should exercise its own judgment whether the claimant met the criteria for designation in September 2005, but I am not persuaded there is a sound basis for doing so, although I recognise the gravity of the consequences of the designation for the claimant.

Deciding whether a person meets the criteria for designation is likely in many cases to involve an evaluation of intelligence material which in the nature of things the Foreign Secretary is likely to be in a better position to make than a judge. Even those judges of the Administrative Court who deal with a lot of cases involving sensitive security issues cannot hope to have the same level of knowledge or sensitivity to surrounding security issues as the Foreign Secretary or Home Secretary of the day.

It is also a relevant factor, as Mr Swift properly reminded the court, that the courts customarily allow a wide measure of judgment to the Government in matters of security issues and foreign relations.

I would add that if the court were to carry out what has been termed a full merits review, I do not see how it could satisfactorily be done without the court having the entirety of the material which the Foreign Secretary had. That leads on to the next issue.

The ordinary result of documents being withheld from disclosure on PII grounds, or disclosed in redacted form, is that the court will decide the case as best it can on the disclosed material which is before it. That accords with the fundamental principles of open justice and equality of justice. In Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531 the Supreme Court refused to sanction the use of a closed material procedure (CMP), in an action for damages, whereby the defendant would have been able to place PII material before the court in support of its defence at a closed hearing, after disclosure not to the claimant but to a special advocate appointed to represent the claimant’s interests. The court held that if the law was to be changed to permit such a procedure, it should be done by Parliament.

It stands to reason that the withholding of material on PII grounds may result in a case being decided differently from the way in which it would have been decided if the material had been disclosed. In some cases that may work to the advantage of the claimant; in other cases to the advantage of the defendant. Sometimes, the withholding of the material may mean that the claimant is unable to establish a prima facie case; sometimes it may mean that the defendant is unable to rebut a prima facie case.

Until an advanced stage of these proceedings, both parties appeared to be approaching the case on the orthodox basis. However, both parties’ positions have now significantly changed. They both agree that the court should first decide the rationality challenge on the open material, but after that their positions diverge sharply.

The claimant says that if he succeeds in his rationality challenge on the open material, the court should make the declaration which he seeks. If he fails on the open material, the court should then go into a closed session, in which it should examine the redacted material after disclosure to a special advocate appointed on the claimant’s behalf. If on the full material the court decides that the rationality challenge is made out, it should so declare.

Mr Swift submitted that this would be wrong. He referred to correspondence between the parties last year in which the defendant asked if the claimant wished to have a CMP by consent. The answer then was no. Even at this stage the claimant is not asking that there should be an immediate CMP. He is asking that there should be a two stage determination, with the second stage being reached only if he is unsuccessful at the first stage. Mr Swift objected to such a process.

Mr Swift’s submissions went further. He submitted that even if the court was satisfied that the claimant should succeed in his rationality challenge on the open material, the claimant should nevertheless lose. He founded this submission on a recent judgment of Ouseley J in AHK v Home Secretary [2012] EWHC 1117 (Admin) and on a witness statement which has been served on behalf of the Foreign Secretary since that judgment. The witness states that he considers that the passages in the two documents submitted to the Foreign Secretary in September 2005 which have been redacted on PII grounds would have been fundamental to the Foreign Secretary’s decision to lift the hold on the claimant’s listing. Relying on the judgment in AHK v Home Secretary, Mr Swift submitted that on that evidence the claim must be dismissed, because it is impossible for the court fairly to review the Foreign Secretary’s decision. Any review would be on a false basis.

The resulting polarity of submissions can be summarised in this way. The claimant says that if he fails on rationality on the open material, he should not necessarily lose, but that there should then be a further hearing to examine the closed material. The defendant says that if the claimant loses on the open material, he should certainly lose; but that he should also lose even if he would otherwise have won on the open material, because the process of review will have been irretrievably flawed. Logically, on that argument there would be no reason to conduct the first stage enquiry, which would be a waste of time and costs and would be, ex hypothesi, a procedure regarded by the court as incurably flawed.

As to the claimant’s submissions, I say nothing about what would have been the position if the parties had jointly requested a form of judicial review including a CMP. That did not happen and that is still neither party’s present wish. The defendant says that it is too late in the day to consider a CMP. The claimant says that it is not too late to consider it, but that it would be premature to hold it, because he first wants the court to decide the case on the open material.

I do not consider that the two stage process advocated by the claimant would now be right as a matter of case management and, more fundamentally, as a matter of justice. As I have said, the risk that the withholding of PII material may lead to a party winning, who would otherwise have lost, is two sided. A CMP would go some way towards ameliorating the bilateral risk, but with attendant disadvantages. However, that is not what the claimant seeks at this stage. Mr Otty advocates a “heads I win, tails you lose” process, giving the claimant a double chance of winning – first without the PII material and secondly with it. I see no justice in that one sided approach. As to a bilateral approach, it would make no sense for the court to consider the case on the open material if it were subsequently open to either side to ask the court to reconsider it on the redacted material. Directions were given by Silber J at a preliminary hearing, with the parties’ consent, for a PII hearing to be followed by the present hearing, in accordance with normal practice, and there is no good reason to allow a change at this stage.

As to the defendant’s position, I do not wish to comment directly on the judgment of Ouseley J in AHK v Home Secretary, because the issues before him were different from the issues before this court and we were told that his judgment may come before the Court of Appeal for direct review.

In my judgment, Mr Swift’s submission goes too far in the way that it was formulated. I do not accept that by a bare statement that matters withheld on PII grounds would have been fundamental to a public office holder’s decision, that decision becomes automatically proof against being judicially reviewed. Without in any way casting aspersions on the Foreign Secretary’s bona fides in this case, the risks of abuse which could follow from the court adopting such a principle are only too obvious.

However, it does not follow that the fact that material has been withheld on PII grounds will necessarily be irrelevant to the court’s decision. Depending on the issues and the particular facts, it may be highly relevant. Take the sanctions scheme in this case. It is a feature of the regime that the Foreign Secretary cannot disclose to the person whose assets have been frozen the nature of the information received from other member states, or from the designated state, or the identity of the designating state, without their consent. If the evidence of the FCO is that the Foreign Secretary made his decision on information from other member states or the designating state which he is not at liberty to reveal, the individual affected would not have any basis for asserting that the Foreign Secretary’s acceptance of that information was irrational. The evidence in this case does not go that far. Nevertheless, the fact that the court does not have the full picture has been recognised as a reason for it giving particular respect to the minister’s decision: Home Secretary v Rehman [2003] UKHL 47, [2001] 1 AC 153, at para 26, per Lord Slynn, with whom Lords Steyn and Hutton agreed.

Mr Otty made two main points, which are connected.

First, he emphasised that the question which the Foreign Secretary had to ask himself was whether there was a subsisting association between the claimant and Al-Qaida or an affiliate organisation, applying the criteria of the relevant resolution (SCR 1617).

There was, Mr Otty submitted, nothing in the documents submitted to the Foreign Secretary in September 2005 to show that the claimant met those criteria at that time.

Secondly, Mr Otty relied by way of comparison and contrast on the submissions made to the Minister of State in May 2009. They emphasised that there was then no current evidence of a continuing association with Al-Qaida and that evidence of a purely historic association was not enough. The submission in April 2009 acknowledged that in August 1999 the claimant had publicly left the EIJ and since then had involved himself with developing his career as a journalist. Mr Otty submitted that the approach adopted by the Security Service and the Minister of State in 2009 was entirely correct, and that there was no rational justification for having taken a different position in 2005. Furthermore, he observed that there was no evidence from the FCO pointing to any particular change of circumstances between 2005 and 2009.

In response, Mr Swift noted that paragraph 6 of the submission to the Foreign Secretary in September 2005 correctly stated the criteria for designation. (“The criteria for designation at the UN is that the individual is “associated with Al-Qaida”. Resolution 1617 (2005) sets out types of behaviour that indicate association in this context.”)

The submission to the Foreign Secretary went on to state that the Security Service had provided detailed assessments on the claimant and others, and that officials judged that two of the four individuals resident in the UK “meet the criteria for designation”. There is, Mr Swift submitted, no reason to suppose that the Foreign Secretary did not properly understand what the criteria were.

The Security Service assessment was that the claimant had been a leading member of the EIJ; that between his arrival in England in 1994 and his arrest in 1998 he was involved in the facilitation of false documentation for the EIJ; that his views remained extreme; and that the potential remained for him to re-engage with the EIJ.

Mr Swift submitted that in those circumstances it was not irrational for the Foreign Secretary to have concluded that the claimant met the criteria of being associated with the EIJ, as an affiliate of Al-Qaida.

I do not accept the argument that there had to be evidence of current involvement in the acts identified as indicative of association in order for the Foreign Secretary to have rationally concluded that the claimant met the criteria of being associated with Al-Qaida at the relevant time. Contrary to Mr Otty’s submission, I see no irrationality or impropriety in the Ombudsperson’s statement in her first report to the Security Council that:

Absence of evidence of current active participation may or may not signify absence of association, depending on all the circumstances. As the Ombudsperson recognises, each case calls for a comprehensive analysis. A person who has been deeply involved in a terrorist organisation may lie low and may possibly disclaim any connection with the organisation. Part of the task of the Security Service is to keep a watch on such people and form a view about them, taking into account (among other things) the current security situation. The Security Service did so in this case. It was their assessment that the claimant continued to hold extremist views and presented a continuing risk of participation in the activities of the EIJ.

Mr Otty submitted that even if the view taken by the Foreign Secretary might have been justifiable in 2000, or even 2001, it could not be rationally justified in 2005.

However, that was the assessment of the Security Service at that time on the material then available to it, and I am not persuaded that it was not open to the Foreign Secretary to accept it. It is well established that the courts will pay very high respect to ministerial security assessments on competence and constitutional grounds. Home Secretary v Rehman [2001] UKHL 47, [2003] 1 AC 153 is a case in point: see paras 26 (Lord Slynn), 31 (Lord Steyn), 56, 57 and 62 (Lord Hoffmann). It concerned the deportation of a person on the ground that he was considered to be a threat to national security. It has parallels with the present case not only because it concerned national security, but also because it involved a preventive jurisdiction in which the assessment of risk was critical.

Mr Otty made much of the fact that four years later the Security Service came to a different assessment, but it does not therefore follow that the view taken in 2005 was irrational. By 2009 the Security Service considered that the risk had diminished to the point at which it was not reasonable to maintain his designation. That was an exercise of judgment.

Mr Otty put the case in two ways. First, he submitted that on the evidence the Foreign Secretary made his decision on the basis of the claimant’s conviction by the Egyptian military court in circumstances where the Foreign Secretary knew that his conviction was based on evidence obtained by torture.

In my judgment the evidence does not support that submission. The court was also asked to consider the wider knowledge of the Government, in particular, the knowledge of the Home Office. The Home Office material seems to me to be damaging rather than helpful to the claimant’s case. I have referred earlier to the fact that the Home Secretary rejected his asylum claim on the basis of his EIJ involvement. That decision pre-dated his conviction by the Egyptian military court and there was no appeal against it.

However, the main thrust of Mr Otty’s argument in relation to torture was rather different. He submitted that the basis on which the designating state sought the claimant’s designation was his conviction in Egypt, as evidenced by the Interpol Red Note. Even if the Foreign Secretary had proper ground himself to conclude that the claimant met the criteria for designation, it was improper for the Sanctions Committee to agree to his designation on the ground sought by the designating state, since the conviction was based on evidence obtained by torture. In those circumstances, Mr Otty submitted that it was unlawful for the Foreign Secretary not to maintain a hold on the request for designation so as to prevent other members of the Sanctions Committee from designating him on an improper basis. Mr Otty submitted that for these purposes the Sanctions Committee was to be regarded as a judicial rather than a political body, and he relied on the ruling of the House of Lords in A v Home Secretary (2) [2005] UKHL 71, [2006] 2 AC 221, that it is repugnant to our principles of justice for evidence procured by torture to be used in judicial proceedings.

Mr Swift relied on various passages in that case in which the judges emphasised the difference between reliance on evidence derived from torture in judicial proceedings and reliance on such evidence by law enforcement bodies or security services for preventive purposes.

As to that point, I would be very reluctant to accede to the argument that it would have been acceptable for the Foreign Secretary to have relied on evidence which he had reason to suppose was obtained by torture in agreeing to an indefinite freeze on the claimant’s assets. The idea is inherently repugnant, but it is unnecessary formally to decide the point, because in my view the claimant’s argument is unsound for another reason.

On the premise that the Foreign Secretary lawfully decided that the claimant met the criteria for designation, I do not see that it would be right for this court to hold that it was his legal duty to tell other member states that, while he agreed with the designation of the claimant, he objected to the reason put forward by others and would for that reason not consent to the designation. As I have already said, different states may have different reasons for concluding that a person met the criteria, which they may or may not be willing to share with one another. I do not believe that it would be right for the court to dictate to the Foreign Secretary that he must instruct other member states as to what might be a permissible basis for the designation, and must prevent a designation (for which in his view the criteria were satisfied) unless and until he was satisfied that they were all proceeding on a basis which he considered to be proper.

The evidence from the FCO is that in making his decision in September 2005 the Foreign Secretary would have considered whether there were reasonable grounds for suspecting that the claimant met the criteria for designation, because that was the standard which was then applied.

Mr Otty submitted that this was too low.

If the Foreign Secretary were deciding the question today, I would expect him to apply the standard set out by the Ombudsperson in her report to the Security Council (unless the Security Council were to determine that some other standard should apply). Her formula is that the test to be applied is “whether there is sufficient information to provide a reasonable and credible basis for the listing”, but one cannot do justice to that formula without reading her accompanying explanation of it. In a footnote she observed that “In the domestic designation of terrorist entities in a number of common law jurisdictions, a test of “reasonable grounds to believe or a basis/to believe/suspect/be satisfied of” involvement in or commission of terrorist acts or activities is used.” She also noted that the Commonwealth’s Model Legislative Provisions on Measures to Combat Terrorism recommended a test of “reasonable grounds to suspect or to believe”. I do not consider that it was unlawful for the Foreign Secretary to apply the test which he did at the relevant time.

Mr Otty did not specify an alternative formula which ought to have been used, although there was reference to a balance of probability test. However, a balance of probability test is easier to apply to past acts than present risk evaluation. Reference was made in argument to observations of different members of the court in Ahmed v HM Treasury on the issue of standard of proof: see paragraph 58 (Lord Hope, with whom Lord Walker and Lady Hale agreed), paragraph 136 (Lord Phillips), paragraphs 170-173 (Lord Rodger), paragraph 199 (Lord Brown) and paragraphs 224-228 (Lord Mance). They did not share a unanimous view about the most appropriate standard, and their discussions show the difficulty in arriving at a definitive formula from the language of the Security Council resolutions. It was unnecessary for the Supreme Court to go further, because they were concerned with a question of construction of the United Nations Act 1946. As Lord Hope observed at paragraph 58, the standard of proof was left by the Security Council to member states, and the question for this court is whether the approach adopted by the Foreign Secretary was a legally permissible choice. I have given my answer to that question.

For those reasons I would dismiss the claimant’s application for judicial review of the Foreign Secretary’s decision in 2005.

The claimant’s second challenge was to the refusal of the Foreign Secretary to seek the claimant’s de-listing by the Sanctions Committee on the basis that he never met the criteria for designation, but had been designated on the strength of evidence extracted under torture. This challenge fails with the failure of the first challenge, as Mr Otty accepted. Mr Swift submitted that there were other reasons why it should fail, even if the first ground of challenge had succeeded, but it is unnecessary to go into those arguments.

The judicial review claim form includes a claim for:

The part of that claim which seeks an order that the Foreign Secretary should inform the Commission that the claimant had never met the criteria for designation by the Sanctions Committee fails with the failure of the claimant’s principal challenge, but he maintains the remainder of it. The Commission has power to remove the claimant from the European Sanctions regime, and the claimant has asked it to do so. He submits that the defendant ought to be required by law openly to support his claim, since the Foreign Secretary himself accepts that his assets ought no longer to be frozen.

I can see no legal basis on which this court could or should require the Foreign Secretary to take such action. He has formed a view that it would be unproductive, and possibly counterproductive, in that it might exacerbate the UK’s difficulty in trying to persuade the Sanctions Committee to de-list the claimant. That must be a matter for his judgment. There is a further point. If the claimant were de-listed by the European Commission while he remained on the UN Sanction Committee’s list, the UK would be thereupon in breach of its international obligation to carry out the decisions of the Security Council. The effect of the order sought by the claimant would therefore be to require the Government to take a course of action which, if successful, would place the UK in breach of its international obligations. It would not be right for the court to give such an order to the Government.

In opening the case, Mr Ottty understandably laid stress on the features of the sanctions regime which are capable of producing injustice and on the fact that the claimant has had his assets frozen for years, although the Government does not believe that there is present justification for them being frozen. Mr Otty argued his various points with skill but, for the reasons stated, I do not consider that he has any sustainable grounds of legal challenge to the decisions of the Foreign Secretary.

I agree.