Mastafa v HM Treasury

On 10 March 2011 and 8 March 2012 the Respondent determined that the Appellant, a British citizen, was a person it reasonably believed to be involved in terrorist activity and that it was necessary for purposes connected with protecting members of the public from terrorism that financial sanctions should be imposed on him. The power was exercised pursuant to the Terrorist Asset-Freezing etc Act 2010. S.2(1)(TAFA), which provides, so far as material:-

“The Treasury may make a final designation of a person for the purposes of this Part if –

(1)

they reasonably believe –

(2)

(i) that the person is or has been involved in terrorist activity …”

A final designation lasts for a period of one year but can be renewed, which is why there are two material designations in this case.

TAFA gives a right of appeal against the making of a final designation (TAFA s.26) and this court when dealing with such an appeal “may make such an order as it considers appropriate” (s.26(3)). There is an additional right to apply to the court to set aside any decision made by the Treasury in connection with their functions in dealing with designations, but in such an application the court is limited to giving relief or making an order such as may be given or made in judicial review proceedings.

The Appellant is appealing against both designations pursuant to s.26. On 1 June 2012 I directed that there should be the hearing of a preliminary issue to “determine the applicability of Article 6 [of the ECHR], the effect of Common Law on the Respondent’s disclosure obligations and/or the scope of any disclosure requirements pursuant to Article 6/Common Law in the Appellant’s appeal[s]”.

Since almost inevitably designations will have been made after taking into account material which is not or may not be disclosable because to disclose it would be contrary to the public interest, TAFA provides for the use of Special Advocates who can argue an appellant’s case in closed sessions. The regime in this respect is identical to that which was in force in dealing with Control Orders and is now in force in dealing with orders under the Terrorism Prevention and Investigation Measures Act 2011 (TPIMs). There is an obvious similarity between TPIMs and designations under TAFA (which I will refer to as an Asset Freezing Order) since each can only be made if there exists a reasonable belief that the person in question is or has been involved in terrorism and each is designed to protect the public from terrorism. Each produces serious constraints on the person’s ability to live his life as he would normally expect and so interferes with his human rights. In the case of TPIMs, there is at least an interference with his Article 8 rights and in the case of Asset Freezing Orders, with his rights under Article 1 of the First Protocol to the ECHR. There may also be an interference with his Article 8 rights.

Mr Swift Q.C. on behalf of the Respondent contends that Article 6 does not apply to these appeals and that the scheme set up by TAFA precludes the application of any Common Law powers which might otherwise be considered to reflect what Article 6 provides for, namely that a fair hearing requires that the person adversely affected by a decision should know sufficient of the material relied on against him to enable him to refute or to explain that material. Mr Swift relies on a decision of the Court of Appeal, R(Maftah & Khaled) v SSFCO [2012] QB 477 which persuaded Mitting J in Bhutta v HM Treasury [2011] EWHC 1789 (Admin) to decide that neither Article 6 nor Common Law principles applied to appeals under s.26 of TAFA and so the Respondent could rely on all material of which the public interest prevented disclosure notwithstanding that the Appellant was unaware of and so unable to deal with some or all such material. Parliament, if that decision is correct, must be taken to have considered that the Special Advocate procedure provided a sufficient safeguard for an appellant.

Before considering the arguments material to the preliminary issue, I should refer briefly to the terms of the order made against the appellant. It is not necessary to set out why he has been designated and I simply note that he has denied any involvement in terrorism and has said that he is unable to answer the allegations, which are wide ranging, without more knowledge of why he has been designated.

Asset Freezing Orders were originally imposed following the making of Orders in Council pursuant to powers conferred by Section 1 of the United Nations Act 1946. They resulted from the obligations imposed on HMG by resolutions of the UN Security Council designed to suppress and prevent the financing and preparation of acts of terrorism. The relevant Order in Council which is now superseded by s.2(1)(a) of TAFA was challenged. I decided that it should be quashed and my decision was upheld by the Supreme Court: see Ahmed v HM Treasury [2010] 2 AC534. This led to TAFA. The impact of the regime under the Order in Council is described by Lord Hope in Ahmed in these terms ([2012] 1 AC at p.611, Paragraph 4):-

“The orders provide for the freezing, without limit of time, economic resources and financial services available to among others, persons who have been designated. Their freedom of movement is not, in terms, restricted. But the effect of the Orders is to deprive the designated persons of any resources whatsoever. So in practice they have this effect. Persons who have been designated, as Sedley LJ observed in the Court of Appeal, are effectively prisoners of the State.”

Some of the requirements have been varied so that the effect on family members is not so serious. So far as state benefits are concerned (and the appellant is dependent on such benefits), they can be paid to him, in which case he must account once a month for all daily expenditures, or they can be paid to his wife and he will receive a small weekly sum in cash. He has chosen to have the benefits paid to his wife and he receives £10 per week. That, I was told, was the sum applied for by his solicitor and was not a limit on the amount which might be authorised. In addition, he has funds in two bank accounts but they are frozen and he cannot use them. While it may be that to describe him as a prisoner of the State is to use a somewhat emotive term, it is nonetheless obvious that the designation has a profoundly damaging effect on his ability to live his life in a way which approaches normality and the interference with his rights under Article 1 of the First Protocol is serious indeed.

Mr Squires submits that there is no material distinction between designation under TAFA and Control Orders or, now TPIMs. Each is aimed at those who are reasonably believed to be terrorists and is intended to protect the public from terrorist acts. Thus the decisions of the House of Lords in Secretary of State for the Home Department v MB [2008] 1 AC440 and of the Supreme Court in Secretary of State for the Home Department v AF (No 3) [2010] 1 AC269 apply. In each, the applicability of Article 6 was recognised. Mr Squires submits that what he calls AF(No 3) disclosure is required. By this he means such disclosure as gives sufficient information to the appellant about the allegations against him to enable him to give effective instructions to the Special Advocate in relation to them.

TAFA s.28(4) applies ss.66 to 68 of the Counter Terrorism Act 2008 (CTA). Schedule 7 of the CTA enables the Treasury to give a direction to any person operating in the financial sector designed to prevent the use of or making available funds for the purposes of terrorism. Sections 66 to 68 contain provisions about rules of court and the use of special advocates. Section 66(2) provides:-

“A person making rules of court must have regard to –

(a)

the need to secure that the decisions that are subject of the proceedings are properly reviewed, and

(b)

the need to secure that disclosures of information are not made where they would be contrary to the public interest.”

Section 66(4) authorises the making of rules which enable “the proceedings to take place without full particulars of the reasons for the decisions … being given to a party ..”

Section 67 deals specifically with rules about disclosure. It requires the rules to secure that the Treasury is able to apply to the court not to disclose material otherwise than to a special advocate or the court (s.67(3)). The court must prohibit any disclosure if it considers that such disclosure would be contrary to the national interest (s.67(3)(c)). If the court directs disclosure but the Treasury refuses, it cannot rely on that material in the appeal (s.67(5). Section 67(6)is important. It provides :-

“Nothing in this section, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with Article 6 of the Human Rights Convention.”

The rules are contained in CPR Part 79. They follow the requirements of the Act.

In Bank Mellat v HM Treasury [2010] EWHC 350 (QB) Mitting J had to consider a direction against the bank. It was submitted on behalf of the Treasury that Article 6 did not apply since it did not directly impinge on the bank’s rights under the ECHR. Mitting J rejected this argument, distinguishing Maaouia v France 39652/98, because :-

“The purpose of the order is to hamper Iran’s nuclear and ballistic programmes by shutting out Bank Mellat from the UK financial sector and, perhaps, by restricting its access to the global financial system as well. Thus, the target of the order is Bank Mellat: it will not serve its purpose unless Bank Mellat’s access to the UK financial sector is cut off. The purpose of the exclusion order challenged in Maaouia was not to impair the applicant’s private and family life or to prevent him from undertaking employment in France. It was to exclude him from France.”

Thus he decided Article 6 did apply. That decision was upheld by the Court of Appeal: see [2012] QB 91.

Lord Neuberger, MR, giving the only reasoned judgment, in dealing with the argument raised on behalf of the Treasury that the procedural requirements of Article 6.1 varied according to context, said this (Paragraph 18):-

“In relation to many Article 6.1 arguments I readily accept that a balancing exercise will be appropriate. However, there are irreducible minimum rights which Article 6.1 like the common law (albeit that the minimum rights may not always be identical: see Al Rawi v Security Service [2012] 1 AC531), requires to be accorded to any party involved in litigation to which the Article applies.”

Article 6.1 applies to a case involving the determination of a person’s civil rights. It is now accepted that a human right which is protected by the Human Rights Act 1998 is a civil right within the meaning of that term as defined by the ECtHR. I need not rely only on my own decision in Secretary of State for the Home Department v BC [2010] 1 WLR 1542 that that is so since it has been affirmed by others. The contrary was not argued by Mr Swift.

From what I have already set out, it would seem inevitable that Article 6.1 does apply and that accordingly what has been described as an ‘irreducible minimum’ of disclosure to enable a fair hearing for the appellant must be made. Indeed, in R(Bhutta) v HM Treasury [2011] EWHC 1789 (Admin) Mitting J observed that until the decision of the Court of Appeal in Maftah “all who practise in this field would have understood that the requirements of Section 66, Section 67 and CPR 79 were to be read as if they were subject to the requirements of disclosure imported by Article 6.” However, he decided that he was bound by Maftah to conclude that Article 6 did not apply to appeals under s.26 of TAFA.

I must therefore consider what the Court of Appeal did decide in Maftah and decide for myself whether it is distinguishable or binding on me. It is in my view crucial to identify what was in issue in Maftah. Both claimants in that case had been placed by the UN Security Council on a list of persons believed to be associated with Al Qaeda. Thus there was a requirement that their assets be frozen and that requirement was also put into effect by Council Regulation (EC) No 881/2002, itself of course binding on this country. The claimants could not challenge the order made pursuant to the Council regulation in the domestic courts. They sought judicial review of the alleged unlawful conduct in having them listed and the failure by the Foreign and Commonwealth Secretary to take proper steps to have them taken off the UN list. That was the context in which the issue of the application of Article 6 arose. Keith J decided that Article 6 did apply on the basis that the decisions taken in Whitehall were known to produce an automatic listing thus gravely affecting their human and so civil rights.

Sedley LJ, who gave the only reasoned judgment, cited extensively from the decision of the ECtHR in Ferrazzini v Italy (2001) 34 EHRR 1068. The subject matter of that case, which concerned delays in the Italian trial process, involved taxation. The Court decided that Article 6.1 did not apply because “tax matters still form part of the hard core of public authority prerogative, with the public nature of the relationship between the taxpayer and the tax authority remaining predominant”. (Paragraph 29). It pointed out that Article 1 of the First Protocol specifically reserved a State’s right to enact laws deemed necessary for the purpose of securing the payment of taxes. While that was not determinative, it was taken into account by the Court in deciding that tax disputes fell outside the scope of civil rights.

In Paragraph 24, Sedley LJ said this:-

“What seems to me to emerge from the present Strasbourg jurisprudence is that, while civil rights within the autonomous meaning of Article 6 can be brought into play either by direct challenge or by administrative action it is the nature and purpose of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights. Thus, for example, the nature and purpose of taxation are such that, despite its direct impact on property rights, taxation falls outside Article 6; while the nature and purpose of professional regulation are such that its impact on the right to earn a living may bring it within Article 6.”

I confess that I have real difficulty in the first sentence since to say that civil rights can be brought into play “either by direct challenge or by administrative action” seems to refer to different things and I am far from clear how ‘direct challenge’, presumably by a person affected, can bring civil rights into play. Further, the examples then given of the distinction between taxation and professional regulation do not obviously follow from the first sentence. The reality is that the ECtHR, as it said in Ferrazzini, took into account that taxation was a general burden imposed on all citizens and so the effects of taxation, common to all, were not to be regarded as affecting civil rights.

The purpose of a designation under TAFA is to freeze the individual’s assets and so inevitably to interfere with his human rights. It is not in any way a general burden imposed on all. It is specific to an individual. Thus it is difficult to see that its impact on private law rights is not to be regarded as its nature and purpose. It is Sedley LJ’s reasoning in Paragraph 26 which is central to this issue. He said this:-

“In my judgment the critical question is therefore the one spelt out in paragraph 24 above, uncoloured by the rhetoric of state sovereignty. I confess that because the nature and purpose of freezing orders can themselves be legitimately described both as a step in the international struggle to contain terrorism and as a targeted assault by the state on an individual’s privacy, reputation and property. The heart of Keith J’s decision [2010] EWHC 1868 (Admin) was that the orders were in form the first but in substance the second of these things; but I am not convinced that the Strasbourg jurisprudence looks to this distinction. It seems to look, rather, to the nature of the power itself. So seen, the making or procuring of a freezing order is, I think, a discharge of public functions, albeit with a dramatic impact on the civil rights of individuals. It is challengeable in public law, but the challenge is to the procuring and continuance of the order, not to its effects.”

I asked Mr. Swift how TPIMs and Control Orders could be distinguished if this reasoning applied to designations under TAFA. He was in my view unsurprisingly unable to give an answer. The reality is that there is no difference in principle since each is aimed at an individual and intended to affect his human and civil rights. It is to be noted that in the last sentence, Sedley LJ says that it is “challengeable in public law”, but that is a misrepresentation since the Act provides a right of appeal and the court will consider such an appeal on its merits and is not limited to public law grounds.

As I have said, Maftah was a claim for judicial review of the actions and inactions of the FCO. It was in those circumstances perhaps understandable that the court could decide that the civil rights of the claimants were not determined. Whether or not the FCO had acted lawfully did not concern the determination of the claimant’s civil rights. However, in paragraph 26 Sedley LJ seems to have applied his reasoning to exclude Article 6 in freezing orders generally. That was not necessary to the decision reached by the Court and so in my view is not part of the ratio decidendi of the case. It is not binding on me and I am afraid I regard it as plainly wrong since it is contrary to the decision of the Supreme Court in AF (No 3) and to the Court of Appeal in Bank Mellat.

There is another reason to believe that Article 6 applies to appeals such as these. I have already cited s.67(6) of the CTA. Mitting J decided that it did not indicate a Parliamentary intention that Article 6 should apply. In paragraph 19 of Bhutta he said this:-

“Accordingly, Mr Jones submits that the draughtsman must have had in mind – and so Parliament must have had in mind – an assumption that Article 6 applied. That is not what the section says. All it says is that nothing in the section or in the rules must be read as requiring the court to act in a manner inconsistent with Article 6. If in fact the section and the rules are of a kind which do not result in decisions, challenges to which attracts rights under Article 6, so the statutory saving is satisfied. The draughtsman could have provided that the rules were subject to the procedural requirements of Article 6, but he did not. And Parliament, in my judgment, cannot be taken to have enacted Sections 66 and 67 so as to require them to be read as if Article 6 applied.”

Mr Squires has drawn my attention to the explanatory notes which accompanied the Bill which became the CTA for both the House of Commons and Lords. Explanatory notes are a legitimate aid to construction, in that they can cast light on the ‘objective setting or contextual scene of the statute and the mischief at which it is aimed.’ And if there is contained in the notes a clear assurance by the executive about the meaning of a clause, that can be admitted against the executive in legal proceedings: see per Lord Steyn in R(Westminster City Council v NASS [2002] 1 WLR 2956 at paragraphs 5 and 6 on p.2959.

The explanatory notes for the Commons at paragraph 291 state as follows:-

“Clause 56 is a permissive clause outlining the potential scope of the rules of court to be prepared in connection with asset freezing proceedings. Clause 58 includes provision allowing the Treasury to withhold material which would otherwise have to be disclosed. But subsection (6) provides that the clause (or rules of court made under it) does not require the court to act in a manner inconsistent with the applicant’s Article 6 ECHR rights. The House of Lords recently considered (in Secretary of State for the Home Department v MB [2007] UKHL 46) the corresponding (and virtually identical) provision of the Prevention of Terrorism Act 2005 allowing the withholding of evidence (and use of special advocates), noting that the provision would not normally infringe an applicant’s Article 6 rights, but that it could in extreme cases. The House of Lords therefore ruled that it did not infringe Article 6, provided that an express preservation of the Article 6 rights was implied into the provision. For that reason, the qualification on the Rules’ ability to provide for proceedings which proceed without telling the applicant the nature of the case against him, has been expressly stated in the Counter-Terrorism Bill, so that the wording of the clause reflects the meaning the court would give it. In the light of the House of Lords decision, the provision is human rights compliant.”

Clause 58 became s.67. Paragraph 213 of the explanatory notes for the Lords (by then clause 58 had become Clause 71) states:-

“Subsection (6) however makes it clear that nothing in Clause 71, or in rules of court made under Clause 71, is to be seen as requiring the court to act in a manner incompatible with the right of the applicant to a fair hearing. This provision is included to ensure that this Part, and rules of court made under it, comply with the European Convention on Human Rights following the House of Lords decision in Secretary of State for the Home Department v MB.”

Mitting J did not have the advantage of being referred to these explanatory notes. Mr Swift argues that they do not indicate that Article 6 does apply but are consistent with the view that the Act with its use of special advocates is compliant with Article 6. That argument cannot prevail in the light of the reference to MB and in my view they do convey an explicit assurance that it is accepted that fairness for a person affected by an order requires the application of Article 6 as then explained in MB and now in AF(3) which has to an extent superseded MB.

If Article 6 does apply independently of s.67(6), the subsection is not needed. If it does not, s.67(6) is meaningless. Mr Swift’s suggestion that it was merely intended to reassure members of the Lords and Commons that the provisions of this part of the Act were ECHR compliant but did not actually show that Article 6 applied I find unacceptable. While he did not like the description that it was a sop to Parliament, that description seems to me to be apt if his argument is correct.

It follows that I have no doubt that Article 6 does apply to these appeals. Accordingly, it is not necessary to consider whether the common law would in any event provide the same safeguards for the appellant. It is to be noted that in Maftah Lord Judge CJ observed (p.488 Paragraph 32):-

“By way of emphasis I should add that I would need a great deal of persuasion to accept that the standard of fairness set by the common law for the determination of issues arising in civil litigation is any less robust than the standards set by Article 6 of the Convention.“

Smith LJ at paragraph 31 seems to have considered in agreeing that there was no difference in the approach to fairness between Article 6 and the common law that had it been necessary the common law would require such disclosure as would achieve fairness. I say had it been necessary since the Court of Appeal in Maftah was not asked to consider the position a common law as the only preliminary issue that had been listed before it was whether Article 6 was engaged.

The Court in Maftah did not, as far as I can tell, hear argument to decide whether if Article 6 did not apply the common law did. Mitting J decided, applying the decision of the Court of Appeal in W(Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 898, that the statutory scheme set up in the Act to use special advocates and prevent disclosure of any material which the public interest required should not be disclosed prevailed and so common law protection was excluded. I agree with Mitting J in this. But, as I say, it is unnecessary to go into further detail because the protection of the common law is not required.

In AF (No3) the court followed and applied the reasoning of the ECtHR in A v United Kingdom (2009) 49 EHRR 628. A concerned detention and so Article 5(4) was material. It was submitted on behalf of the Secretary of State that control orders were less serious since they did not involve detention. The Court did not accept this. As Lord Brown observed at paragraph 112, ‘the essential similarities … are altogether more striking than their differences’. He continued:-

“Both involve the making of orders on the basis only of reasonable suspicion of terrorist activity and, of course, both involve identical schemes for the admission of closed material and the use of special advocates.”

The variation of reasonable suspicion to reasonable belief for TPIMs has not made any difference since it is accepted that Article 6 applies to TPIMs. The contrary is clearly unarguable.

Mr Swift has submitted that, since designation does not involve any restriction on movement (such as an overnight curfew), it should be regarded as less harsh than TPIMs and certainly than Control Orders and so in approaching disclosure the court should adopt an approach which recognises this distinction. In AF(No3) the judges all accepted the approach indicated by the ECtHR in Paragraph 220 of its judgment in A. What disclosure was needed would have to be decided on a case by case basis, but the court observed in what seems to me to be the crucial sentence:-

“Even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocates with information with which to refute them, if such information existed, without his having to know the detail of sources of the evidence which formed the basis of the allegations.”

As the head note to the report of AF(No3) states at [2012] 2 AC270 E-F, a controlee had to be given sufficient information about the allegation against him to enable him to give effective instructions to the special advocates in relation to them.

The extent of disclosure required to produce a fair hearing will depend on the facts of the particular case. It has been said that there is an irreducible minimum. That is a label, but it is not a particularly helpful label since the irreducible minimum will itself depend on the facts of the particular case. There will be a minimum for that case and that minimum will amount to what is needed to enable the person designated to give effective instructions to his special advocate.

It has been submitted by Mr Swift that Article 6 does not require a uniform approach to disclosure in all cases. His starting point is Brown v Scott [2003] 1 AC 681 and observations of Lord Bingham at p.693 D-F. That case dealt with the lawfulness of the obligation on a defendant to identify the driver of a car suspected of having driven with excess alcohol. Lord Bingham’s observations said no more that than what a fair trial requires could not be the subject of a simple, unvarying rule or collection of rules but it was proper to take account of the facts and circumstances of particular cases.

Particular reliance is placed on the recent decision of the Supreme Court in Tariq v Home Office [2012] 1 AC482. The case involved a claim by a civil servant that he had been the subject of unlawful discrimination in his suspension following the arrest of close family members in the course of a suspected terrorism investigation. There had been a closed hearing following the appointment of a special advocate before the employment tribunal since reliance was placed on material which was not disclosable in the public interest. The court followed a trilogy of cases decided by the ECtHR culminating in Kennedy v UK 52 EHRR 207 2011 in saying that in claims such as Tariq was making Article 6 was not contravened even though reliance was placed on material which the public interest required should not be disclosed. Kennedy sought to discover from MI5 and GCHQ whether information about him was being processed. His request was dealt with by the Investigatory Powers Tribunal sitting in private. The restrictions were in the context of the fight against terrorism necessary and proportionate and ‘did not impair the very essence of the applicant’s Article 6 rights’ (Paragraph 190 cited at paragraph 35 of Lord Mance’s judgment in Tariq). As Lord Mance said in Paragraph 69 of his judgment a closed procedure was a very significant inroad into conventional judicial procedure which should only be contemplated or permitted if the Court was satisfied that it was essential in a particular case.

It is, I think, helpful to cite Lord Hope’s observations at paragraph 72 since they show the context of the case and explain why in such a case there was no breach of Article 6.

“The context will always be crucial to a resolution of questions as to where and how this balance is to be struck. Mr Tariq was employed by the Home Office in a capacity for which security clearance was required in the interests of national security. To be effective, security vetting will usually, if not invariably, require to be carried out in secret. Its methods and the sources of information on which it depends cannot be revealed to the person who is being vetted. Those who supply the information must be able to do so in absolute confidence. In some cases, their personal safety may depend on this. The methods, if revealed to public scrutiny, may become unusable. These are the unusual circumstances in which the claim Mr Tariq seeks to make in this case must be determined.”

These appeals are different inasmuch as they concern a measure taken against the applicant which affects his fundamental rights. In Paragraph 26 Lord Mance, having considered AF(No3) said:-

“But the balancing exercise called for in paragraph 217 of the judgment in A v UK depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself.”

It is true that in Tariq those of the judges who gave details in their judgments referred to AF(No3) as applicable since control orders affected the liberty of the individual. But I do not find any real difference between the effect of TPIMs, to which AF(No3) applies, and that of Asset Freezing Orders since, as I have said, fundamental rights are interfered with. I recognise that it may be right to recognise that the effect is not on liberty and so perhaps is less severe. But it would at most have a very limited effect on the requirements of disclosure which must still be such as produces a fair hearing. A similar argument was dealt with by me in Secretary of State for the Home Department v BC [2010] 1 WLR 1542 where it was argued that what was labelled a light touch control order which contained a condition of residence, a bar on foreign travel, an obligation to report to the police every day and a prohibition on association with some named individuals did not engage Article 6. I rejected that submission. Counsel then argued that a different balance should be struck if it did apply. That too I rejected since the restrictions contained were serious since they affected his right of association and to travel. The submission came perilously close to suggesting that a lesser degree of fairness was appropriate depending on the seriousness of the effect of the order in question.

I do not think I can do more than say that the requirements of disclosure are not in my view likely to be any less because this is not a TPIM and so there is no direct restriction on liberty. All will depend on the material considered on the Rule 79 hearing.