Her Majesty's Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants) Her Majesty's Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant) R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty's Treasury (Appellant)
before
Lord Phillips, President Lord Hope, Deputy President Lord Rodger Lord Walker Lady Hale Lord Brown Lord Mance
JUDGMENT GIVEN ON
27 January 2010
Heard on 5, 6, 7 and 8 October 2009
Appellants A, K and M Tim Owen QC Dan Squires (Instructed by Birnberg Peirce and Partners)
Respondent Jonathan Swift Sir Michael Wood Andrew O'Connor (Instructed by Treasury Solicitor)
Appellant G Rabinder Singh QC Richard Hermer QC Alex Bailin (Instructed by Tuckers)
Respondent HAY Raza Husain Dan Squires (Instructed by Birnberg Peirce and Partners)
Intervener (JUSTICE) Michael Fordham QC Shaheed Fatima Iain Steele (Instructed by Clifford Chance LLP)
LORD HOPE, with whom Lord Walker and Lady Hale agree
On 13 December 2006 the appellant Mohammed al-Ghabra, referred to in these proceedings as "G", was informed that a direction had been made against him by HM Treasury ("the Treasury") under article 4 of the Terrorism (United Nations Measures) Order 2006 (SI 2006/2657) ("the TO") and that he was a designated person for the purposes of that Order. He was told that the direction had been made because the Treasury had reasonable grounds for suspecting that he was, or might be, a person who facilitated the commission of acts of terrorism. He was also told that, in light of the sensitive nature of the information on which the decision had been taken, it was not possible to give him further details and that the effect of the direction was to prohibit him from dealing with his funds and economic resources and to prevent anyone notified of the freeze from making funds, economic resources or financial services available to him or for his benefit. On 2 August 2007 the appellants Mohammed Jabar Ahmed, Mohammed Azmir Khan and Michael Marteen (formerly known as Mohammed Tunveer Ahmed), referred to in these proceedings as "A", "K" and "M", received letters in almost identical terms telling them that a direction had been made against them under article 4 of the TO by the Treasury.
A few days after G had been told that he had been designated under the TO he received a letter from the Foreign and Commonwealth Office saying the Sanctions Committee of the Security Council of the United Nations (otherwise known as "the 1267 Committee": see para 18 below) had added his name to its Consolidated List, that this meant that he was subject to a freezing of his funds, assets and economic resources and that these measures were binding on all UN member states with immediate effect and had been implemented in UK law. No mention was made at that stage of the domestic measure under which the restrictions were being imposed on him. But in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.