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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Lord Alton of Liverpool & Ors  EWCA Civ 443 (07 May 2008)
Cite as:  1 WLR 2341,  EWCA Civ 443,  WLR 2341,  2 Cr App R 31,  2 Cr App Rep 31
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COURT OF APPEAL
APPLICATION FOR PERMISSION TO APPEAL FROM
THE PROSCRIBED ORGANISATIONS APPEALS COMMISSION
AND IN THE MATTER OF THE PEOPLE'S MOJAHADEEN
ORGANISATION OF IRAN
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LAWS
THE RIGHT HONOURABLE LADY JUSTICE ARDEN
| The Secretary of State for the Home Department
|- and -
|Lord Alton of Liverpool and Others.
Nigel Pleming QC, Mark Muller QC and Edward Grieves (instructed by Bindman & Partners) for the Respondent
Special Advocates: Andrew Nicol QC and Martin Chamberlain
Hearing dates : 18th, 19th and 20th February 2008
Crown Copyright ©
Lord Phillips of Worth Matravers
This is the judgment of the Court.
The statutory provisions
"1. Terrorism: interpretation
(1) In this Act "terrorism" means the use or threat of action where - -
(a) The action falls within subsection (2),(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it - -
(a) involves serious violence against a person,(b) involves serious damage to property,(c) endangers a person's life, other than that of the person committing the action,(d) creates a serious risk to the health or safety of the public or a section of the public, or(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(1) For the purposes of this Act an organisation is proscribed if-
(a) it is listed in Shedule 2, or(b) it operates under the same name as an organisation listed in that Schedule.
(2) Subsection (1) (b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule.
(3) The Secretary of State may by order-
(a) add an organisation to Schedule 2;(b) remove an organisation from that Schedule;(c) amend that Schedule in some other way.
(4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism.
(5) For the purposes of subsection (4) an organisation is concerned in terrorism if it –
(a) commits or participates in acts of terrorism,(b) prepares for terrorism,(c) promotes or encourages terrorism, or(d) is otherwise concerned in terrorism.
4. Deproscription: application.
(1) An application may be made to the Secretary of State for an order under section 3(3) or (8)-
(a) removing an organisation from Schedule 2, or(b) providing a name to cease to be treated as a name for an organisation listed in that Schedule.
(2) An application may be made by-
(a) the organisation, or(b) any person affected by the organisation's proscription or by the treatment of the name as a name for the organisation.
(3) The Secretary of State shall make regulations prescribing the procedure for applications under this section.
(4) The regulations shall, in particular –
(a) require the Secretary of State to determine an application within a specified period of time, and(b) require an application to state the grounds on which it is made.
5. Deproscription: appeal.
(1) There shall be a commission, to be known as the Proscribed Organisations Appeal Commission.
(2) Where an application under section 4 has been refused, the applicant may appeal to the Commission.
(3) The Commission shall allow an appeal against a refusal to deproscribe an organisation or to provide for a name to cease to be treated as a name for an organisation if it considers that the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review.
(4) Where the Commission allows an appeal under this section, it may make an order under this subsection.
(5) Where an order is made under subsection (4) in respect of an appeal against a refusal to deproscribe an organisation, the Secretary of State shall as soon as is reasonably practicable-
(a) lay before Parliament, in accordance with section 123(4) the draft of an order under section 3(3)(b) removing the organisation from the list in Schedule 2, or(b) make an order removing the organisation from the list in Schedule 2 in pursuance of section 123(5).
6. Further appeal
A party to an appeal under section 5 which the Proscribed Organisations Appeal Commission has determined may bring a further appeal on a question of law to
(a) The Court of Appeal, if the first appeal was heard in England and Wales"
Proscription of PMOI
The application for deproscription
"Although other arguments will be developed in this document, the Application is based principally on the fact that, whatever the position on 29 March 2001 when the PMOI was proscribed, following substantial and significant changes in the circumstances of the PMOI since the organisation's proscription, it cannot be regarded as an organisation which is concerned in terrorism within the meaning of section 3(5) of the Act. These changes result partly in unilateral decisions of the PMOI and are partly the consequence of international developments."
"27. The PMOI's permanent cessation of any military activity is the result of a deliberate choice to abandon all military action and instead to use political will as a means of bringing about freedom and democracy in Iran. Taking account of domestic and international circumstances, the PMOI decided at an extraordinary Congress held in Iraq in June 2001, to put an end to its military activities in Iran (i.e. to all its military activities). The decision taken by the extraordinary Congress was ratified by the two ordinary congresses organised in early September 2001 and 2003. This policy has been stated publicly and the PMOI's leadership and membership signed statements to this effect.
PMOI dissolved its operations units inside Iran
28. It is generally accepted that the PMOI's military activities within Iran were organised by the organisation's internal branch there. Although independent in its activities, this branch nevertheless conformed to the decisions of the extraordinary Congress, thereby completely halting its operations. As a result, the internal branch lost its raison d'être and was definitively dissolved.
29. On 6 September 2004, in a public and formal address, then PMOI Secretary General, Mrs Mojan Parsai, announced, 'As it has declared on many occasions, the People's Mojahedin Organisation of Iran condemns all forms of terrorism and has played a major role in a combating terrorism and fundamentalism under the banner of Islam – inspired by the clerical regime…
In February 2006, in her speech on the anniversary of the fall of the Shah, the PMOI's current Secretary-General, Ms Sedigheh Hosseini, who was elected in September 2005, again condemned violence and called for a peaceful solution. She said 'We have said before and reiterate now that we are categorically opposed to and condemn any type of violence.' She added, 'We announced our commitment to the call by the Iranian Resistance's President-elect in October 2003 for a referendum… "
"14. There does not appear to be any documentary confirmation of the formal decision to renounce violence referred to in June 2001 (or the subsequent decisions later in 2001 and in 2003). JTAC are also unaware of this assertion. The absence of any formal statement confirming the abandonment of terrorist activity could well be regarded as significant.
15. Essentially the same point applies to the claim that the PMOI 'internal branch [has been] definitively dissolved' (i.e. its organisation within Iran). There does not appear to have been any formal statement to this effect. Clearly, both on this point and the one above, you should not rely simply on the absence of any formal announcement (or simply the fact that no document to such effect has been included with the application). However, in the absence of clear information from other sources the absence of any formal statements by the PMOI would appear to be a matter of some importance. In fact, one of the witness statements produced by the PMOI in 2002 claimed that the PMOI retained an armed wing in Iran."
"9. By its own admissions, the PMOI/MeK had been committing extensive acts of terrorism as recently as June 2001. If I am to be persuaded that such an organisation is no longer 'concerned in terrorism' for the purposes of section 3(5) of the 2000 Act, I would expect (at least) a clear, voluntary, renunciation by its leadership of the organisation's involvement in terrorism, together with a voluntary abandonment of its arms by its members. Neither the account of events in the document in support of the application nor the information otherwise available to me indicates that this has happened.
13. Looking at the matter as a whole, and even though I accept that during the period between Summer 2001 and Spring 2003, the number of attacks claimed by the MeK declined substantially, I do not accept the contention that PMOI/MeK has voluntarily or unequivocally renounced the use of terrorism. As I have stated above, your application provides no evidence in support of the contention that any such statement or definitive statement has been made, there is no such information available to me, and the statements made on behalf of the PMOI/Mek both in 2001 and 2002 would appear to be contrary to the contention advanced in your application.
14. Further, in order to be satisfied that an organisation that had been concerned in terrorism is no longer so concerned, I would also expect the organisation and its members to abandon arms voluntarily such that it was clear that the organisation had in fact renounced further terrorist activity.
22. In these circumstances, the events in Iraq do not lead me to conclude that the PMOI has ceased to be an organization concerned in terrorism. As indicated in paragraph 8 above, the PMOI/MeK has a long history of committing terrorist acts. There has been neither a properly published renunciation of the organisation's use of terrorism nor voluntary disarmament by its members. The events in Iraq indicate that its members had, for a significant period after June 2001 (the date your application indicates as the material date), retained their arms. Accordingly, even though there has been a temporary cessation of terrorist acts. I am not satisfied that the organisation and its member have permanently renounced terrorism…
23. Those members based in Iran are referred to in paragraph 28 of the document in support of the application. I note from that paragraph that what it describes as the 'PMOI's military activities' within Iran were 'organised by the organisation's internal branch there'. I also note the assertion that this branch was 'independent in its activities', but nevertheless halted its operations in response to the decisions of the extraordinary Congress and subsequently 'was definitively dissolved'. No evidence in support of these assertions is provided in the annexes to the application and I have no evidence from other sources to support these assertions. I am not in a position to assess whether any cessation of terrorist acts in Iran was in response to the alleged decisions of the extraordinary Congress or dictated by other reasons. Mere cessation of terrorist acts do not amount to a renunciation of terrorism. Without a clear and publicly available renunciation of terrorism by the PMOI, I am entitled to fear that terrorist activity that has been suspended for pragmatic reasons might be resumed in the future."
"Subject to Rule 29, the Commission must serve on the parties and any special advocate a written determination containing its decision and, if and to the extent that it is possible to do so without disclosing information contrary to the public interest, the reasons for it. "
We propose in the first instance to base our conclusions on the open material but will state, in so far as appropriate, the effect on these of the closed material.
i) that the Commission erred in its approach to the application of section 3(5)(d) TA (when read together with section 3(4) TA);
ii) that the Commission unlawfully substituted its own conclusion as to whether the PMOI was an organisation concerned in terrorism for the conclusion of the Secretary of State;
iii) that the Commission wrongly concluded that the Secretary of State had, in concluding that PMOI was an organisation concerned in terrorism, failed to have regard to relevant considerations;
iv) that the Commission's conclusion that the decision of the Secretary of State that PMOI was concerned in terrorism was perverse was itself a conclusion that is perverse in law; and
v) that in any event, if the Commission had allowed the Respondent's appeal, it should have remitted the question of whether or not PMOI was an organisation concerned in terrorism to the Secretary of State for reconsideration.
i) Whether, on a true construction of section 3(5)(d), PMOI was 'concerned in terrorism' depended critically on the intention of the leaders of PMOI as to its future conduct.
ii) Determining the future intention of the leaders of PMOI was a matter of assessment or evaluation.
iii) The applicant's evaluation of the future intention of the leaders of PMOI led her to believe that PMOI was concerned in terrorism. Accordingly she decided to refuse the application to de-proscribe PMOI.
iv) In reviewing that decision POAC should have applied a Wednesbury test and, in doing so, should have shown deference to the applicant's decision.
v) Had POAC adopted such an approach, it would not have found that the applicant's decision was flawed.
vi) POAC erred in construing section 3(5)(d) as requiring a current involvement with or capacity to engage in terrorist activities in order to render an organisation 'concerned in terrorism.'
vii) POAC wrongly held that the applicant had not considered the correct question.
viii) POAC then, inappropriately, subjected the applicant's conclusion to "an intense and detailed scrutiny."
ix) POAC then improperly substituted its own conclusions for those of the applicant and, perversely concluded that her decision was perverse.
i) The applicant's decision interfered with fundamental human rights and, accordingly, POAC correctly subjected it to 'intense scrutiny'.
ii) POAC correctly concluded that the applicant had not asked herself the right question.
iii) POAC correctly concluded that the applicant had not taken into account all the relevant considerations.
iv) POAC correctly concluded that had the applicant asked herself the right question and taken into account all relevant considerations she could not have concluded that PMOI was concerned in terrorism but would have been bound to conclude that PMOI was not concerned in terrorism. Accordingly her decision was perverse.
'Otherwise concerned in terrorism'
The applicant's definition
"In principle, section 3(5)(d) TA is sufficiently broad as to encompass a situation such as that under consideration by the Commission in the present case – i.e. of an organisation that has previously undertaken acts falling within sections 3(5)(a)-(c) TA, which has then not undertaken such acts for a period of time, but in relation to which the reason for such recent inactivity, and whether it is temporary, or tactical or permanent, forced or voluntary, all remain unclear."
This is not, however, a definition of 'otherwise concerned in terrorism' but an expression of the difficulty that there may be in deciding on the implications of a cessation from terrorist activity. Thereafter the skeleton attacks POAC's definition of the sub-section without suggesting any alternative other than to postulate that whether an organisation falls within the sub-section will be "highly fact-sensitive" (paragraph 47) and "highly evaluative", possibly calling for, inter alia, an evaluation of the organisation's "strategic and ideological objectives" (paragraph 53).
POAC's definition, which the respondents support
"124. In our view the criteria set out in sub-sections 3(5)(a) to (c) are focussed on current, active steps being taken by the organisation. There could be reasonable grounds for a belief that the organisation is concerned in terrorism based on the organisation's past activities, but that material would have to be such that it gave reasonable grounds for believing that the organisation was currently engaged in any activities specified in those three subsections. If the acts relied on occurred shortly before the decision being made by the Secretary of State they would be likely to provide powerful evidence to justify his belief, even in the absence of specific material that the organisation was at the time of the decision actively involved in, for example, planning a particular attack. Conversely, if the acts relied on occurred in the distant past, they would, without more, be unlikely to provide a reasonable basis for such a belief. Other factors would also affect the judgment to be made. We know only too well from the atrocities committed in the West in the last few years that some terrorist attacks can take many years to plan and execute, often using 'sleepers' I the target country. With such organisations, the lapse of a significant period of time between attacks may not be as significant as for organisations who, to all intents and purposes, are engaged in all-out military assault on the Government of a particular country.
125. Section 3(5)(d) of the Act is, however, rather different. It is clearly intended to be a general provision which sweeps up organisations who are "concerned in terrorism" that are not caught by the earlier subsections. We should note that defining a statutory test of "is concerned in terrorism" in terms that "an organisation is concerned in terrorism…if it is otherwise concerned in terrorism' is not, at first sight, particularly helpful or illuminating.
126. For present purposes, taking account of the definition of terrorism in section 1 of the Act, the full meaning of the subsection is 'otherwise concerned in the use or threat of action (as defined in section 1(2) of the Act) inside or outside the UK where the use or threat is designed to influence the government or to intimidate the public or section of the public (including a government and/or the public of a country other than the UK) and is made for the purpose of advancing a political, religious or ideological cause'. 'Concerned' in subsection 3(5)(d) must be activity ('action') of a similar character to that set out in the subsections 3(5)(a) to(c).
127. In our view, this could include an organisation which has retained a military capability and network which is currently inactive (i.e. not currently committing, participating in or preparing for terrorism) for pragmatic or tactical reasons, coupled with the intent of the organisation or members of it to reactivate that military wing (i.e. to commit, participate in or prepare for terrorism) in the future if it is perceived to be in the organisation's interests so to do. It would not, however, include an organisation that simply retained a body of supporters, without any military capability or any evidence of, for example, attempts to acquire weapons or to train members in terrorist activity, even if the organisation's leaders asserted that it might, at some unspecified time in the future, seek to recommence a campaign of violence. It cannot be said of an organisation in the latter category that a reasonable person could believe that it 'is otherwise concerned in terrorism' – i.e. that it is currently concerned in terrorism – merely because it might become involved in terrorist activity at some future date.
128. Furthermore the fact that the leaders of an organisation may, as between themselves, hold the view that a future resort to violence could not be excluded, would not meet the statutory requirement, unless it was coupled with some material to show that there were reasonable grounds for believing that the organisation was deliberately maintaining a military capability to carry that plan into effect or that positive steps were being taken at the time to acquire such a capability. Merely contemplating the prospect of future activity or expressing the desire to be a terrorist in the future without the ability to carry that into effect does not fall, without more, into any of the subsections of section 3(5). (Clearly it would be different if the organisation in such circumstances published an exhortation to commit acts of terrorism against a particular state or 'glorified' the acts of others who had conducted such acts because it would fall within section 3(5)(c).)"
"which he believes-
(a) is concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it, and
(b) has not established or is not maintaining a complete and unequivocal ceasefire."
The approach to review
"It is not our function to substitute our view for the decision of the Secretary of State. Ultimately at the First Stage the question remains whether a reasonable decision maker could have believed that the PMOI 'is concerned in terrorism' on the basis of all of the evidence that is now before us. It is our function, however, to scrutinise all of the material before us carefully and to examine its strengths and weaknesses to see if it provides reasonable grounds for the Secretary of State's belief. At the Second Stage, we must scrutinise all of the material to see if it provides a reasonable basis for the exercise of his discretion."
The material facts
"(i) PMOI had been engaged in persistent terrorist activity over a number of years; its claim to have renounced terrorism in June 2001 (or thereafter) was one the Secretary of State was not required to accept;
(ii) its claim thereafter to have retained military equipment for the purposes of self-defence was a claim that the Secretary of State was not required to accept;
(iii) its further claim "voluntarily" to have surrendered its military equipment in 2003 was not a claim that the Secretary of State was required to accept; and
(iv) PMOI was an organisation that often made public statements that were self-serving, and that the Secretary of State was entitled to disbelieve."
He submitted in his skeleton argument that in the light of these facts the applicant was required to "evaluate and assess all material circumstances and not restrict that consideration to the matters identified by the Commission". Later he added: "In a situation where an organisation has a long and active history of committing acts of terrorism, the Secretary of State was plainly entitled to be cautious when considering and assessing an application for deproscription based upon an assertion that that organisation had renounced violence."
"For the reasons set out below, we believe that the only conclusion that a decision-maker could reasonably come to in the light of [the] material [before POAC] is that –
(a) there was a significant change in the nature of the PMOI's activities in 2001 and thereafter, and
(b) in particular, there have been no offensive operational attacks by the PMOI operatives inside Iran since August 2001 or, at the latest, May 2002,
(c) the nature of the rhetoric employed in their publications and propaganda by the PMOI and other, related, organisations such as NCRI, changed significantly during 2001 and 2002 such that, from 2002, we were not shown any material which either claimed responsibility for any acts that could fall within the definition of terrorism for the purposes of the Act or even reported the actions of others carrying out such activities,
(d) although the PMOI maintained a military division inside Iraq (the National Liberation Army), it was completely disarmed by the US military following the invasion of Iraq, and
(e) there is no material that the PMOI has sought to restore or bolster its military capability (for example by purchasing weapons, recruiting or training personnel to carry out acts of violence against Iran or other interests).
Putting aside for the moment the assertion that a positive decision to cease all military operations was taken at an extraordinary Congress in June 2001, having considered all of the material before us we are satisfied that the only conclusion that a reasonable decision-maker could reach is that the PMOI's policies and activities changed fundamentally in the summer/autumn of 2001.
Given the absence of any material to the contrary, the only conclusion that a reasonable decision maker could reach is that, since the disarmament of the PMOI/NLA in Iraq [in 2003], the PMOI has not taken any steps to acquire or seek to acquire further weapons or to restore any military capability in Iraq (or, indeed, elsewhere in the world). The PMOI has not sought to recruit personnel for military-type or violent activities, the PMOI has not engaged in military-type training of its existing members and the PMOI has not sought to support others (i.e. other individuals or groups) in violent attacks against Iranian targets.
In our view, on all the relevant material a reasonable decision maker could only come to the conclusion that either there never was (contrary to the earlier claims of the PMOI) any military command structure or network inside Iran after 2001 or that, by some time in 2002, any such structure or network had been dismantled. There is no evidence of any present operation military structure inside Iran which is used to plan, execute or support violent attacks on Iranian targets. Nor is there any evidence that the PMOI has retained military operatives inside Iran with the intention of carrying out such attacks. That is consistent with the evidence that the PMOI has not carried out any attacks since August 2001, or May 2002 at the latest, and the absence of any evidence suggesting that the PMOI have attempted (whether in Iraq or Iran or, indeed elsewhere) to acquire weapons or a military capability following its disarmament in Iraq in 2003.
On the basis of the material before us, to the extent that the PMOI has retained networks and supporters inside Iran, since, at the latest, 2002, they have been directed to social protest, finance and intelligence gathering activities which would not fall within the definition of 'terrorism' for the purposes of the 2000 Act."
"Mere cessation of terrorist acts do not amount to a renunciation of terrorism. Without a clear and publicly available renunciation of terrorism by PMOI, I am entitled to fear that terrorist activity that has been suspended for pragmatic reasons might be resumed in the future." (paragraph 23)
To this can be added the applicant's statement
"…I believe that I continue to be entitled to have regard to what the nature and scale of activities was relatively recently in determining the application. This issue would not, of course, arise if the organisation has clearly ceased to be "concerned in terrorism". However, as it has not (in my belief) ceased to be so concerned, I believe that I can consider the nature and scale of the activities that were demonstrated only five years ago".(paragraph 26)
"348…there is no evidence that the PMOI has at any time since 2003 sought to re-create any form of structure that was capable of carrying out or supporting terrorist acts. There is no evidence of any attempt to 'prepare' for terrorism. There is no evidence of any encouragement to others to commit acts of terrorism. Nor is there any material that affords any grounds for a belief that the PMOI was 'otherwise concerned in terrorism' at the time of the decision in September 2006. In relation to the period after May 2003, this cannot properly be described as 'mere inactivity' as suggested by the Secretary of State in his Decision Letter. The material showed that the entire military apparatus no longer existed whether in Iraq, Iran or elsewhere and there had been no attempt by the PMOI to re-establish it.
349. In those circumstances, the only belief that a reasonable decision maker could have honestly entertained, whether as at September 2006 or thereafter, is that the PMOI no longer satisfies any of the criteria necessary for the maintenance of their proscription. In other words, on the material before us, the PMOI is not and, at September 2006, was not concerned in terrorism."
For the reasons that we have given we can see no valid ground for contending that, in reaching these conclusions, POAC erred in law.
The appropriate order