Terrorism Cases: Where Sanctions Designations Apply in Tandem with Criminal Proceedings
Begg v HM Treasury [2017] EWHC 3329 (Admin)
On 19 December 2017, the Administrative Court handed down its open judgment regarding disclosure in the case of Begg v HM Treasury. The underlying case relates to an appeal by Mr Begg against the Treasury’s revocation of his designation under section 2 of the Terrorist Asset-Freezing etc. Act 2010 (“TAFA 2010”).
Background
Mr Begg was charged with a number of terrorism offences in March 2014 in relation to a period of time he had allegedly spent in Syria in 2012-2013. However, several days before Mr Begg’s trial was due to start in October 2014, the CPS dropped the prosecution, stating that the Crown’s case had been undermined by information that had subsequently come to light. That information was not disclosed to Mr Begg.
At the same time as the terrorism charges were originally brought against him, Mr Begg was designated under section 2 TAFA 2010. TAFA 2010 provides the statutory framework for the imposition of unilateral anti-terrorism sanctions in the UK; section 2 gives the Treasury the power to designate individuals where it reasonably believes that those individuals have been involved in terrorist activity. The threshold for designation is therefore markedly lower than that required to secure a criminal conviction for terrorism offences. Designation triggers a number of draconian measures, including making it a criminal offence for anyone to make funds available to, or otherwise deal with, a designated person.
In Mr Begg’s case, the criminal charges and the section 2 designation were based on the same factual allegations. Unsurprisingly, therefore, when the criminal case against him collapsed, the basis for Mr Begg’s designation collapsed with it. The Treasury confirmed this by revoking his designation on 14 October 2014. However, Mr Begg challenged that revocation on the grounds that the Treasury should really have quashed his designation ab initio. In other words, Mr Begg challenged the Treasury’s determination that there had at some stage been a basis for designating him under section 2 TAFA 2010, even if that basis had subsequently evaporated.
Decision
At the hearing regarding the preliminary issue of disclosure, counsel for Mr Begg argued that evidence had been served that was relevant to certain issues on appeal, and that this imposed further disclosure obligations on the Treasury. Mr Begg’s main grounds of appeal in the underlying challenge are as follows: (i) his actions in Syria did not fall within the definition of terrorism because Bashar Al Assad’s regime was not a “government” within the meaning of section 1(1)(b) of the Terrorism Act 2000; and (ii) his actions in Syria were carried out in self-defence against Assad’s forces in Syria.
In relation to (i), the Court found that it was at least arguable that the relevant test to be applied to the issue of whether Assad’s regime was a “government” was the four-stage test set out in the case of Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA [1993] QB 54. To this extent, the Court held that the Treasury should disclose any information that was relevant to the application of the Woodhouse test. In relation to (ii), the Court expressed reservations about the self-defence argument generally but nevertheless decided that it would not prevent Mr Begg from relying on this aspect of the evidence in the main appeal. The Court therefore ordered the Treasury to disclose anything relevant to the issue.
Zubair Ahmad is a Special Advocate in Begg v HM Treasury [2017] EWHC 3329 (Admin)
All comments in this article were made by the author, Tom Cornell.
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