| TERRORISM — Proscribed organisation — “Otherwise concerned in terrorism” — Home Secretary refusing to de-proscribe organisation on ground “otherwise concerned in terrorism” — Review by appeal commission — Standard of review to be applied to Home Secretary’s decision — Whether organisation having no capability for but merely contingent intention to resort to terrorism to be regarded as “otherwise concerned in terrorism” — Terrorism Act 2000 (c 11), s 3, 4, Sch 2 (as amended by Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 (SI 2001/1261), art 2)
Lord Alton of Liverpool and others v Secretary of State for the Home Department [2008] EWCA Civ 443; [2008] WLR (D) 141
CA: Lord Phillips of Worth Matravers CJ, Laws and Arden LJJ: 7 May 2008
An organisation that had no capacity to carry on terrorist activities and was taking no steps to acquire such capacity or otherwise to promote or encourage terrorist activities could not be said to be “concerned in terrorism” simply because its leaders had the contingent intention to resort to terrorism in the future.
The Court of Appeal so held in refusing an application by the Home Secretary for permission to appeal against the decision of the Proscribed Organisations Appeals Commission (“POAC”) on 30 November 2007 to allow an appeal by Lord Alton of Liverpool and 34 other members of the two Houses of Parliament against the Home Secretary’s refusal to allow their application pursuant to s 4(1) of the Terrorism Act 2000 and remove the People’s Mojahadeen Organisation of Iran (“PMOI”), previously known as Mujaheddin-e-Khalq, from the list of proscribed organisations in Sch 2 to the Act.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that PMOI was an Iranian political organisation. Its present stated purpose was the replacement of the Iranian theocracy with a democratically elected secular government. The parliamentarians accepted that PMOI had engaged in military activity against the Iranian regime prior to June 2001, as the only means available to them to oppose tyranny and oppression. They contended, however, that since then it had conducted no military activity, it had dissolved all its operational units inside Iran and successive secretary generals had renounced terrorism. It was common ground that, at the time of the Home Secretary’s decision, PMOI did not fall within s 3(5)(a)(b) or (c) of the Terrorism Act 2000. The question for the Home Secretary was whether she believed that PMOI was “otherwise concerned in terrorism” within the meaning of s 3(5)(d). The Home Secretary’s reasoning appeared to have been that PMOI remained “concerned in terrorism” because she had “reason to fear that terrorist activity that had been suspended for pragmatic reasons might be resumed in the future”. However, their Lordships agreed with POAC that an organisation that had no capacity to carry on terrorist activities and was taking no steps to acquire such capacity or otherwise to promote or encourage terrorist activities could not be said to be “concerned in terrorism” simply because its leaders had the contingent intention to resort to terrorism in the future. The nexus between such an organisation and the commission of terrorist activities was too remote to fall within the description “concerned in terrorism”. An organisation that had temporarily ceased from terrorist activities for tactical reasons was to be contrasted with an organisation that had decided to attempt to achieve its aims by other than violent means. The latter could not be said to be “concerned in terrorism”, even if the possibility existed that it might decide to revert to terrorism in the future. It was implicit that the legislation was aimed against organisations that were carrying on activities connected with terrorism. POAC had correctly subjected the Home Secretary’s decision to intense scrutiny, thereby carrying out a review according to the principles of judicial review that applied where a decision affected fundamental human rights. Applying that approach, POAC had concluded that the Home Secretary’s decision was perverse. There was no valid ground for contending that POAC had erred in law.
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Appearances: Jonathan Swift, Gemma White and Oliver Sanders (Treasury Solicitor) for the Home Secretary; Nigel Pleming QC, Mark Muller QC and Edward Grieves (Bindman & Partners) for the parliamentarians; Andrew Nicol QC and Martin Chamberlain (Treasury Solicitor) as special advocates.
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