Court of Appeal

Published May 13, 2008

Alton and Others v Secretary of State for the Home Department

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Lord Justice Laws and Lady Justice Arden

Judgment May 7, 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 dismissing an application by the Secretary of State for the Home Department for permission to appeal against the decision of the Proscribed Organisations Appeals Commission on November 30, 2007, that she had acted perversely in refusing an application by Lord Alton of Liverpool and 34 other members of the two Houses of Parliament, pursuant to section 4(1) of the Terrorism Act 2000, for her to remove the People’s Mujahidin Organisation of Iran, previously known as Mujaheddin-e-Khalq, from the list of proscribed organisations in Schedule 2 to that Act, as amended by article 2 of the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order (SI 2001 No 1261).

Mr Jonathan Swift, Ms Gemma White and Mr Oliver Sanders for the Home Secretary; Mr Nigel Pleming, QC, Mr Mark Muller, QC and Mr Edward Grieves for the parliamentarians; Mr Andrew Nicol, QC and Mr Martin Chamberlain as special advocates.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the organisation’s present stated purpose was the replacement of the Iranian theocracy with a democratically elected secular government.

The parliamentarians accepted that it had engaged in military activity against the Iranian regime prior to June 2001, as the only means available 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 secretaries-general had renounced terrorism.

The question for the Home Secretary was whether she believed that the organisation was “concerned in terrorism” within the meaning of section 3(5)(d) of the 2000 Act.

The Home Secretary’s reasoning appeared to have been that the organisation 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.

Their Lordships agreed with the commission 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.

Support for those conclusions could be derived from section 11 of the 2000 Act which made it an offence to belong to a proscribed organisation but then provided that it should be a defence for a member to prove that he had not taken part in the activities of the organisation at any time while it was proscribed.

It was implicit in that provision that the essence of the criminal offence of belonging to a proscribed organisation was the taking part in activities that, directly or indirectly, lent support to terrorism.

It was also implicit that the legislation was aimed against organisations that were carrying on activities connected with terrorism.

As to the appropriate standard of review, the question of whether an organisation was concerned in terrorism was essentially a question of fact. Justification of significant interference with human rights was in issue.

Their Lordships agreed with the commission that the appropriate course was to conduct an intense and detailed scrutiny of both open and closed material in order to decide whether that amounted to reasonable grounds for the belief that the organisation was concerned in terrorism.

Applying that approach, the commission had concluded that the Home Secretary’s decision was perverse. There was no valid ground for contending that the commission had erred in law.

Solicitors: Treasury Solicitor; Bindmans LLP; Treasury Solicitor.

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