This
is the judgment of the Court.
Introduction
1.
On 29 March 2001 the Terrorism Act (Proscribed
Organisations) (Amendment) Order 2001 (‘the 2001 Order’) came into force. This
added an organisation then described as the Mujaheddin-e-Khalq, but known in
these proceedings as the People’s Mojahadeen Organisation of Iran (‘PMOI’), to
the list of proscribed organisations in Schedule 2 of the Terrorism Act 2000
(‘TA 2000’).
2.
Pursuant to section 4(1) TA 2000, PMOI made
applications to be removed from the list on 5 June 2001 and 13 March 2003.Â
Both applications were refused by the Secretary of State for the Home
Department (‘the applicant’). A third application was then made by the
respondents, who are thirty five members of the two Houses of Parliament, on 13
June 2006. Their application was also refused by the Secretary of State on 1
September 2006.
3.
The respondents appealed against this refusal to
the Proscribed Organisations Appeals Commission (‘POAC’). POAC allowed their
appeal on 30 November 2007, determining that PMOI was not an organisation which
‘is concerned in terrorism’ for the purposes of section 3 TA 2000.
4.
POAC refused an application for permission to
appeal and the Secretary of State renewed the application before us. We invited
Mr Jonathan Swift, who appeared for her, to support her application by fully
developing the grounds of appeal that he sought to advance, so that we could
deal simultaneously with the application and, if we granted the application,
with the appeal.
5.
This appeal relates to POAC’s review of the
decision taken by the Secretary of State. That decision was not taken by the
applicant herself, but by or on behalf of her male predecessor in office. We
shall for simplicity refer to the applicant and to her predecessors, including
the decision taker, indivisibly as ‘she’.
The statutory provisions
6.
The relevant sections of the TA 2000 provide as
follows:
“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.
3. Proscription
(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.Â
(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 Walesâ€
PMOI
7.
 PMOI is an Iranian political organisation
founded in 1965. It is a member of the National Council of Resistance of Iran
(‘NCRI’), which is not proscribed in the UK. Its initial purpose was to oppose
the government of the Shah of Iran. Its present stated purpose is the
replacement of the theocracy which succeeded that government with a
democratically elected secular government in Iran.
8.
Following the overthrow of the Shah in 1979 PMOI
came into conflict with the government led by the Ayatollah Khomeini. PMOI
members went into exile, initially in France and, from 1986, in Iraq, which was by then at war with Iran. There they were principally located in Camp
Ashraf, where they maintained an armed force, the National Liberation Army.Â
PMOI lent military support to their hosts during that war, and thereafter
continued to carry out and claim credit for numerous attacks against Iranian
targets.
9.
The respondents claim that in June 2001, at an
Extraordinary Congress in Iraq, PMOI decided to put an end to its military
activities. It has since pursued a campaign to legitimise its status as a
peaceful democratic movement and has attracted support in this aim from the
respondents. PMOI remained armed until the invasion of Iraq by coalition
forces in March 2003. At that date Camp Ashraf was surrounded and a large
arsenal of weapons was surrendered by agreement.
10.
PMOI has since May 2002 been on the European
Union list of terrorist organisations subject to an EU-wide assets freeze. It
has also been designated by the US government as a Foreign Terrorist Organisation.
11.
The Iranian government remains hostile to PMOI.Â
In August 2002 the NCRI publicised detailed allegations of Iran’s programme for
the acquisition of nuclear weapons.
Proscription
of PMOI
12.
In her covering letter to Parliament with the
draft 2001 Order the Home Secretary set out the criteria applied in her
decision to seek proscription of PMOI as an organisation she believed was
‘concerned in terrorism’. While acknowledging that PMOI did not pose a
specific threat to the UK, or to British nationals overseas, or have a presence
in the UK, she had based her decision on the nature and scale of the PMOI’s
activities and the need to support other members of the international community
in the global fight against terrorism.
13.
The first application to deproscribe PMOI was
made on 4 June 2001 and rejected by the applicant on 31 August 2001. The
decision was the subject of an application for judicial review. That
application was refused by Richards J on 17 April 2002 on the basis that the
appropriate venue for determining the issue was POAC. An appeal was then made
to POAC and was due to be heard in June 2003. On 13 March 2003 PMOI made a
second application for deproscription, which relied in addition on the
surrender of arms to the coalition forces in Iraq. Â This application was
refused on 11 June 2003. In the same month the appeal to POAC was withdrawn.Â
The respondents assert that the withdrawal was a protest following the bombing
of Camp Ashraf by Coalition forces in the invasion of Iraq.
The application for deproscription
14.
The application with which this appeal is
concerned was made by the respondents on 13 June 2006. The respondents claimed
to be persons ‘affected by’ PMOI’s proscription for the purposes of section
4(2)(b) of TA 2000 in that they were unable to support the aims of PMOI without
committing criminal offences under sections 12 and 15 of the Act. Their
application stated at the outset:
“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.â€
15.
The respondents 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. Successive Secretary Generals
had renounced terrorism in public addresses. It had played no part in the
second Gulf War and had co-operated with the Coalition forces. Their
contention that the PMOI was not an organisation concerned in terrorism was
supported by a substantial body of legal opinion. The PMOI’s democratic
credentials had attracted the support of Parliamentarians the world over.
16.
The application did not merely rely on the
cessation by PMOI of military activity since the middle of 2001. It averred
that PMOI had deliberately decided to end all military activities and had made
this fact plain:
“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… â€
17.
The application was refused in a letter (‘the
Decision Letter’) written on behalf of the Secretary of State by the Minister
of State, Mr Tony McNulty, dated 1 September 2006. That letter was in precisely
the same terms as a draft that had been submitted to the Minister by officials
on 26 August 2006 under cover of a submission dated 25 August 2006, which
advised the Minister to refuse the application. The submission made, among
others, the following points:
“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.â€
18.
The reference to JTAC was to the Joint Terrorism
Analysis Centre.
19.
We can summarise the reasoning in the decision
letter as follows. Up to “as recently as June 2001†the PMOI had, by its own admission, been responsible for extensive acts of terrorism. In those
circumstances a clear and unequivocal renunciation of terrorism by PMOI was
necessary to dispel the belief that PMOI remained concerned in terrorism. No
such renunciation had been made. In these circumstances the Minister remained
of the belief that the PMOI was concerned in terrorism. The following passages
illustrate this reasoning.
“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.Â
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.â€
POAC’S decision
20.
POAC held both open and closed hearings in
accordance with the Proscribed Organisations Appeal Commission (Procedure)
Rules 2007 (‘the Rules’). In the latter hearing the interests of the
respondents were represented by special advocates. POAC’s open and closed
judgments were delivered on 30 November 2007. The Open Determination was 144
pages in length. The overall conclusions of POAC were accurately summarised by
Mr Swift in his skeleton argument as follows: first, that in concluding that
the PMOI was an organisation concerned in terrorism, the Secretary of State had
misconstrued the provisions of section 3(5) TA 2000 and failed to direct
himself properly as to those provisions of the TA 2000; secondly that in
concluding that the PMOI was an organisation concerned in terrorism, the
Secretary of State had failed to have regard to relevant considerations; and
thirdly, that the conclusion reached by the Secretary of State that the PMOI
was an organisation concerned in terrorism was perverse.
21.
POAC’s Open Determination was based exclusively
on the open material. We consider that it could properly have indicated in
general terms the extent to which, if at all, its conclusions were reinforced
by material that it received in closed session. This would seem permitted, if
not required, by Rule 28 (3) of the Proscribed Organisation Appeal Commission
(Procedure) Rules 2007 which provides:
“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. â€
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.
The issues
22.
The applicant’s decision whether to deproscribe
PMOI involved two stages. First she had to decide whether she believed that
PMOI was ‘concerned in terrorism’. If so, she had to decide as a matter of
discretion whether the proscription of PMOI should be continued. She decided
both questions affirmatively. There is now no issue that, if her decision in
relation to the first question was correct, the answer that she gave to the
second question fell properly within her discretion. The issue is whether the
affirmative answer that she gave to the first question can be justified.
23.
The grounds of appeal that the applicant seeks
to advance are as follows:
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.
24.
 The critical
ground of appeal is the first. We can summarise the applicant’s case as
follows:
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.â€
ix)
POAC then improperly substituted its own
conclusions for those of the applicant and, perversely concluded that her
decision was perverse.
25.
   We can summarise the respondents’ case as
follows.
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’
26.
It is common ground that the application for
deproscription required the applicant to decide whether she remained of the
belief that PMOI was concerned in terrorism within the meaning of section 3(5)
of the TA 2000. It is also common ground that, at the time of the applicant’s
decision, PMOI did not fall within section 3(5)(a)(b) or (c). Thus the question
for the applicant was whether she believed that PMOI was “otherwise concerned
in terrorism†within the meaning of section 3(5)(d). That question first
required the applicant to decide upon the meaning of ‘otherwise concerned in
terrorism’. We propose to consider the meaning that the applicant contends that
she accorded, or should have accorded, to that phrase, then to consider the
meaning given to it by POAC and finally to give our view of the correct
meaning.
The applicant’s definition
27.
In paragraph 7 of her decision letter the
applicant stated “I have decided that the PMOI remains an organisation
concerned in terrorism for the purposes of the 2000 Act.†Nowhere did she state
what she meant by “concerned in terrorismâ€. Her starting point was that, up to
June 2001, PMOI had been committing extensive acts of terrorism (paragraph 9).
That meant that up to June 2001 PMOI was ‘concerned in terrorism’ by virtue of
section 3(5)(a). Next she stated that she ‘accepted’ that between the summer of
2001 and the spring of 2003 “the number of attacks claimed by [PMOI] declined
substantially†(paragraph 13). Thereafter she accepted that there had been what
she described as a “temporary cessation of terrorist acts†(paragraph 22).
Implicit in this finding was an acceptance that PMOI ceased to fall within the
definition in section 3(5)(a). The question then arose of whether PMOI remained
“otherwise concerned in terrorism†under section 3(5)(d). The applicant’s
reasoning appears to have been that PMOI remained ‘concerned in terrorism’
because she had “reason to fear that terrorist activity that has been suspended
for pragmatic reasons might be resumed in the future†(paragraph 23).
28.
At one stage in his argument Mr Swift advanced
an argument that appeared to accord with this reasoning. He suggested that if
PMOI posed a ‘threat’ of terrorist action this would constitute being
‘concerned in terrorism’ by virtue of the reference to ‘threat’ in the
definition of terrorism in section 1(1) of TA 2000. On reflection he accepted,
however, that to constitute terrorism such a threat had to be an overt threat
communicated by the organisation. What then, were the qualities of PMOI that
gave rise to the belief that it fell within the definition of ‘otherwise
concerned in terrorism’?
29.
Mr Swift’s very lengthy skeleton argument does
not provide an answer to this question. The nearest that it comes to doing so
is in the following passage:
“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.â€
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
evaluativeâ€, possibly calling for, inter alia, an evaluation of the
organisation’s “strategic and ideological objectives†(paragraph 53).
30.
In oral argument Mr Swift suggested that PMOI
was ‘otherwise concerned in terrorism’ if the organisation was maintained with
the same structure and membership, with the same objective of bringing down the
current Iranian theocracy and with the intention of resorting to terrorism if
and when circumstances permitted this. In so far as ‘being concerned in’
connoted some activity or action, the act of maintaining the organisation
sufficed to satisfy this requirement. Mr Swift submitted that in the absence of
a clear renunciation of terrorism the applicant was entitled to believe that
PMOI satisfied all of these criteria.
POAC’s definition, which the respondents support
31.
POAC set out its conclusions as to the meaning
of ‘concerned in terrorism’ in the following paragraphs of its Open
Determination:
“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.Â
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.Â
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).)â€
32.
The respondents support POAC’s definition of
‘otherwise concerned in terrorism’.
Our conclusions
33.
The difficulty of defining ‘otherwise concerned
in terrorism’ can be illustrated by reference to the provisions of section 3(8)
of the Northern Ireland (Sentences) Act 1998 which required the Secretary of
State to specify an organisation
“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.â€
34.
That legislation, in contrast to that with which
we are concerned, draws a distinction between being concerned in terrorism and
being concerned in promoting or encouraging terrorism. It also makes it clear
that an organisation can be so concerned, notwithstanding that it is inactive
in consequence of a ceasefire.
35.
While we agree with the broad thrust of the
conclusions reached by POAC, which we have set out in paragraph 31 above, we
consider that the manner in which these are expressed is a little confusing.
The last sentence of POAC’s paragraph 126 cannot readily be reconciled with the
first sentence of their paragraph 127. We think that the former would be better
deleted.
36.
The reason why the organisation described by
POAC in the first sentence of paragraph 127 falls within section 3(5)(d) of TA
2000, rather than section 3(5)(a) is because it is currently inactive. The
reason why it is nonetheless ‘otherwise concerned in terrorism’ is because it
retains its military capacity for the purpose of carrying out terrorist
activities. The nexus between the organisation and the commission of acts of
terrorism is close and obvious.
37.
We agree with POAC that an organisation that has
no capacity to carry on terrorist activities and is taking no steps to acquire
such capacity or otherwise to promote or encourage terrorist activities cannot
be said to be ‘concerned in terrorism’ simply because its leaders have the
contingent intention to resort to terrorism in the future. The nexus between
such an organisation and the commission of terrorist activities is too remote
to fall within the description ‘concerned in terrorism’.
38.
An organisation that has temporarily ceased from
terrorist activities for tactical reasons is to be contrasted with an
organisation that has decided to attempt to achieve its aims by other than
violent means. The latter cannot be said to be ‘concerned in terrorism’, even
if the possibility exists that it might decide to revert to terrorism in the
future.
39.
Support for these conclusions can be derived
from section 11 of the Act which makes it an offence to belong to a proscribed
organisation but then provides that it shall be a defence for a member to prove
“that he has not taken part in the activities of the organisation at any time
while it was proscribedâ€. It seems to us implicit in this provision that the
essence of the criminal offence of belonging to a proscribed organisation is
the taking part in activities that, directly or indirectly, lend support to
terrorism. It is also implicit that the legislation is aimed against
organisations that are carrying on activities connected with terrorism. Â
The approach to review
40.
POAC devoted 26 pages of its Determination to
the question of the intensity of the review that it was required to conduct of
the applicant’s decision. These pages included lengthy citation from Secretary
of State v Home Department [2003] 1AC 153; R v Shayler [2003] 1 AC 247; A and Others v Secretary of State for the Home Department (N0 2) [2005] 1 WLR 414
and Secretary of State for Home Department v MB [2007] QB 415. They also
referred to The Queen (on the application of the Kurdistan Workers Party and
Others) v Secretary of State for the Home Department [2002] EWHC 644
(Admin). This was an application by PMOI among others for permission to
challenge its proscription by judicial review. In refusing the application
Richards J held that POAC was the appropriate tribunal to consider the claims,
observing at paragraph 79 that they depended heavily on a scrutiny of all the
evidence, including any sensitive intelligence information, concerning the aims
and activities of the organisations concerned and a comparison between them and
other organisations proscribed and not proscribed. He also observed in the
previous paragraph that POAC had been designated as the appropriate tribunal
for the purposes of section 7 of the Human Rights Act in respect of proceedings
against the Secretary of State in respect of a refusal to deproscribe.
41.
In the light of these authorities POAC concluded
that it accorded with the will of Parliament that POAC should subject both
stages of the Secretary of State’s decision to intense scrutiny. POAC
concluded:
“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.â€
42.
Mr Swift sought to persuade us that this
conclusion was erroneous. He sought to equate the applicant’s consideration of
whether PMOI was concerned in terrorism with consideration of whether an
individual is likely to be a threat to national security (Rehman) or
whether an emergency exists threatening the life of the nation (A v
Secretary of State for the Home Department). All three questions, he
submitted, involved evaluation in a field where the Secretary of State and her
advisers had special expertise to which the courts should defer.
43.
We do not consider that the comparison is apt.
The question of whether an organisation is concerned in terrorism is
essentially a question of fact. Justification of significant interference with
human rights is in issue. We agree with POAC that the appropriate course was to
conduct an intense and detailed scrutiny of both open and closed material in
order to decide whether this amounted to reasonable grounds for the belief that
PMOI was concerned in terrorism.
44.
On the facts of this case the question of the
approach to POAC’s review, debated at such length, proved academic, for POAC
held that even the application of the conventional Wednesbury test led
to the conclusion that the applicant’s decision was flawed.Â
45.
Mr Swift submitted that POAC did not merely
review the decision of the applicant according to the principles applicable on
an application for judicial review but substituted its own decision for that of
the applicant. We do not accept this submission. POAC reached the conclusion
that the applicant had asked herself the wrong question when reaching her
decision after failing to take into account matters that she should have
considered. POAC set out the matters that the applicant should have taken into
account. This involved one finding of fact that was in conflict with a finding
implicitly made by the applicant, but in rejecting the applicant’s finding POAC
held that no reasonable person could have made it. Finally POAC asked the
question whether, applying what it considered to be the right test, any
reasonable person could have concluded that PMOI was concerned in terrorism and
concluded that any reasonable person would have reached the opposite
conclusion. We do not consider that POAC’s approach can be faulted. Â
46.
 We have concluded that POAC’s interpretation of
section 3(5) of the TA 2000 was essentially correct and that POAC approached
its task correctly in subjecting the applicant’s decision to intense scrutiny,
thereby carrying out a review according to the principles of judicial review
that apply where a decision affects fundamental human rights. It remains to
consider whether, applying this approach, POAC correctly concluded that the
applicant’s decision was perverse or whether, as Mr Swift submitted, POAC’s own
decision was perverse.
The material facts
47.
As we have shown, the question that the
applicant appears to have asked was whether there was reasonable cause to
believe that PMOI might resume terrorist activities in the future. POAC ruled,
correctly in our view, that on the facts of this case the applicant should have
asked the question whether there was reasonable cause to believe that PMOI was
maintaining a military capability or taking active steps towards acquiring one
with a view to a resumption of terrorist activities. Whichever question was
correct, however, it seems to us that the material that needed to be considered
to answer it was essentially the same.
48.
Mr Swift placed reliance on the following
conclusions of POAC:
“(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 “voluntarilyâ€
to have surrendered its military equipment in 2003 was not a claim that the
Secretary of State was required to accept; and
(iv) Â Â Â Â Â Â Â PMOI was an organisation that
often made public statements that were self-serving, and that the Secretary of
State was entitled to disbelieve.â€
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 Commissionâ€. 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.â€
49.
Mr Pleming QC for the respondents submitted that
the applicant mis-characterised the respondents’ case. It was not founded on an
alleged renunciation of violence but on the fact that, at the time of the
application, PMOI was not an organisation concerned in terrorism, as defined by
the TA 2000. He further submitted that Mr Swift’s summary of the facts found by
POAC was selective. He referred us to the following specific findings by POAC,
emphasising where it appeared, the use of the word ‘only’.
“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.â€
50.
On the respondents’ case it was immaterial what
motivated PMOI in ceasing from all activity that was in any way related to
terrorism from 2002 onwards. On the applicant’s case it was critically
important to form a view as to whether PMOI had an intention to revert to
terrorist activities if and when in the future circumstances permitted. So far
as the decision letter was concerned the most recent terrorist activity
referred to was that implicit in the statement “during the period between
Summer 2001 and Spring 2003 the number of attacks claimed by the [PMOI]
declined substantiallyâ€. As POAC pointed out (paragraph 345) the inference that
there were a number of attacks between summer 2001 and spring 2003 was not
supported by any evidence. There was only one attack in respect of which PMOI
had momentarily claimed responsibility before issuing a correction to withdraw
that claim.
51.
The decision letter referred to no activity or
statement after 2003 that supported the conclusion that PMOI retained an
intention to involve itself in terrorist activities. One such matter was
raised, however, by a Mr Benjamin Fender, of the Foreign & Commonwealth
Office, who “contributed to the process that informed the Home Secretary’s
consideration of the Appellants’ application for deproscriptionâ€. He identified
Mr and Mrs Rajavi as the main authorities and spokesmen of PMOI, commented that
their views on the use of violence against the Iranian regime remained
ambiguous and stated, “by way of example†that Maryam Rajavi declined to rule
out armed intervention when she was interviewed by the Los Angeles Times on 1
February 2006â€. Mr Swift relied upon this evidence and criticised POAC for
substituting its own assessment of it.
52.
What POAC did was to subject Mr Fender’s
assertion to some intense and productive scrutiny. POAC concluded (i) that
this piece of evidence was selective, in that there was evidence of public
statements by Mrs Rajavi that could be “read sympathetically as a rejection of
violenceâ€, (ii) that the LA Times report was unreliable, (iii) that the
selection of that one report from a large number of reports of speeches by Mrs Rajavi
“suggests that what Mr Fender may have done since the date of the Secretary of
State’s decision is to search for evidence to support a particular case rather
than to put forward the evidence relevant to the issue that was relied upon in
September 2006â€, (iv) that the report did not provide material that could have
assisted the Secretary of State in reaching a reasonable belief as to the
current policy of PMOI to future violent action and (v) that the report does
not appear in fact to have formed any part of the Secretary of State’s decision
making process. In these circumstances we do not consider that the report adds
anything to the applicant’s case.
53.
The reality is that neither in the open material
nor in the closed material was there any reliable evidence that supported a
conclusion that PMOI retained an intention to resort to terrorist activities in
the future.
54.
We come back to the statement in the decision
letter that, so it seems to us, encapsulated the reasoning of the applicant:
“Mere cessation of terrorist acts do not amount
to a renunciation of terrorism. Without a clear and publicly available
renunciation of terrorism by PMOI, IÂ am entitled to fear that terrorist
activity that has been suspended for pragmatic reasons might be resumed in the future.â€
(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 terrorismâ€. 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
agoâ€.(paragraph 26)
55.
POAC commented that such an approach “turns the
statutory test on its headâ€. We agree. POAC’s conclusions appear in the
following paragraphs:
“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.â€
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
56.
We consider that the only arguable ground of
appeal relates to the construction of section 3(5)(d) of the TA 2000. We have
considered what the consequence would have been had POAC accepted the
submission that an organisation that was actively concerned in terrorist
activities can be “otherwise concerned in terrorism†if it has no military
capability and has been involved in no activities connected with terrorist acts
or with the preparation for such acts for as long as five years provided only
that the organisation is inactive for pragmatic reasons and retains the
intention to resort to terrorist activities when circumstances permit. POAC
expressed doubt as to whether “the material before us could lead to a
conclusion that the PMOI did retain a will of that natureâ€. We understand that
the ‘material’ referred to was the open material.
57.
Closed material was also available to the
applicant. We have considered that material. It has reinforced our conclusion
that the applicant could not reasonably have formed the view when the decision
letter was written in 2006 that PMOI intended in future to revert to terrorism.
58.
In these circumstances we consider that the
appeal that the applicant wished to bring had no reasonable prospect of success
and that the appropriate course is to dismiss her application.Â
