First Supreme Court ruling favours open justice

The Supreme Court today issued its first-ever ruling on an issue of law by agreeing that the media should be able to name one of four men appealing against orders freezing their assets because they are suspected of funding terrorism.

The principle of open justice required that Mohammed Al-Ghabra, whom the lower courts had protected by anonymity orders, should be identified, the court said.

It will decide on Thursday whether other men involved in the same hearing , who at present can be identified only as A, K and M, should also be identified.

All four men have had their assets frozen under orders which were introduced by Gordon Brown when he was Chancellor.

Geoffrey Robertson QC, representing a group of media organisations, told Lord Phillips, President of the Court, and six Justices that “your first term docket reads like alphabet soup” because of the number of appellants who were referred to only by letters of the alphabet because lower courts had granted them “pseudonym orders”.

Robertson said the Court of Appeal made the anonymity order in Mr Al-Ghabra’s case without giving notice to the press, without hearing evidence, and without giving reasons, in breach of the open justice principle.

He said everyone who commenced a legal action should expect to have his or her name published.

The four appellants in this case had “outed” themselves by issuing press statements from behind their “cloaks of anonymity” condemning the government and complaining about the oppressive effects of orders freezing their assets because they were suspected terrorist financiers.

Lord Phillips – who was sitting with Lord Hope, Lord Rodger, Lord Walker, Baroness Hale, Lord Brown and Lord Mance – ruled that Mr Al-Ghabra, who had previously been known only as G, should be named.

The other appellants would be allowed to put in evidence as to why they should be allowed to remain anonymous before their position was decided on Thursday.

The court had received witness statements from Professor David Leigh, assistant editor of the Guardian, Shaun O’Neill, crime and security editor at The Times, Edward Lucas, deputy editor of The Economist).

They had explained that press coverage would be more detailed and more understandable for readers who were not lawyers if newspapers could report the human interest dimension in the case.

It would be in the interest of educating the public about cases in the new court if the effects of anti-terrorism orders on suspects could be reported with their names and details of the effects of the order upon them.

Lord Philips said the question of whether litigants should be allowed anonymity raised “an important constitutional issue”.

Al-Ghabra has complained that the order freezing his assets was invalid and oppressive: his solicitor has said that if it was upheld then “the sun will have set on British democracy”.

It was widely reported that Mr Al-Ghabra was referred to in evidence in the airline bomb plot, as a person with whom “the plotters had been in touch”.

Solicitor Mark Stephens, who represented the media organisations which applied for the appellants to be identified, said after the hearing: “Mr Al-Ghabra has been identified as he appears almost daily in newspapers and has been on the Bank of England website for many years.”

The media groups which applied for the men to be identified were Guardian News and Media, Associated Press, Times Newspapers, Bloomberg News, Index on Censorship, Dow Jones and Co Inc, The Economist, Article 19, and the Media Legal Defence Initiative.

The four appellants are asking the Supreme Court to decide on the powers of Government ministers to create laws without a vote in Parliament.

The assets of all four have been frozen after they were placed on the Treasury sanctions list because they are suspected of supplying funds to terrorists.

Mr Justice Collins, sitting in the High Court, ruled that the Treasury’s powers were “unfair” and a breach of fundamental rights, but his decision was overturned by the Court of Appeal.

More than 50 people living in Britain are believed to be on the Treasury sanctions list. They have to apply to the Treasury for permission to spend money on groceries, and anyone who provides them with “an economic resource” is liable to criminal proceedings.

Tim Owen QC, for three of the men, said the case involved “fundamental constitutional issues” about the power of the Government executive to make laws without parliamentary debate or scrutiny, and argued that a proper balance had to be struck between national security concerns about terrorism and fundamental human rights and access to the courts.

The measures used by the Treasury were adopted to give effect in British law to two United National Security Council resolutions imposing sanctions on people alleged to be funding terrorism.

Owen said the issue of whether the Government was lawfully entitled to impose such restrictions depended on an analysis of the United Nations Act and powers allowing the Government to introduce such measures through Orders in Council.

This was the first time the courts had had the chance to look at these questions, he said.

The power to introduce such measures “was not intended to be an enormous, unlimited delegation of the legislative power by Parliament”, he said, adding: “Parliament did not deliver a blank cheque to the executive.”

The Government had used the powers to impose “a draconian, intrusive regime which destroys the individual’s power to live any sort of normal life without any conviction in a court”.

“It is an abuse of executive power,” he said.

The Treasury will argue during the four-day hearing that it is committed to preventing funds being used for terrorist purposes and that this is central to the UK’s obligations under successive UN Security Council resolutions to combat global terrorism.

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