New Judgment: Youssef v Secretary of State for Foreign and Commonwealth Affairs  UKSC 3
27 Wednesday Jan 2016
On appeal from:  EWCA Civ 1302
The Supreme Court unanimously dismissed the case involving whether the Foreign Secretary was entitled to allow the appellant to be added to the United Nations’ list of people subject to asset freezing.
The UK had originally placed a hold through the Sanctions Committee on the appellant’s designation for imposed sanctions. On 14 September 2005 the respondent removed the UK’s hold and the appellant subsequently became subject to the asset freeze. The appellant challenged the decision from the 14 September 2005 but his judicial review was dismissed by the Divisional Court and the Court of Appeal. He was subsequently granted permission to appeal to the Supreme Court.
In delivering the lead judgment Lord Carnwath provisionally stated that the decision in 2005 was the exercise of prerogative powers for the conduct of foreign relations. The court therefore had to proceed with caution.
In relation to the appellant’s first claim, Carnwath reasoned that the respondent’s decision had to be judged by reference to his reasons not those of the entire Sanctions Committee. He also clarified that although there is no doubt as to the importance of the rules against torture and the use of torture-tainted evidence, these rules do not imply a duty on states to inquire into the possible reliance on torture-tainted evidence by other states, acting alone or as part of an international organisation.
On the point of absence of power, Carnwath stated that there was statutory authority provided by the EU Regulation 81, which was given effect by the European Communities Act 1971, to satisfy the principle in Entick v Carrington that interference by the state with individual property rights cannot be justified by the exercise of prerogative powers, unsupported by specific statutory authority.
In regards to the appellant’s claim that the standard of proof of “reasonable grounds of suspicion” is too low, Carnwath explained that the position of a decision-maker trying to assess risk in advance is very different from that of a decision-maker trying to determine whether someone has actually done something wrong. Designation has a “preventative” purpose.
Finally Carnwath turned to the claim challenging the standard of review. He stated that the UN Security Council has entrusted member states, as members of the Sanction Committee, with determining whether the designation criteria are met. It would be inconsistent with that regime for a national court to substitute its own assessment.
To watching the hearing please visit: Supreme Court website