In its inaugural case, the newly established Supreme Court of the United Kingdom heard arguments in a challenge to the nation's counter-terrorist financing policies. The case, A v. Her Majesty's Treasury will provide an opportunity for the Court to consider the narrow question of asset seizures in terrorism investigations as well as the broader issue of controlling Executive branch actions towards terrorist suspects. As Lord Phillips, the head of the new court, explained in discussing the importance of the case:
"It's one of a number of cases which we have had to deal with where there may be a tension of human rights on the one hand and dealing with the challenge of terrorism on the other."
The consolidated appeals in the case were brought by six unnamed individuals who have been designated by the Treasury under the Terrorism Order of 2006, the equivalent of U.S. Executive Order 13224. Similar to American terrorist-financing laws barring financial support for terrorist groups, once designated, a person's assets may be frozen indefinitely.
The appellants in question were designated because of their alleged connection to Al Qaeda and the attackers behind the London bombings. Following a brief administrative hearing, the total assets of each of the men were frozen by the Treasury. They complained that these actions deprived them of their property without notice or an opportunity for a hearing.
Having had his assets frozen, the named appellant, who has since been identified as Mohammed al-Ghabra, challenged the legality of the order. The trial court dismissed the order on the grounds that the order was too vague and there were insufficient procedural safeguards prior to designation. Interestingly enough, these are the same types of grounds upon which U.S. efforts at counter-terrorist financing prosecutions have been challenged and generally upheld.
Upon review, the UK Court of Appeals reversed in a 2-1 decision, rejecting each of the lower court's findings.
Upholding the ability of the Crown to act absent Parliament, the Court of Appeals explained, that the Treasury was simply applying U.N. Security Council policies regarding the suppression of terrorist financing. In particular, the Court relied upon Security Council Resolution 1373, which requires member states to:
"freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts…"
Stressing the preventative nature of the CTF regime introduced by the Security Council and the need to prevent acts of terrorism, the court ruled that the Treasury acted appropriately in freezing the assets based on a "reasonable suspicion" that the appellants were engaged in financial and logistical support for Al Qaeda.
The Court of Appeals also rejected the lower court's finding that the use of secret evidence at the asset freeze hearing was improper. In the eyes of the court, rather than completely quash the Terrorist Order as the lower court had done, the proper approach would have been to simply provide effective procedural protections.
Having had each of their arguments struck down by the Court of Appeals, the appellants have asked the Supreme Court of the United Kingdom to reverse the decision and reinstate the trial court decision quashing the Terrorism Order. This is a newly established court, and there is little way to know which direction they will rule. This case is reminiscent of the daily battles that federal prosecutors must fight ensuring that those who provide financial assistance to terrorist organizations are punished. It is certainly interesting to see how other nations have chosen to respond to the spread of terrorist financing. Of even greater importance, however, will be whether this newly formed court will recognize the dangers of these crimes and allow the Treasury to combat it appropriately.