Terrorist asset-freezing: an intrusion too far – Dr Cian Murphy

21 December 2011 by

Freezing

One could be forgiven, amidst the furore over the European Court of Human Rights’ Al-Khawaja judgment last Thursday, for missing the first report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorist Asset-Freezing etc Act 2010. The Report runs to over 100 pages and is the most comprehensive account of UK terrorist asset freezing in print.

It is the third report of the current Independent Reviewer, David Anderson Q.C., since he took up the post in February. Asset freezing is something of a speciality of his, as he has appeared in litigation in both EU and UK courts on the matter. It is therefore unsurprising that the Report exhibits the same attention to detail that made the Anderson’s previous two efforts essential reading.

Although press coverage of the Report has concentrated on some of the catchier phrases (‘financial house arrest’) there is much in the Report that merits closer consideration. It teases out the listing and delisting processes to consider the operation of the law with remarkable precision. Indeed, the Report’s greatest success is lifting the shroud of secrecy on the system’s operation. This is achieved in two ways.

First, the Report clearly sets out the legal regimes involved (for there are several) and indicates how they interact. Second, it puts a human face on those targeted by making available the details of individual cases. Thus, we learn that most of those targeted are already incarcerated or are overseas – with only five individuals at liberty but subject to UK asset-freezing (one of whom has now been delisted). Many of those targeted have few, if any, assets in this jurisdiction. The system is a sledgehammer to crack a nut – and there is cause to doubt both the necessity and the effectiveness of that approach.

Although many of those targeted are either incarcerated or overseas there remains a significant societal impact. The fact that all those targeted are male conjures a misleading image of footsoldiers on the wrong side of a ‘war on terror’. Several of those targeted have never been convicted of any crime. Many have families whose daily lives are seriously disrupted by the sanctions. These effects have been ameliorated by a successful challenge to HM Treasury’s interpretation of the law and subsequent amendments to the legal framework.

Anderson’s Report contains details on the cruel intrusions into the daily lives of often-vulnerable families. A seemingly unrelated but nonetheless notable feature of the Report is its examination of the system’s cost to business. It is not just human rights lawyers that are dismayed at its operation as it also causes severe compliance headaches for financial institutions. The onerous regulatory burden placed on such institutions may lead them to simply decline custom from designated persons – even after their designation has ended. The impact on business thus compounds the problems for targeted individuals and their families.

The Report affirms Anderson’s emerging philosophy on counter-terrorism reform: that the courts and Parliament complement rather than challenge each other in holding the executive to account. This has been the case in recent years with court judgments prompting legislative reform and with the House of Lords in particular amending draft legislation to improve rule of law compliance. Anderson does not, in this Report, recommend amendments to the asset freezing legislation.

Nonetheless the reform process continues. The European Court of Justice today reaffirmed its strong stance on the rule of law in EU asset freezing. Next year will see judgments from both the European Court of Human Rights and the European Court of Justice on UN asset freezing. If the courts continue their defence of the rule of law there may be further legislation in response.

Overall, Anderson’s Report paints a picture of a system that is highly intrusive but not extensively used – an ‘ancillary’ part of UK counter-terrorism. However, it consumes an inordinate amount of time for those involved in the administration of justice, in Government, in the courts, the academy and the legal profession. An optimistic view is that recent reforms are steps in the right direction. The pessimistic outlook is that the tools of oppression are merely being refined.

What remains unclear is whether the system in general or any individual designations do anything at all to make us safer. That question should be at the heart of the debate on the system’s future. The Independent Reviewer’s Report at least ensures that the debate is that much more enlightened than it was before.

Dr Cian Murphy is Lecturer in Law at King’s College London. This post first appeared on the Human Rights in Ireland Blog and is reproduced with permission and thanks.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;


  1. Asset Freezing orders and Restraint Orders should not be issued before conviction. The distress and manifest injustice this causes the target and their families is inhuman. With Restraint Orders targets are also denied the right to pay for legal advise or assistance and pre charge Legal Aid is not available.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: