Sean O'Neill, Crime and Security Editor
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Anti-terrorism legislation was condemned as poorly thought-out by a senior High Court judge yesterday as he declared that the Treasury’s powers to freeze suspects’ bank accounts were unlawful.
Mr Justice Collins said that terrorist financial orders — introduced by Gordon Brown when he was Chancellor — were absurd,unfair and a breach of fundamental rights.
The judge, who has lengthy experience of dealing with terrorism cases, said: “It was, frankly, another example of an immediate reaction without it being thought through properly — which is rather the pattern with the anti-terrorism measures.”
The Times revealed this week that the judge was preparing to criticise the asset-freezing regime in the latest of a series of rulings that have exacerbated tensions between the judiciary and the Government.
There are now 59 people living in Britain on the Treasury sanctions list, including the radical clerics Abu Hamza al-Masri and Abu Qatada, who are both in jail. The Bank of England has frozen 274 accounts, containing £656,000.
Abu Qatada had £180,000 cash in his home when it was raided in 2001 and, despite the sanctions, Abu Hamza made £120,000 on a property transaction while in prison.
Ruling on an appeal brought by five terrorist suspects — referred to in court as A, K, M, Q and G — the judge said that the sanctions had had “the most drastic effect” on them and their families.
People on the terrorist list have to apply to the Treasury for a licence to spend money on groceries and anyone who provides them with “an economic resource” is liable to a criminal conviction and a jail sentence.
The judge said the situation was “an absurdity” and recommended that two measures — the Terrorism Order and the al-Qaeda and Taleban Order — should be quashed. They will, however, remain in place pending an appeal that the ministers said the Government would pursue urgently.
The measures were adopted to give effect in British law to two United Nations Security Council resolutions imposing sanctions on people alleged to be funding terrorism.
The judge was critical that they were introduced as Orders in Council rather than through an Act of Parliament and were therefore not subject to debate by MPs and peers. He also criticised the absence of a procedure for suspects who wanted to challenge their listing as terrorists.
The Government, he added, should consider introducing measures in the Counter-terrorism Bill to provide for a tribunal at which people on the Treasury’s list could challenge the financial sanctions. The judge told government lawyers: “You are going to have to legislate at some stage, otherwise the State will not be able to put before the court the incriminating or allegedly incriminating material.”
He said he had “real concerns” that the orders had introduced a criminal offence, of assisting a listed person, without consulting Parliament.
David Davis, the Shadow Home Secretary, said that the High Court had left Mr Brown’s asset-freezing regime “in tatters”. He added: “When you make laws in a hurry that are unfocused and arbitrary, the result is neither firm nor fair — just fragile.”
Jacqui Smith, the Home Secretary, said that she was “very disappointed” with the ruling.
Jane Kennedy, the Financial Secretary to the Treasury, said: “The Government continues to be fully committed to defending and maintaining our asset-freezing regime which makes an important contribution to our national security by helping to prevent funds being used for terrorist purposes and is central to our obligations under successive UN Security Council Resolutions to combat global terrorism.”
But Jules Carey, solicitor for G, said that the importance of the judgment could not be overstated. He said: “It is the sovereignty of Parliament that is at stake here, the foundation block of the British constitution. If Government can, without consulting Parliament, give itself powers to create criminal offences and take away fundamental rights then we are watching the sun set on democracy.”
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This Legislation sounds absurd, and it all came from the man who is now Prime Minister. Scary thought.
Nick Hartley, Brisane, Australia
Although a hotbed of controversy, challenging the orders provides a much-needed discussion of their worth. Our elected representatives have not agreed to them.
This is not simply a matter of state versus terrorist, but of the right of any citizen to appeal an arbitrary exercise of power.
Karn Purvis, Bishops Stortford, Hertfordshire
The laws of this land are perfectly adequate to prevent the likes of me from committing crime.
The Judiciary seem to infuriate many decent people more often than adequately punishing the criminal.
Our Government create a multitude of new laws - but aren't very good at it !
Heaven help us !
Steve, Cramlington, U.K.
Hurray for Justice Collins and for the judiciary of this country that continue to protect the rule of law against a government determined to destroy the constitutional fabric of this country!
Elected judges - Heaven forbid!!
Bridgit, Newcastle,
The only saving grace is that when we fall, the first up against the wall will be, Judges, politicians and the so called intellectuals, it was always thus!
wills, soton, uk
Another example of the elected Governments decisions being overturned by unelected judges, which in turn give freedom to people who only want to harm the fabric of society. It is time that these judges were elected and then lets see them continuously give way to terrorists.
Keith, Perigueux, France
Oh dear, Justice Collins is at it again. Having in no small way contributed to the shambles that is our asylum and immigration system with his rulings, he is now turning his Judicial activist eye to terrorist legislation, as such we should be worried , very worried!
Iain, Andover, England
Change the laws - so that terrorists & suspected terrorists can be deported. Neither are wanted "on board" - even better than freezing their assets - fence of a little bit of Antartica...........
Richard, Bucharest,
Freezing assets is simply a short term solution to a long term problem on preventing terrorist financing. Further, with the sources of finance availbale to terrorist i'm not surprised the government is finding it hard to legislate against this threat, whilst trying to keep the rule of law.
Neel Ummat, bristol, England
When the damn breaks you don't sit around and think about the best solution to stop the water. You stop it anyway you can, then build another damn. Same thing, just remember if a terrorist does get his money to blow up something or somebody in your country. That "intellectual judge" is the cause.
john d smithriver, van wert, usa
Its not just the the way in which judges deal with terrorists that causes concern. The latest judgement by Judge Peter Coulson at Birmingham Crown Court, in which he gave a lenient manslaughter sentence to two men who drowned a 16 year old, displays at the best incompetence, at the worst, cynicism
Anne Wotana Kaye, London, England
If one is dealing with organised crime it is possible to obtain court orders freezing assets prior to conviction. Surely it is possible to do likewise with those suspected of terrorist offences. The Govt should be doing a better job - but if judges want to make policy they should seek election!!!
Hugh, Berkhamsted,
R Bingham took the very words from my mouth ... 100% correct Sir .
Benzo , Nr Chelmsford,
How did we end up so stupid?
Tim, Liverpool, UK
This is not the judiciary falling short it is our incompetent government which, despite half of them being lawyers and additionally employing hundreds of other lawyers, has difficulties putting together a law which is also legal.
How many more illegal laws can they generate?
R Bingham, Lauzun, France
The country has adopted a softly softly policy for far too long and is reaping the consequences now. There are too many foreigners in Britain and now they are taking over the country. Get rid of them and their treason and adopt a zero tolerance policy. Whose human rights are really affected?
Lesley, Bangor, NI
If these men are guilty, prove it . I have no objections to their assets being frozen, or confiscated as the Law allows AFTER they have been found guilty in a Court of Law. This is an illegal Order, not a Law, as it has not been debated in the Commons or Lords.
Beryl, Windsor, England
This is why Islam will take over the U.K. where Germany failed.
Hitler would have had a field day with this.
It will be interesting how long the U.K. takes before they ask the United States to come and help bail them out again when they start fighting Islam in the streets of London.
Frank, San Diego, United States
Don Constable, you fail to notice that these laws were not made by an elected parliament nor by the judiciary. They were made by the Treasury, not scrutizied by Parliament - this is effectively the executive, whose constitutional role is to carry out the law, not make it.
Paul, Cambridge, UK
Isn't time we all asked who makes the law that runs this country - the elected parliament or unelected judges? It seems that the judiciary are taking an addicts delight in finding flaws in incompetant lawmaking to the detriment of the population that pays their wages - not a good long term PR.
Don Constable , Market Drayton, UK
Well, I'll bet no terrorists try to bomb the Courts at least. Not while they're providing such sterling service.
Mind, even if they did there's very little chance of harming a Judge or Magistrate. I've had two Child Access hearings, and neither time did a Judge or Magistrate bother to turn up...
Jon, Southampton,
When it comes to terrorism issues, the Judicary has alarmingly fallen short on more than one issue.
Terrorists cannot be deported, their assets cannot be frozen.
Some brainless Judge is making life very easy for those that would harm us and for ourselves open to attack.
Howard Leech, Gdansk, Poland
George, We have a quaint custom called due process and its sister presumption of innocence.
P Hodgson, Nottingham, England
All these things need, and the extra long eternal detention as well, is some kind of court hearing built into the process where the suspects can say why they shouldn't be subjected to the orders.
What is wrong with our government that they can't see this?
JonB, Manchester, UK
How about completely innocent Iraqis, who were accused of harbouring Weapons of Mass Destruction and therefore subjected to "Shock and Awe". Will they be able to claim against those responsible - possibly in the Hague?
Bill Peter, Kuala Lumpur, Malaysia
The Headline should be. Freezing assest of any one who the State feels could be a terrorist. IE any one that voices an opinion. Remember the Labour Conference. For all of those that believe the Strap LIne.
Mark, Newcastle, uk
What happenen to innocent until proven guilty? What happened to democracy? what happened to everyone being equal under the law? Get rid of this government!!!
Nick P., Camberley Surrey, UK
We can't deport terrorists, lock them up or remove their funds.
What exactly can we do which doesn't infringe on human rights ?
The government keeps banging on about 42 days without charge but can't actually do anything to people who actually are terrorists.
Sorting out the wrong problem - again.
George, London,