“1. Terrorism: interpretation (1) In this Act “terrorism” means the use or threat of action where - - (a) The action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it - - (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. 3. Proscription (1) For the purposes of this Act an organisation is proscribed if- (a) it is listed in Shedule 2, or (b) it operates under the same name as an organisation listed in that Schedule. (2) Subsection (1) (b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule. (3) The Secretary of State may by order- (a) add an organisation to Schedule 2; (b) remove an organisation from that Schedule; (c) amend that Schedule in some other way. (4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism. (5) For the purposes of subsection (4) an organisation is concerned in terrorism if it – (a) commits or participates in acts of terrorism, (b) prepares for terrorism, (c) promotes or encourages terrorism, or (d) is otherwise concerned in terrorism. 4. Deproscription: application. (1) An application may be made to the Secretary of State for an order under section 3(3) or (8)- (a) removing an organisation from Schedule 2, or (b) providing a name to cease to be treated as a name for an organisation listed in that Schedule. (2) An application may be made by- (a) the organisation, or (b) any person affected by the organisation’s proscription or by the treatment of the name as a name for the organisation. (3) The Secretary of State shall make regulations prescribing the procedure for applications under this section. (4) The regulations shall, in particular – (a) require the Secretary of State to determine an application within a specified period of time, and (b) require an application to state the grounds on which it is made. 5. Deproscription: appeal. (1) There shall be a commission, to be known as the Proscribed Organisations Appeal Commission. (2) Where an application under section 4 has been refused, the applicant may appeal to the Commission. (3) The Commission shall allow an appeal against a refusal to deproscribe an organisation or to provide for a name to cease to be treated as a name for an organisation if it considers that the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review. (4) Where the Commission allows an appeal under this section, it may make an order under this subsection. (5) Where an order is made under subsection (4) in respect of an appeal against a refusal to deproscribe an organisation, the Secretary of State shall as soon as is reasonably practicable- (a) lay before Parliament, in accordance with section 123(4) the draft of an order under section 3(3)(b) removing the organisation from the list in Schedule 2, or (b) make an order removing the organisation from the list in Schedule 2 in pursuance of section 123(5). 6. Further appeal A party to an appeal under section 5 which the Proscribed Organisations Appeal Commission has determined may bring a further appeal on a question of law to (a) The Court of Appeal, if the first appeal was heard in England and Wales” (a) The Court of Appeal, if the first appeal was heard in England and Wales”
“Although other arguments will be developed in this document, the Application is based principally on the fact that, whatever the position on29 March 2001 when the PMOI was proscribed, following substantial and significant changes in the circumstances of the PMOI since the organisation’s proscription, it cannot be regarded as an organisation which is concerned in terrorism within the meaning of section 3(5) of the Act. These changes result partly in unilateral decisions of the PMOI and are partly the consequence of international developments.”
“14. There does not appear to be any documentary confirmation of the formal decision to renounce violence referred to in June 2001 (or the subsequent decisions later in 2001 and in 2003). JTAC are also unaware of this assertion. The absence of any formal statement confirming the abandonment of terrorist activity could well be regarded as significant. … 15. Essentially the same point applies to the claim that the PMOI ‘internal branch [has been] definitively dissolved’ (i.e. its organisation within Iran). There does not appear to have been any formal statement to this effect. Clearly, both on this point and the one above, you should not rely simply on the absence of any formal announcement (or simply the fact that no document to such effect has been included with the application). However, in the absence of clear information from other sources the absence of any formal statements by the PMOI would appear to be a matter of some importance. In fact, one of the witness statements produced by the PMOI in 2002 claimed that the PMOI retained an armed wing in Iran.”
“Subject to Rule 29, the Commission must serve on the parties and any special advocate a written determination containing its decision and, if and to the extent that it is possible to do so without disclosing information contrary to the public interest, the reasons for it. ”
“In principle, section 3(5)(d) TA is sufficiently broad as to encompass a situation such as that under consideration by the Commission in the present case – i.e. of an organisation that has previously undertaken acts falling within sections 3(5)(a)-(c) TA, which has then not undertaken such acts for a period of time, but in relation to which the reason for such recent inactivity, and whether it is temporary, or tactical or permanent, forced or voluntary, all remain unclear.”
“124. In our view the criteria set out in sub-sections 3(5)(a) to (c) are focussed on current, active steps being taken by the organisation. There could be reasonable grounds for a belief that the organisation is concerned in terrorism based on the organisation’s past activities, but that material would have to be such that it gave reasonable grounds for believing that the organisation was currently engaged in any activities specified in those three subsections. If the acts relied on occurred shortly before the decision being made by the Secretary of State they would be likely to provide powerful evidence to justify his belief, even in the absence of specific material that the organisation was at the time of the decision actively involved in, for example, planning a particular attack. Conversely, if the acts relied on occurred in the distant past, they would, without more, be unlikely to provide a reasonable basis for such a belief. Other factors would also affect the judgment to be made. We know only too well from the atrocities committed in the West in the last few years that some terrorist attacks can take many years to plan and execute, often using ‘sleepers’ I the target country. With such organisations, the lapse of a significant period of time between attacks may not be as significant as for organisations who, to all intents and purposes, are engaged in all-out military assault on the Government of a particular country. 125. Section 3(5)(d) of the Act is, however, rather different. It is clearly intended to be a general provision which sweeps up organisations who are “concerned in terrorism” that are not caught by the earlier subsections. We should note that defining a statutory test of “is concerned in terrorism” in terms that “an organisation is concerned in terrorism…if it is otherwise concerned in terrorism’ is not, at first sight, particularly helpful or illuminating. 126. For present purposes, taking account of the definition of terrorism in section 1 of the Act, the full meaning of the subsection is ‘otherwise concerned in the use or threat of action (as defined in section 1(2) of the Act) inside or outside the UK where the use or threat is designed to influence the government or to intimidate the public or section of the public (including a government and/or the public of a country other than the UK) and is made for the purpose of advancing a political, religious or ideological cause’. ‘Concerned’ in subsection 3(5)(d) must be activity (‘action’) of a similar character to that set out in the subsections 3(5)(a) to(c). 127. In our view, this could include an organisation which has retained a military capability and network which is currently inactive (i.e. not currently committing, participating in or preparing for terrorism) for pragmatic or tactical reasons, coupled with the intent of the organisation or members of it to reactivate that military wing (i.e. to commit, participate in or prepare for terrorism) in the future if it is perceived to be in the organisation’s interests so to do. It would not, however, include an organisation that simply retained a body of supporters, without any military capability or any evidence of, for example, attempts to acquire weapons or to train members in terrorist activity, even if the organisation’s leaders asserted that it might, at some unspecified time in the future, seek to recommence a campaign of violence. It cannot be said of an organisation in the latter category that a reasonable person could believe that it ‘is otherwise concerned in terrorism’ – i.e. that it is currently concerned in terrorism – merely because it might become involved in terrorist activity at some future date. 128. Furthermore the fact that the leaders of an organisation may, as between themselves, hold the view that a future resort to violence could not be excluded, would not meet the statutory requirement, unless it was coupled with some material to show that there were reasonable grounds for believing that the organisation was deliberately maintaining a military capability to carry that plan into effect or that positive steps were being taken at the time to acquire such a capability. Merely contemplating the prospect of future activity or expressing the desire to be a terrorist in the future without the ability to carry that into effect does not fall, without more, into any of the subsections of section 3(5).
“It is not our function to substitute our view for the decision of the Secretary of State. Ultimately at the First Stage the question remains whether a reasonable decision maker could have believed that the PMOI ‘is concerned in terrorism’ on the basis of all of the evidence that is now before us. It is our function, however, to scrutinise all of the material before us carefully and to examine its strengths and weaknesses to see if it provides reasonable grounds for the Secretary of State’s belief. At the Second Stage, we must scrutinise all of the material to see if it provides a reasonable basis for the exercise of his discretion.”
“(i) PMOI had been engaged in persistent terrorist activity over a number of years; its claim to have renounced terrorism in June 2001 (or thereafter) was one the Secretary of State was not required to accept; (ii) its claim thereafter to have retained military equipment for the purposes of self-defence was a claim that the Secretary of State was not required to accept; (iii) its further claim “voluntarily” to have surrendered its military equipment in 2003 was not a claim that the Secretary of State was required to accept; and (iv) PMOI was an organisation that often made public statements that were self-serving, and that the Secretary of State was entitled to disbelieve.”
“In a situation where an organisation has a long and active history of committing acts of terrorism, the Secretary of State was plainly entitled to be cautious when considering and assessing an application for deproscription based upon an assertion that that organisation had renounced violence.”
“Mere cessation of terrorist acts do not amount to a renunciation of terrorism. Without a clear and publicly available renunciation of terrorism by PMOI, I am entitled to fear that terrorist activity that has been suspended for pragmatic reasons might be resumed in the future.” (paragraph 23) To this can be added the applicant’s statement “…I believe that I continue to be entitled to have regard to what the nature and scale of activities was relatively recently in determining the application. This issue would not, of course, arise if the organisation has clearly ceased to be “concerned in terrorism”
“348…there is no evidence that the PMOI has at any time since 2003 sought to re-create any form of structure that was capable of carrying out or supporting terrorist acts. There is no evidence of any attempt to ‘prepare’ for terrorism. There is no evidence of any encouragement to others to commit acts of terrorism. Nor is there any material that affords any grounds for a belief that the PMOI was ‘otherwise concerned in terrorism’ at the time of the decision in September 2006. In relation to the period after May 2003, this cannot properly be described as ‘mere inactivity’ as suggested by the Secretary of State in his Decision Letter. The material showed that the entire military apparatus no longer existed whether in Iraq, Iran or elsewhere and there had been no attempt by the PMOI to re-establish it. 349. In those circumstances, the only belief that a reasonable decision maker could have honestly entertained, whether as at September 2006 or thereafter, is that the PMOI no longer satisfies any of the criteria necessary for the maintenance of their proscription. In other words, on the material before us, the PMOI is not and, at September 2006, was not concerned in terrorism.”