“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interests or to secure the payment of taxes or other contributions or penalties.”
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“In determining whether the decision should be set aside, the court must apply the principles applicable on an application for judicial review.”
“… the question is … whether there has actually been a violation of the applicant’s Convention rights and not whether the decision-maker properly considered the question of whether his rights would be violated or not.”
“The court’s role is to see that the Government strictly complies with all formal requirements, and rationally considers the matters it has to confront. Here, because of the subject matter, the law accords to the executive an especially broad margin of discretion.”
“However intense or exacting the standard of review in cases where Convention rights are engaged, it stops short of transferring the effective decision-making power to the courts.”
“although the Convention calls for a more exacting standard of review, it remains the case that the judge is not the primary decision-maker.”
“It is well established that on the question of proportionality the court is the primary decision-maker and, although it will have regard to and may afford a measure of respect to the balance of rights and interests struck by a public authority such as the police in assessing whether the test at stage (iv) is satisfied, it will not treat itself as bound by the decision of the public authority subject only to review according to the rationality standard: see A v Secretary of State for the Home Department[2005] 2 AC 68 (‘the Belmarsh case’), paras 40-42 and 44 (per Lord Bingham of Cornhill, with whom a majority of the nine-member Appellate Committee agreed); Huang v Secretary of State for the Home Department[2007] 2 AC 167 , para 11; R (SB) v Governors of Denbigh High School[2007] 1AC 100 , paras 29-31 (Lord Bingham) and 68 (Lord Hoffmann); and R (Aguilar Quila) v Secretary of State for the Home Department[2012] 1 AC 621 , paras 46 (Lord Wilson JSC), 61 (Baroness Hale of Richmond JSC) and 91 (Lord Brown of Eaton-under-Heywood JSC) (Lord Phillips of Worth Matravers PSC and Lord Clarke of Stone-cum-Ebony JSC agreed with Lord Wilson and Baroness Hale JJSC). This reflects the features that the Convention rights are free-standing rights enacted by Parliament to be policed by the courts, that they are in the form of rights which are enforced by the European Court of Human Rights on a substantive basis rather than purely as a matter of review according to a rationality standard, and that the question whether a measure is proportionate or not involves a more searching investigation than application of the rationality test. Thus, in relation to the test of proportionality stricto sensu, even if the relevant decision-maker has had regard to all relevant factors and has reached a decision which cannot be said to be irrational, it remains open to the court to conclude that the measure in question fails to strike a fair balance and is disproportionate.”
“28. In the course of their discussion of this issue [in Ziegler], Lord Hamblen and Lord Stephens stated at para 59: ‘Determination of the proportionality of an interference with ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case’. One might expect that to be the usual position at the trial of offences charged under section 137 in circumstances where articles 9, 10 or 11 are engaged, if the section is interpreted as it was in Ziegler; and that was the only situation with which Lord Hamblen and Lord Stephens were concerned. The dictum has, however, been widely treated as stating a universal rule; and that was the position adopted by counsel for JUSTICE in the present case. 29. That view is mistaken. In the first place, questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department[2008] UKHL 53 ;[2009] 1 AC 287 , the nine-judge decision in R (Nicklinson) v Ministry of State for Justice[2014] UKSC 38 ;[2015] AC 657 , and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening)[2017] UKSC 51 ;[2020] AC 869 and R (SC) v Secretary of State for Work and Pensions[2021] UKSC 26 ;[2022] AC 223 . 30. Those cases also demonstrate the related point that the determination of whether an interference with a Convention right is proportionate is not an exercise in fact-finding. It involves the application, in a factual context (often not in material dispute), of the series of legal tests set out at para 24 above, together with a sophisticated body of case law, and may also involve the application of statutory provisions such as sections 3 and 6 of the Human Rights Act, or the development of the common law. As Lord Bingham of Cornhill stated in the Belmarsh case (A v Secretary of State for the Home Department[2004] UKHL 56 ;[2005] 2 AC 68 , para 44), with the agreement of the majority of a nine-member Appellate Committee of the House of Lords: ‘The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom(1999) 29 EHRR 493 . Nor should domestic courts do so.’ 31. That is reflected in the approach adopted by this court to appeals on questions of proportionality. In cases such as those cited in the previous two paragraphs, the court (or, in the Belmarsh case, the House of Lords) did not accord any deference to the assessment of proportionality by the courts below, or limit its review to an assessment of the rationality of their conclusion, but carried out its own assessment. The same is true of other appeals concerned with rules or policies in which the facts of the individual case were of greater significance, such as Bank Mellat v HM Treasury (No 2)[2013] UKSC 39 ;[2014] AC 700 and R (Elan-Cane) v Secretary of State for the Home Department[2021] UKSC 56 ;[2022] 2 WLR 133 . 32. That also reflects the related fact that the judicial protection of statutory rights by appellate courts is not secured merely by review according to a standard of unreasonableness. Nor does such a restricted review meet the requirements of the Convention, as this court, and the House of Lords before it, have pointed out on many occasions: see, for example, the Belmarsh case, para 44, where Lord Bingham referred to ‘[t]he greater intensity of review now required in determining questions of proportionality’. 33. However, in Ziegler, the majority of the court treated issues of proportionality as being susceptible to appeal by way of case stated only on the basis explained in Edwards v Bairstow[1956] AC 14 : that is to say, if an error of law was apparent on the face of the case, or if the decision was one which no reasonable court properly instructed as to the relevant law could have reached (see Ziegler at paras 29, 36 and 42-52). In arriving at that approach, Lord Hamblen and Lord Stephens interpreted the decision in In re B, in the light of a dictum of Lord Carnwath in R (R) v Chief Constable of Greater Manchester Police[2018] UKSC 47 ;[2018] 1 WLR 4079 (“R (R)”), para 64, as meaning that appellate courts should adopt a standard of unreasonableness when considering issues of proportionality. In re B, like the more recent case of In re H-W (Children)[2022] UKSC 17 ;[2022] 1 WLR 3243 , was concerned with the proportionality of a specific care order in the light of the circumstances of a particular child: a one-off decision, affecting only persons involved in the proceedings, which the judge who heard the evidence was particularly well placed to take. The approach adopted by this court was that the appellate court should intervene if the lower court’s assessment of proportionality was wrong. That approach is capable of being applied flexibly, since the test or standard applied in deciding whether a decision is wrong can be adapted to the context, as Lady Arden noted in Ziegler at paras 102-103, and as Lord Sales emphasised in his judgment. The case of R (R) was a judicial review concerned with the disclosure of particular information about an individual’s past in an enhanced criminal record certificate. Lord Carnwath followed the approach laid down in In re B, but added the observation cited by Lord Hamblen and Lord Stephens, that ‘for the decision to be “wrong” … it is not enough that the appellate court might have arrived at a different evaluation’. It would, however, be a mistake to attach undue significance to a statement which was made by Lord Carnwath in the context of a particular case without reference to a plethora of other cases, some of which have been mentioned in paras 29-31 above, in which a more interventionist approach was adopted by this court in order to enable it to fulfil its constitutional function and to perform its duty under the Human Rights Act.”
“The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom, above. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC erred in law and the Court of Appeal erred in failing to correct its error.”
“(1) Except where rule 52.7 or Rule 52.7A applies, permission to appeal may be given only where— (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard.”
“84. It is well established that a court entertaining a challenge to an administrative decision, ie a decision of the executive rather than a decision of a judge, must decide the issue of proportionality for itself – see the statements of principle in R (SB) v Governors of Denbigh High School[2007] 1 AC 100 , paras 29-30 and 63, and in Belfast City Council v Miss Behavin’ Ltd[2007] 1 WLR 1420 , paras 12-14, 24-27, 31, 42-46 and 89-91. However, this does not mean that an appellate court entertaining a challenge to a judicial decision, as opposed to an executive decision, must similarly decide the issue of proportionality for itself. If it did, it would mean that (subject to obtaining permission to appeal) litigants would be entitled to (or forced to undergo) two separate sequential judicial assessments of proportionality. I do not consider that there is anything in the Strasbourg jurisprudence or in the 1998 Act which suggests that such an entitlement should exist, even where there is a right of appeal. … 86. I agree with Lord Wilson at para 36 that, subject to the requirements ofarticle 6 of the Convention , it must be a question of domestic law as to how the challenge to proportionality is to be addressed on an appeal. There is, in my view, no reason why the Court of Appeal in a case such as this should not have followed the normal, almost invariable, approach of an appellate court in the United Kingdom on a first appeal, namely that of reviewing the trial judge’s conclusion on the issue, rather than that of reconsidering the issue afresh for itself. 87. That this is the normal function of the Court of Appeal is made clear byCPR 52.11 [now 52.21], which states that, save in exceptional cases, every appeal is limited to a review rather than a rehearing and the appeal will be allowed only where the decision of the lower court was “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court”
“As to the correct approach in an appellate court to findings and inferences of fact made by a judge at first instance after hearing evidence, there was no disagreement between counsel. In Assicurazioni Generali SpA v. Arab Insurance Group[2003] 1 WLR 577 , Clarke LJ summarised the position, referring also to a passage in a judgment of my own: 14. The approach of the court to any particular case will depend upon the nature of the issues kind of case determined by the judge. This has been recognised recently in, for example, Todd v Adam (trading as Trelawney Fishing Co)[2002] EWCA Civ 509 , Lloyd’s Rep 293 and Bessant v South Cone Incorporated[2002] EWCA Civ 763 . In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts. 15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a ‘rehearing’ under the Rules of the Supreme Court and should be its approach on a ‘review’ under the Civil Procedure Rules. 16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way. 17. In Todd’s case[2002] 2 Lloyd’s Rep 293 , where the question was whether a contract of service existed, Mance LJ drew a distinction between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts, as follows, at pp 319-320, para 129: ‘With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of “review” may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment - such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52. 11 (3) and (4) to the power of an appellate court to allow an appeal where the decision below was “wrong” and to “draw any inference of fact which it considers justified on the evidence” indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious.’ In the same case Neuberger J stressed, pp 305-306, paras 61 to 64, that the question whether there was a contract of service on the facts involved the weighing up of a series of factors. Thorpe LJ agreed with both judgments.’ The judgment of Ward LJ in the Assicurazioni Generali case may be read as advocating a different test, which would equate the approach of an appellate court to findings of fact with its approach to decisions taken in the exercise of a discretion. As Waller LJ correctly pointed out in Manning v. Stylianou[2006] EWCA Civ 1655 , that is not the correct test, and it is the judgment of Clarke LJ in the paragraphs quoted above from his judgment that gives proper guidance as to the role of the Court of Appeal when faced with appeals on fact.” (Emphasis added)
“The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger PSC said … that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge’s reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”
“it is most certainly both in the public interest to detain this ship and to publicise the fact of its detention”
“5.1 The Judge ought to have held, consistently with the parliamentary material before the Court, that sanctions were only properly to be imposed upon persons not personally involved in the activities being targeted where that was a necessary consequence of the adoption of ‘broad sectoral measures’, and that the relevant sectoral purpose of the shipping measures in Part 6 of the Sanctions Regulations was to attack Russian economic interests in the context (as stated in the accompanying statutory report) that ‘the vast majority of global trade in goods is carried on board ships’. 5.2 The Judge ought accordingly, and in the light of the specific designation and asset freezing provisions in the Sanctions Regulations, to have held that the proper use of the detention power such as regulation 57D needed either to rest upon the function or activity of the vessel itself; or alternatively that if based simply upon the ownership of that vessel, that the use of the power was consistent with the other asset-freezing provisions of the Regulations, and specifically with the manner in which the designation provisions had identified persons who were to be regarded as personally involved in the activities being targeted, so that subject to appropriate exemptions and procedural protections, their assets were properly to be frozen.”
“The ability to enforce transport sanctions through these offences is an important deterrent. The vast majority of global trade in goods is carried on board ships. Maritime sanctions are therefore crucial in achieving the objectives of the Russian sanctions regime and they are designed to cause significant short term disruption to Russian shipping, thereby restricting their economic interests and further holding the Russian government to account.”
“8. The Judge was not entitled to hold (judgment paragraphs 69 and 90) that the Secretary of State’s own statements, made a few hours after the decision to detain, had been personally taken by him, to the effect that detention had occurred because the vessel was owned by a person ‘with close connections to Putin’ or had ‘made their money through their association with President Putin’, were mere ‘excusable political hyperbole’ which ‘did not feature as a consideration in the Secretary of State’s own decision-making’. There was no evidence upon which such a finding could be made. 9. Since there was no such suggestion that these statements were true in Mr Naumenko’s case, or that there had been any basis at the time for the Respondent to think that they were true, if the Judge had concluded that the Secretary of State’s public statements meant what they said, he would have been bound also to conclude that the March 2022 decision was based upon legally irrelevant considerations.”
“It did not feature as a consideration in the Secretary of State’s own decision-making.”
“In any event it made no difference to the outcome.”
“The Judge erred in holding (judgment paragraph 56) that the requirement in regulation 57D(5)(c) to state the grounds on which a vessel is detained did not amount to a requirement to give reasons for the exercise of the power of detention (as opposed to the basis upon which the power was believed to exist). The Judge ought to have held, consistently with the authority cited to him, that such a statutory requirement, whilst not calling for the giving of detailed reasons, did require the Respondent to ‘explain broadly the basis of the decision.’”
“A detention direction given in relation to a ship– … (c) must state the grounds on which the ship is detained, and (d) must state that– (i) it is given under this regulation …” (c) must state the grounds on which the ship is detained, and (i) it is given under this regulation …”
“If it had been necessary to address the claimant’s challenge on a further ground, that there was a failure of the detention direction to state the grounds relied upon, I would have dismissed it. Regulation 57D(5)(c) requires the direction to state the grounds on which the ship is detained, whereas regulation 8(4) requires a statement of reasons for designation under Part 2. The contrast in the language of the two provisions means that the detention direction does not require grounds to be equivalent to a statement of reasons.” (Emphasis added)
“I do not believe that the decision in R v Birmingham City Council Education Appeals Committee ex parte B lays down any general principle save perhaps to say that a minimum requirement of the grounds of a decision in that they explain broadly the basis of the decision. I respectfully agree with what Macpherson J said in R v Lancashire County Council ex parte M[1995] ELR 136 ; the statute requires broad grounds rather than detailed reasons. What is required will depend on the issues that have been raised on the appeal. In a complex case the grounds may well have to be more elaborate than in a simple one. Where however there is no dispute as to the primary facts, I do not consider that the grounds are required to make findings about those facts.”
“The Phi is being detained on the grounds that it is owned, controlled or operated by Sergei Georgievich Naumenko, a person connected with Russia.”
“10. The Judge was not entitled to hold (judgment paragraphs 82, 89) that the April 2022 decision was not taken ‘as a holding measure while further evidence was collected’. The specific decision taken was to adopt what the relevant ministerial submission described as Option A, namely ‘Maintain detention direction whilst seeking further evidence’. 11. If the Judge had concluded accordingly, he would have been bound also to conclude that it was disproportionate and/or a breach of the Tameside duty to maintain the detention for a period of some 8 months thereafter without the Respondent either seeking further evidence, or reconsidering its decision in the light of factual material provided by the Appellants.”
“Mr Giffin [who led Mr Bethell in the High Court] did raise an issue about the legitimacy of the April 2022 decision. The argument was that it could not be legitimate to detain the vessel as a holding measure while further evidence was collected, and then not to undertake further inquiries. In my view, this places too much weight on the comment of Mr Robert Courts MP, the Parliamentary Under-Secretary of State, and on the summary in the cover sheet to the ministerial submission. The Secretary of State did not expressly share Mr Courts’ view, and the rationale of the decision in Annex D to the submission does not give any support to maintaining detention as a holding exercise. That Ward & McKenzie were invited to make further submissions does not detract from this point.”
“The owner of the Phi yacht, which SoS detained last month, has had his legal advisors get in touch.”
“Maintain detention direction whilst seeking further evidence (Recommended).”
“Minister Courts added that he is content to maintain detention whilst we obtain further evidence before considering fully in the round once that is obtained to come to a properly evidenced decision.”
“Accordingly, the Secretary of State remains content that the continued detention of the Vessel is appropriate and in accordance with the Regulations; however, the Secretary of State would be happy to consider any evidence Mr Naumenko may wish to present in writing in relation to the continued detention of the Vessel.”
“4.2 It was necessary for the Respondent to explain in concrete terms how the measure was expected to serve the aim identified, whether that was because the detention was intended directly to influence the Russian authorities in a particular way, or because it was intended to cause Mr Naumenko to behave in a particular way which would in turn influence the Russian authorities. Without an explanation of that nature, the measure could not be rationally connected with the legitimate aim relied upon, and unless the explanation showed that the positive impact of the measure was commensurate with the interference with individual rights, it would also fail to strike the fair balance required by A1P1. 4.3 No such explanation was contained in the contemporaneous decision-making documents, and no such explanation was provided by the Respondent’s evidence in answer to the claim. 4.4 It was not a sufficient answer (contrary to the Judge’s ultimate conclusion on the issue as set out at paragraph 86 of the judgment) to say: 4.4.1 That the Respondent ‘need not demonstrate the efficacy of each individual detention . . . in order to maintain a sanctions measure.’ Whilst that might be true in a situation in which a significant number of individual detentions resulted from a general rule or policy, so that it was the overall effect of the rule or policy which mattered, detention decisions under regulation 57D are individual and, on the Respondent’s own case, specific to the particular facts; they are also, both in fact and by the very nature of Part 6 of the Sanctions Regulations, very few in number. Further, whilst it is legitimate to approach individual sanctions measures on the basis that it is their cumulative effect which is intended ultimately to influence the Russian government, it is nonetheless necessary to show that the individual measure can at least be expected to make some contribution to that effect. 4.4.2 That the Respondent had a broad margin of discretion, so that beyond a rational connection between the sanctions measure and the aim, it was ‘not an issue for the court’. Proportionality is a matter for the court, which must scrutinise rigorously whether the sanctions measure makes logical sense, even though it will normally defer to any specific judgment made by the decision-maker at the time of the decision in relation to questions of foreign policy or similar issues. The evidence in this case disclosed no such concrete consideration of the measure’s anticipated effect.” 4.4.1 That the Respondent ‘need not demonstrate the efficacy of each individual detention . . . in order to maintain a sanctions measure.’ Whilst that might be true in a situation in which a significant number of individual detentions resulted from a general rule or policy, so that it was the overall effect of the rule or policy which mattered, detention decisions under regulation 57D are individual and, on the Respondent’s own case, specific to the particular facts; they are also, both in fact and by the very nature of Part 6 of the Sanctions Regulations, very few in number. Further, whilst it is legitimate to approach individual sanctions measures on the basis that it is their cumulative effect which is intended ultimately to influence the Russian government, it is nonetheless necessary to show that the individual measure can at least be expected to make some contribution to that effect. 4.4.2 That the Respondent had a broad margin of discretion, so that beyond a rational connection between the sanctions measure and the aim, it was ‘not an issue for the court’. Proportionality is a matter for the court, which must scrutinise rigorously whether the sanctions measure makes logical sense, even though it will normally defer to any specific judgment made by the decision-maker at the time of the decision in relation to questions of foreign policy or similar issues. The evidence in this case disclosed no such concrete consideration of the measure’s anticipated effect.”
“The patronage system that exists in Russia, and the loyalty that is required from wealthy Russians, provides a further basis on which it is rational to conclude that a person resident in Russia who retains significant wealth is likely, directly or indirectly, to have benefitted from the Russian regime. Mr Driver's evidence in his first witness statement (especially §§50-54 and §§136-139) and in his second witness statement (especially §§12-17) explains the nature of Russia's political economic context, and whilst the Judge did not consider it necessary to rely upon this evidence, it is respectfully submitted that, if necessary, it provides an additional reason to uphold the Judge's conclusion that detaining a superyacht such as the Phi is rationally connected to the legitimate aim of encouraging Russia to cease its actions in Ukraine by way of targeted sanctions measures.”
“The nature of the Russian political economy is essentially one of patronage. By this, I mean a system in which opportunities and material benefits, government contracts, and senior positions in the government and government-affiliated entities, are provided by the state to a small circle of insiders, in return for their loyalty and support.”
“The Judge ought to have held that the unlawful detention of an asset in such a way as to entail, for a prolonged and indefinite period, the owner being unable to use that asset for its intended purpose in accordance with normal rights of ownership amounts to the exercise of a right of dominion over that asset sufficient to constitute the former tort of conversion as now subsumed into the statutory tort of interference with goods.”
“The Secretary of State has a discretion under the 2019 Regulations whether or not to impose sanctions on an individual and, where Convention rights are engaged as they are here, it is necessary in the exercise of that discretion for the Secretary of State properly to consider the proportionality of the measure proposed.” (Emphasis added)
“Undoubtedly, this is a case where close scrutiny is necessary in order to adjudicate on a complaint that Convention rights have been infringed. And it is the structured analysis articulated in Bank Mellat that must be applied. But the Court does not assume the role of primary decision maker on issues that turn on the exercise of judgment or the determination of policy, limiting itself instead to asking whether the decision was one properly open to the executive. …” (Emphasis added)
“He says that Parliament has entrusted the Secretary of State with the authority to make decisions in relation to sanctions designations and that, having conducted a careful assessment, taking account of the relevant human rights considerations, the Secretary of State was entitled to conclude that the Claimant’s designation was proportionate.”
“In my judgment, this is an area where the Courts have to defer to the judgment of the Secretary of State. The relative benefits, disadvantages and effectiveness of different measures taken in pursuit of foreign policy objectives is not one on which the Court can second-guess the Foreign Office. All that can properly be said is that the Government’s analysis is not self-evidently irrational or outside the range of reasonable responses.” (Emphasis added)
“demonstrate that the Secretary of State has had conscientious regard to the impact of designation on both the Claimant and his family. They have properly been taken into account but have been found insufficient to outweigh the community interest in the maintenance of sanctions in the Claimant’s case. …” (Emphasis added)
“The Secretary of State is the primary decision-maker under statute but the Court is well placed to judge the reasonableness of his analysis.”
“102. Third, there was before me an interesting, but ultimately redundant, argument about the degree to which Evraz continues to be controlled by Mr Abramovich. The Claimant acknowledges, in his second statement, that Mr Abramovich and two other men, Messrs Abramov and Frolov (acting through companies owned by them) are regarded as ‘concert parties’ and therefore ‘controlling shareholders’ under the Financial Conduct Authority’s Handbook. He points out that Mr Abramovich holds 28.64% of the shares, Mr Abramov holds 19.223% and Mr Frolov holds 9.65%. However, Lord Anderson seeks to draw a fine distinction between the generally understood definition of ‘concert party’ in company law and the definition of joint arrangement under paragraph 3(2) of Schedule 1 to the 2019 Regulations. He says that in company law the phrase ‘concert party’ is understood to mean a group of shareholders who coordinate their actions to obtain a given outcome, whereas a joint arrangement under the 2019 Regulations is defined as ‘an arrangement between the holders of shares or rights that they will exercise all or substantially all the rights conferred by their respective shares or rights jointly in a way that is pre‐ determined by the arrangement.’ Accordingly he submits that to suggest that the Claimant received financial benefit from Mr Abramovich is based on an error of law. 103. I reject the Claimant’s argument in this regard. In my judgment, Sir James was right in his submission that, given that Messrs Abramovich, Abramov and Frolov are treated by Evraz as ‘acting in concert’, there are reasonable grounds to suspect that there exists a ‘joint arrangement’ between them within the meaning of paragraph 3. Accordingly, each of them is to be treated as holding the combined shares of all three, and Mr Abramovich can be treated as owning, directly or indirectly, more than 50% of the shares or voting rights in Evraz.”
“The learned Judge misdirected himself in concluding that the Appellant’s designation was capable of ‘contributing systematically to the desired objective’ of the 2019 Regulations, or was rationally connected to it (Judgment, §128). In particular, the learned Judge erred in concluding that: (a) The assessment in the Appellant’s case involved matters of executive judgement based on the Secretary of State’s institutional expertise (Judgment §116), such that the Secretary of State was better placed to make an assessment than the Court and/or that the Secretary of State’s decision was based on such judgements (a conclusion which finds no support in the Secretary of State’s evidence). (b) The post-decision evidence of FCDO officials is to be equated with the reasons of the Secretary of State for making the decision under challenge and/or entitled to particular weight or deference, whether for the reasons provided at Judgment §96 or at all. (c) The mere existence of ‘reasonable grounds’ to suspect that a state of affairs existed suffices for the purposes of the proportionality assessment. (d) It was permissible to impose sanctions so as a ‘send a message’ that conduct which had already ceased was unacceptable (Judgment §122) either at all, or in a discriminatory fashion. (e) A systematic contribution could properly be inferred because sanctions on the Appellant ‘may well discourage others from involving themselves in businesses supportive of the Russian state’ or encourage them to divest (Judgment §§118, 127), or because the Appellant ‘may well’ be able to speak out privately (Judgment §124).”
“The learned Judge misdirected himself in respect of the proper approach to the assessment of whether a fair balance had been struck between the rights of the Appellant and the interests of the community. In particular, the Learned Judge erred: (a) In concluding that the Secretary of State had regard, at the material time, to the fact that the Appellant’s British citizenship meant that his designation had worldwide effects (Judgment, §§140-141). (b) In concluding that the effects of designation were mitigated on the basis that they are “temporary and reversible” (Judgment, §141). The sanctions imposed on the Appellant are open-ended, the government’s own statements suggest that existing Russia sanctions are liable to remain in place for the long term, there is no obligation on the Secretary of State to review their appropriateness, and (unless there is a material change of circumstances) the Appellant is not entitled to request a ministerial review. (c) In applying obiter remarks of Sir Ross Cranston in Dalston Projects Ltd v Secretary of State for Transport[2023] EWHC 1885 (Admin) to the assessment of fair balance. Both rational connection and fair balance properly fall to be demonstrated by reference to individual designation decisions and not by reference to ‘the cumulative effect of all the measures imposed under that regime, together with other types of diplomatic pressure’ (Judgment, §§136-138). Properly directed, the Court ought to have concluded that the Appellant’s designation imposed an unfair and disproportionate burden on him.” (a) In concluding that the Secretary of State had regard, at the material time, to the fact that the Appellant’s British citizenship meant that his designation had worldwide effects (Judgment, §§140-141). (b) In concluding that the effects of designation were mitigated on the basis that they are “temporary and reversible” (Judgment, §141). The sanctions imposed on the Appellant are open-ended, the government’s own statements suggest that existing Russia sanctions are liable to remain in place for the long term, there is no obligation on the Secretary of State to review their appropriateness, and (unless there is a material change of circumstances) the Appellant is not entitled to request a ministerial review. (c) In applying obiter remarks of Sir Ross Cranston in Dalston Projects Ltd v Secretary of State for Transport[2023] EWHC 1885 (Admin) to the assessment of fair balance. Both rational connection and fair balance properly fall to be demonstrated by reference to individual designation decisions and not by reference to ‘the cumulative effect of all the measures imposed under that regime, together with other types of diplomatic pressure’ (Judgment, §§136-138). Properly directed, the Court ought to have concluded that the Appellant’s designation imposed an unfair and disproportionate burden on him.”