“In July 2011 HMG began to identify potential entities and individuals for designation in preparation for a further round of EU sanctions. There was also a concern that effective sanctions were time critical due to the risk of Iran reaching a point in its nuclear capability where its progress would be irreversible. Four of the five shipping individuals (the exception being Mr Nabipour) were identified as potentially suitable for proposal to the EU Council on28 July 2011 . Further research and collation of evidence in support of these designations continued through to early September 2011. Mr Nabipour was added to the list of proposed designees on26 August 2011 following a routine cross-Whitehall meeting to review Iranian shipping developments. On8 September 2011 , the proposal to list the Claimants was given initial consideration by the FCO. Further cross-Whitehall meetings were held on 6 and12 October 2011 to discuss draft text of the justification for the designation proposals for each of the individuals on the full list. A version of the list amended to reflect the approved unclassified text was sent to the FCO Iran team on25 October 2011 . On 26 October FCO undertook a final review of the unclassified text and examined the list to ensure they were content that the descriptors provided sufficient information to propose the designation. Once consensus was reached, the list was despatched as a COREU along with the descriptions/justifications on31 October 2011 …”
“The Secretary of State is (and was at the time of the decision to propose the Claimants) in possession of evidence on which he was entitled rationally to conclude as follows. i) IRISL was engaged in, directly associated with, or provided support for Iran’s proliferation-sensitive nuclear activities or for the development of nuclear weapon delivery systems, including through the procurement of the prohibited items, goods, equipment, materials and/or technology. ii) Each of the listed entities named above as being associated with IRISL was acting on IRISL’s behalf, and each of their activities included activities directed towards evading or violating the 2010 Council Decision, the 2010 Council Regulation and/or the UNSCRs. iii) Each of the Claimants held the position in IRISL itself and/or within the associated listed entities, as stated in the Council’s reasons. iv) By virtue of their position in the highest echelons of IRISL’s wider corporate structure (including those associated companies), they were acting on behalf of IRISL and/or at IRISL’s direction. v) The Claimants were accordingly “senior members of IRISL” within the meaning of Article 20(1)(b) of the 2010 Council Decision.”
“In order to defend this case, the SSFCA is required to set out the rational basis for, together with the evidence in support of, his decision to propose the Claimants’ listing. In open, the SSFCA maintains that such evidence is available in closed, hence this application: see Detailed Grounds para 34 and 36. On examination of the materials in closed, however, it is plain that they afford no basis for such a decision by the SSFCA at all. First, there is no evidence in closed of a rational and considered decision having been taken by the SSFCA on the grounds that he would advance in open. Secondly, there is no evidence in closed of the extent of any enquiries made by the SSFCA prior to his decision to propose the Claimants’ listing. Thirdly, while in open the SSFCA maintains that he had material available to him which supported five critical propositions which he would seek to rely on to make good his defence, in closed it transpires that the first proposition (upon which the other four are all founded) cannot be made out [This is a reference to paragraph 34(i) of the Detailed Grounds of Defence.] In summary therefore, and as before, the SAs maintain that the closed documents demonstrate the reality that the SSFCA proposed the claimants on [a] basis …….which was never properly analysed, assessed, or considered against the wider canvas of ‘open’ evidence which might have been obtained following reasonable or proportionate enquiries had they been conducted. Accordingly, the SAs maintain their objection to the SSFCA’s application: the closed material that the SSFCA would seek to withhold is of such limited relevance and utility to the SSFCA’s defence that its disclosure is not strictly ‘required’ here. Rather, a PII process with suitable gisting of the scope and (extremely limited) extent of the ‘additional’ closed material (i.e. closed material which travels beyond that which is in open) would offer an appropriate mechanism by which the admitted sensitivities of the underlying documents themselves could be protected while informing the Claimants of the essence of the SSFCA’s defence…….. For these reasons, the SAs respectfully submit that it cannot be in the interests of the fair and effective administration of justice to allow the SSFCA’s application when a PII process could operate fairly to ensure the matter is tried – a fortiori where on the evidence in closed, it appears there is no evidence sufficient to support the SSFCA’s defence in any event. Further, it is submitted that the SSFCA cannot overcome the deficiencies of the closed material produced in support of the present application by reference to s.6(6) which provides that an application ‘need not be based on all the material that might meet the conditions’…….At least in the present context, it is clearly necessary for the Court to evaluate the central evidence in open and closed in order to determine whether it is in the interests of fair and effective administration of justice to allow the application for a closed material procedure. …. Further and alternatively, in closed there appears to be no answer to the Claimants’ open representatives’ submission that the SSFCA proposed the Claimants’ listing in purported reliance on a sensitive material in circumstances where (a) European law makes clear that the Claimants would have to be afforded an opportunity to comment on that material; and (b) the SSFCA knew that no such mechanism would be available through the Council/EU Court’s procedures….. In the light of all the above, the SAs submit that the SSFCA has failed to give full and proper consideration to the possibility of a claim for PII as required by s.6(7), JSA 2013. It may well be here that, with suitable gisting, the Claimants could be afforded a sufficient understanding of the SSFCA’s approach leading to his proposal to list them, for the matter to be tried without a closed material process. …”
“In order to advance a submission that a control order was valid when made but only succumbed to legal difficulty at a later date, the Secretary of State would have to establish that, in relation to the point for which he is asserting legality, he can satisfy the court as to the reasonable grounds for his suspicion of terrorism-related activity and the need for public protection. However, he could only do that by relying on the material that he is unwilling to disclose or gist. In other words, he would need to resort now to closed material in a manner not countenanced by AF(No.3). Whilst I accept Mitting J's suggestion that, in court, the Secretary of State does not have to rely on all the material that led him to his view about terrorism-related activity and public protection, he does have to rely (with consequential disclosure obligations) on sufficient of it to satisfy the court that his decision to make a control order was not and is not flawed. In these cases, he has chosen not to do so. I shall assume he has reasonable grounds for exercising that choice. However, its consequence is that he has disabled himself from satisfying this appellate court that, throughout, he has been able to satisfy section 2(1). In essence, we are being invited to assume that, but without access to the relevant material….. ……Although Article 6 may not bite at a stage of administrative determination, it is axiomatic that, when the Secretary of State decides that there are grounds for making a non-derogating control order (which, by definition, imposes restrictions on a person's liberty), he knows that he will have to justify it so as to obtain the permission of the court under section 3(2) and, in due course, and subject to more intense scrutiny, at a hearing under section 3(10)…………I cannot escape the conclusion that it is unlawful for the Secretary of State to begin to move towards the making of a control order if, in order to justify it, he would need to rely on material which he is not willing to disclose to the extent required by AF(No.3), regardless of his understanding of the law at the time. If I were wrong about that it would mean that the Secretary of State could lawfully place significant restrictions on a person's liberty without that person ever being able to discover the basis for the Secretary of State's decision. It would be beyond scrutiny or challenge. This would run counter to the unappealed decision of the Court of Appeal in Secretary of State for the Home Department v MB[2007] QB 415 that the task of the court is to determine whether the decision to make the control order was flawed at the time it was made and thereafter .”
“I have concluded that the claims advanced cannot properly or fairly be determined on the basis only of the matters that have been referred to in open, as any such material would exclude material parts of the underlying material supporting the relevant decision”
“I have….considered carefully the various submissions for alternative mechanisms intended to deal with the problem of sensitive material. What of gisting and summary? Much of the material here could not be summarised or gisted without either being summarised so generally as to be excessively bland, or causing the damage to national security which is feared. That conclusion proceeds from the nature of the material. I do not consider that gists or summaries provide the means to dispense with a closed material procedure and yet mount an effective trial. It is a rather different question as to whether, if a closed material procedure takes place, summaries and gists may play a role in permitting the Claimants and their representatives to give evidence focussed on the issues, and ensure their accounts cover the points which need to be addressed. That will need careful and detailed consideration………. Difficult though closed material procedures can be, they do carry the benefit that the Claimants have both a team of lawyers who can communicate freely with them, and special advocates who cannot communicate directly with them, but who will be aware of all the evidence, and can test it thoroughly, with the Claimants' instructions and evidence in mind. The court will be alive to the need to open as much evidence as possible, and to ensure that the Claimants address in evidence all that needs to be covered. Experience of conducting closed material procedures does suggest that given care about the practicalities, given an emphasis on ensuring the issues are properly addressed, combined with caution and clear thinking as to the inferences that can fairly be drawn, a just result can be achieved. The problem that cannot be overcome is that justice cannot be seen to have been done. Certainly, the risks attendant on a confidentiality ring are high, in my view, and would be so here.”