“(i) whether [the measure’s] objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether [the measure] is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.”
“Neither of these questions is new. Far from it: a great deal has been said about them both by the Appellate Committee of the House of Lords and the Supreme Court. Nevertheless, … the principles are not always as well understood as they need to be and so it will be helpful to summarise them here, to assist first-instance and appellate courts from hereon.”
“4. The regulations contained in this instrument that are made under section 1 of the Act [SAMLA] are for the purposes of encouraging Russia to cease actions destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine.”
“11. Sanctions can be used to change behaviour; constrain damaging action; or send a signal of condemnation. The UK believes sanctions can be an effective and reasonable foreign policy tool if they are one part of a broader foreign policy strategy for a country… 12. The gravity of the situation in Ukraine means that putting sanctions in place is a reasonable measure to take. Russia continues to undermine Ukrainian security, most recently by its actions in the Black Sea. Sanctions will put pressure on Russia to implement the Minsk Agreements fully, end its illegal annexation of Crimea and Sevastopol, withdraw its troops from Ukrainian soil, end its support for the separatists, and enable the restoration of security along the Ukraine-Russia border under effective and credible international monitoring. Sanctions send a clear political signal intended to drive behavioural change by the Russian state as a whole towards Ukraine.”
“14. These sanctions are not an end in themselves. They are one element of a broader strategy to achieve the UK’s foreign policy goals to change the Russian Government’s policy towards Ukraine. Direct lobbying alone has not proved sufficient. The UK is therefore combining sanctions with diplomatic measures, individual visa denials or blocking Russian membership of the G8, cancelling the annual EU-Russia Summit, and reducing access to European Bank for Reconstruction and Development project funding, as well as bilateral lobbying, lobbying through international frameworks, and supporting UN resolutions.”
“… will send a clear political signal to Russia that we are aligned with international partners and would signal to the wider international community that territorial expansionism is unacceptable and should be met with a serious response.”
“19.a There are good reasons for each of the prohibitions and requirements set out in the Regulations to be enforceable by criminal proceedings. The ability to enforce these measures by criminal proceedings is an effective deterrent, it is consistent with existing legislation and it enables the government to take a proportionate response to potentially serious acts and omissions which would undermine the purpose of the sanctions regime.”
“6.—(1) The Secretary of State may not designate a person under regulation 5 (power to designate persons) unless the Secretary of State— (a) has reasonable grounds to suspect that that person is an involved person, and (b) considers that the designation of that person is appropriate, having regard to— (i) the purposes stated in regulation 4 (purposes), and (ii) the likely significant effects of the designation on that person (as they appear to the Secretary of State to be on the basis of the information that the Secretary of State has). (2) In this regulation, an ‘involved person’ means a person who— (a) is or has been involved in— (i) destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine, or (ii) obtaining a benefit from or supporting the Government of Russia, (b) is owned or controlled directly or indirectly (within the meaning of regulation 7) by a person who is or has been so involved, (c) is acting on behalf of or at the direction of a person who is or has been so involved, or (d) is a member of, or associated with, a person who is or has been so involved.” (a) has reasonable grounds to suspect that that person is an involved person, and (b) considers that the designation of that person is appropriate, having regard to— (ii) the likely significant effects of the designation on that person (as they appear to the Secretary of State to be on the basis of the information that the Secretary of State has). (i) destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine, or (ii) obtaining a benefit from or supporting the Government of Russia, (b) is owned or controlled directly or indirectly (within the meaning of regulation 7) by a person who is or has been so involved, (c) is acting on behalf of or at the direction of a person who is or has been so involved, or (d) is a member of, or associated with, a person who is or has been so involved.”
“84 … It is sufficient in this context to accept [the Transport Secretary’s] submission that given the likely direct and indirect links between Mr Naumenko’s wealth, economic activities, and the Russian state, it is rational to consider that Mr Naumenko is the sort of individual economic actor on whom sanctions could effect the ‘broad and deep impact’ which Parliament intended via the ‘connected with Russia’ powers in, at the least, weakening their tacit support for the regime.”
“There can be no doubt that the interference with the claimants’ property rights is significant. Even if this is not strictly a deprivation of property case, the claimants are deprived of the use of the Vessel for a significant and indefinite time. There are, however, as the Judge observed at paras 87-88 of his judgment, weighty public interest factors on the other side of the balance, in particular the need to bring to an end the illegal use of force by Russia and the violation of the territorial integrity of Ukraine. Further, as the Judge noted, the individual burden on the claimants is not as great as it would have been if, for example, they suffered particular hardship. The fact that this is the detention of a luxury superyacht is of relevance in that context.”
“Mr Shvidler and his family established their life in the UK years ago, encouraged by this Government and its policies to settle here, put down roots, form communities, invest and engage in philanthropic activities as set out above. They now find that, through no fault of their own, and owing to actions taken by a foreign government, and which they abhor, they are treated as pariahs by the government in the country they have made their home.”
“(1) Mr Shvidler is a business partner of Mr Abramovich, with whom Mr Shvidler has maintained a close relationship for decades and from whom he has obtained financial benefit. Mr Shvidler is therefore associated with a person (Mr Abramovich) who is involved in obtaining a benefit from or supporting the Government of Russia by owning or controlling various companies including Evraz plc. On this basis he falls within regulation 6(2)(d) and 6(2)(a)(ii); and (2) Mr Shvidler has been involved in obtaining a benefit from or supporting the Government of Russia through working as a nonexecutive director of Evraz plc, which carries on business in the Russian extractives sector.
“… the Secretary of State does not have to establish all eight of the factors which were argued about extensively both before him and before this court. Some of those factors may have been weaker than others. What is crucial at the end of the day is whether there is a rational connection between the legitimate aim and the means chosen to achieve it. In my judgment, the answer to that question is obvious: there clearly is.”
“If sanctions are to be effective, a serious price has to be paid by those who are within the definition of people to be designated under the 2019 Regulations. On the other side of the balance is Russia’s very serious violation of international law and the need to bring the invasion of Ukraine to an end.”
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
“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.”
“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 provisions 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 interest or to secure the payment of taxes or other contributions or penalties.”
“generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision”
“It has brought large-scale, high intensity land warfare to Europe, and generated a refugee and energy crisis in the region. It has caused enormous loss of life and human suffering. Russia’s barbaric and continued targeting of Ukraine’s civilians and civilian infrastructure has precipitated a dire humanitarian crisis and has caused at least 22,607 civilian casualties to date including 8,541 civilian deaths. At least one child has been killed in Ukraine in each day of the conflict. Women have been subjected to trafficking and conflict-related sexual violence. The human cost on the battlefield has been devastating, with at least 100,000 soldiers killed or wounded on each side.”
“In the past year Russian forces have killed thousands of Ukrainians, caused millions to flee, and forcibly deported many thousands of Ukrainians, including children, to Russia. Russia has destroyed hospitals, schools, and energy and critical infrastructure, and left historic cities in ruins. In areas liberated from Russian forces, there is evidence of mass graves, sexual violence, torture and other atrocities. We strongly condemn all of Russia’s outrageous acts [...]. We reaffirm our commitment to strengthening the unprecedented and coordinated sanctions and other economic measures the G7 and partner countries have taken to date to further counter Russia’s capacity to wage its illegal aggression.”
“As of10 February 2023 , the United Nations Office for the Coordination of Humanitarian Affairs estimated that within Ukraine, over 5 million people remained displaced by the war while 8 million refugees from Ukraine have been recorded across Europe. There are credible reports that war crimes have been committed by Russian forces. Russia’s invasion of Ukraine is in breach of fundamental rules of international law, and in particular Article 2(4) of the UN Charter.”
“Applying sanctions to high-net-worth individuals who are ‘connected with Russia’ and thereby limiting the usual economic benefits and/or luxuries they enjoy, can serve to incentivise behaviour change in ways that may impact the Russian state, including resigning from key positions, divesting, and speaking out publicly and/or privately against the war. Such sanctions also serve to disincentivise and deter others from taking up business positions or conducting economic activity in Russia, all of which can help to constrain or coerce, either directly or indirectly, the Russian Government’s actions.”
“In this regard I accept [Counsel for the Transport Secretary’s] submission that the Secretary of State need not demonstrate the efficacy of each individual detention (or designation) decision in order to maintain a sanctions measure. Certainly, it would be difficult to demonstrate that any one decision would have the desired foreign policy outcome. It is not an issue for the court. In the end all that is needed is a rational connection between the sanctions measure and the aim. Additionally, the Secretary of State is granted a broad margin of discretion in a case such as this to decide that the exercise of the sanctions power is needed, when coupled with other measures, as part of pursuing the UK’s foreign policy objectives.”
“Driven to its logical conclusion, the claimants’ submission would mean that, if 100 ships are detained, each owner of one ship could say that detaining his ship is not going to be particularly effective or make a material contribution to the overall aim and so it is disproportionate to detain it. That argument would obviously be absurd. It is the overall effect of detaining all 100 ships which is important and the detention of each one of them obviously has a rational connection to the overall aim in view. The fact is that, in view of the circumstances in March 2022, most Russian ships had already been prohibited from entering UK ports. If, however, there had been other such ships such as the Phi, they would have been detained consistently with the objective of the detention of the Phi. This is also one important reason why the facts of this case are distinguishable from those of Bank Mellat. What troubled the majority of the Supreme Court in that case was that there were other Iranian banks which were not affected by the measure: see eg Lord Sumption JSC’s judgment at para 22. This is what the Judge said at para 85 of the judgment in the present case, and I agree with him.”
“… The future is a foreign country, as L P Hartley almost said. They do things differently there. Predicting the likely consequences of a step which the evidence suggests will be viewed in Iran as a hostile act, cannot be a purely analytical exercise. Nor can it turn simply on extrapolation from what did or did not happen in the past. There is a large element of educated impression involved. The decision calls for an experienced judgment of the climate of opinion in Iran, both inside and outside that country’s public institutions. … We have no experience and no material which could justify us in rejecting the Foreign Office assessment in favour of a more optimistic assessment of our own. To do so would not only usurp the proper function of the Secretary of State. It would be contrary to long established principle which this court has repeatedly and recently reaffirmed. It would step beyond the proper function of a court of review. And it would involve rejecting by far the strongest and best qualified evidence before us. In my opinion it would be a wholly inappropriate course for us to take.”
“The designation will also encourage Mr Shvidler to put pressure on Mr Abramovich to (i) encourage President Putin to cease, or limit, policies and actions that are destabilising Ukraine and undermining or threatening its territorial integrity; and/or (ii) distance himself from President Putin, thus isolating President Putin; and/or (iii) to speak out against the Russian invasion of Ukraine. For this reason and more broadly, the designation will amplify the incentives on Roman Abramovich and the impact of that designation.”
“114. Lord Anderson argues that the Defendant has a far more direct means of placing pressure on Mr Abramovich – that is, to designate him personally – and that he has done. If designating Mr Abramovich himself has not provided a significant enough incentive for him to do as the Defendant wishes, says Lord Anderson, it is hopeless to suggest that designating the Claimant would in some way cause him to do so. 115. I do not accept that that is so. As a matter of common experience, an individual may more readily act when it is at the request, or in the interests, of his friends and colleagues than when it is only in his own interests. In any event, the availability of a more direct means of putting pressure on Mr Abramovich does not undermine the value of additional pressure provided by the Claimant.”
“The Phi is being detained on the grounds that it is owned, controlled or operated by Sergei Georgievich Naumenko, a person connected with Russia.”
“These oligarchs, businesses and hired thugs are complicit in the murder of innocent civilians and it is right that they pay the price.”
“is or has been involved in— (i) destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine, or (ii) obtaining a benefit from or supporting the Government of Russia”
“The courts are the independent branch of government and the legislature and executive are, directly and indirectly respectively, the elected branches of government. Independence makes the courts more suited to deciding some kinds of questions and being elected makes the legislature or executive more suited to deciding others.”
“One can infer from these cases that, where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality.”
“If sanctions are to be effective, a serious price has to be paid by those who are within the definition of people to be designated under the 2019 Regulations. On the other side of the balance is Russia’s very serious violation of international law and the need to bring the invasion of Ukraine to an end.”