CA-2025-001983 - [2025] EWCA Civ 1311

Sir James Eadie KC, who dealt with this issue on behalf of the Secretary of State, accepted that the Administrative Court had jurisdiction to hear a claim for judicial review of a decision or order adding an organisation to the list of proscribed organisations in Schedule 2 to the Act. He submitted that judicial review was a remedy of last resort and permission to apply for judicial review would not be granted where a claimant had an adequate alternative remedy, relying on a series of decisions including most relevantly R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR; R (Watch Tower Bible & Tract Society of Britain) v Charity Commissioners [2016] EWCA Civ 154;[2016] 1 WLR 2625; R (Glencore Energy UK Ltd) v HMRC [2017] EWCA Civ 1716; [2017] 4 WLR 213 and Re McAleenon’s Application for Judicial Review [2024] UKSC 31; [2024] 3 WLR 803.

Sir James submitted that where Parliament had provided a particular statutory procedure to deal with certain categories of cases, that procedure and not judicial review should generally be used. There would need to be exceptional circumstances justifying the use of judicial review rather than the procedure prescribed by Parliament. Sir James submitted that the process of making an application to the Secretary of State to deproscribe an organisation with a right of appeal to POAC was intended by Parliament to be the means of challenging the continuing proscription of an organisation on the list of proscribed organisations. Parliament intended the matter to be considered first by the Secretary of State and then, if necessary, by way of appeal to POAC. That was a carefully constructed and calibrated scheme. The scheme recognised the role of the Secretary of State. It provided for an appeal to a specialist and expert body in the form of POAC, which could consider a wider range of closed material than the Administrative Court could. It recognised the role of Parliament as each House of Parliament had to approve a draft order before an order could be made. POAC could consider all the matters which were the subject of challenge, whether they raised matters of public law or compliance with section 6 of the HRA and Convention rights.

Sir James submitted that the fact that proceedings for judicial review may be quicker than an application to deproscribe, with a right of appeal, was a feature of the legislative scheme and did not justify departing from it. In terms of detriment, it was correct that criminal convictions could only be the subject of appeal in respect of activity occurring on or after the date of the refusal of the application to deproscribe. That, however, was a feature of the legislative scheme. Parliament had provided that persons who engaged in certain activities after an organisation had been proscribed (and before a refusal to deproscribe) should be guilty of criminal offences even if the organisation was subsequently deproscribed.

Mr Husain KC, who dealt with this issue for Ms Ammori, submitted that the Judge was correct to conclude that an application to deproscribe, coupled with a right of appeal to POAC, was not a convenient and effective means of challenging an initial decision to proscribe an organisation. He submitted that the statutory process was not adequate to ensure respect for the rule of law, relying on observations in R (Cart) v Upper Tribunal (Public Law Project intervening) [2011] UKSC 28; [2012] 1 AC 663.