Closed evi, Art 6 and banks.

In Bank Mellat v Her Majesty's Treasury [2010] EWCA Civ 483 the Court of Appeal confirmed that the standard of disclosure required of Her Majesty's Treasury ('HMT') in relation to a direction made under the Financial Restrictions (Iran) Order 2009, made pursuant to Schedule 7 to the Counter Terrorism Act 2008 was the same as that set out in relation to control orders, in SSHD v AF (no 3) [2009] UKHL 28. 

Bank Mellat is one of Iran's largest commercial banks, with some 1800 branches.  In this case Bank Mellat is challenging the direction made in relation to it under section 63 of the 2008 Act. In its evidence HMT says it believes that the Bank "continues to engage in a pattern of conduct which supports and facilitates Iran's nuclear proliferation activities".  The Bank strongly denies all the allegations upon which the Direction is based.  The effect of the direction is said to be devastating on the Bank's business and it applied to the High Court to set aside the Direction.

Mitting J had to decide at a preliminary hearing whether Article 6(1) of the ECHR applied and if it did whether it followed from AF(No 3) that the HMT was obliged to afford the Bank sufficient disclosure to enable the Bank to give effective instructions about the essential allegations made against it.  Mitting J answered both these questions in the affirmative.

HMT appealed against a decision by Mitting J dated 24 February 2010 in which he applied the test in AF(no3) to this case.  HMT contended that it was too generous.  The Special Advocates in the case, Martin Chamberlain and Melanie Plimmer contended that it did not go far enough. 

Their Lordships agreed with Mitting J and in paragraph 6 confirm that "the Treasury's disclosure [needs] to be sufficient to enable the Bank to give sufficient instructions not merely to deny, but to actually refute (in so far as that was possible)" the essential allegations relied upon by HMT.

The substantive hearing is now listed for 24/25 May 2010.