Secrecy for torture evidence – analysis

8 March 2012 by Rosalind English

W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment

As we reported in our summary of the decision earlier, the Supreme Court has confirmed that the Special Immigration Appeals Commission (SIAC) has the power to order that certain witness evidence may be produced in conditions of absolute and irreversible secrecy.

A brief recapitulation: the appellants were resisting return to Algeria, a a country where torture has been systematically practised by the relevant authorities. The respondent secretary of state had obtained assurances from the Algerian Government that the appellants’ rights would be respected upon return, but, in appeals to the Commission, the appellants wished to adduce evidence from witnesses with inside knowledge of the position in Algeria that those assertions would not be honoured, and that torture and ill-treatment of the returnees was likely. The witnesses were not prepared to give evidence in the appeals unless their identity and evidence would remain forever confidential to the Commission and the parties to the appeal. The Court of Appeal held that despite the breadth of the Commission’s powers under Rule 39(1) of the SIAC (Procedure) Rules 2003, it was not open to it to give such guarantees. The Supreme Court overturned that ruling, declaring that  SIAC could give an absolute and irrevocable guarantee of total confidentiality to a witness who was prepared to testify that the deportee was likely to be subjected to torture or ill-treatment upon return despite contrary assurances from the authorities in the country of return.

Will this be open season for “abusive” applications – in other words, cynical efforts to resist deportations on the basis of evidence that cannot be tested and therefore rebutted by the Home Office? Is it a another shot across the bows – top appeal court in other words insists on its supremacy over the executive in matters relating to deportation, and diplomacy be damned?

Let us look at some of the scenarios in which the outcome of this appeal might play out.

Irreversibility – a step too far?

The prospective witness (W) may be, as Lord Brown posited, a whistleblower, working within the Algerian prison service, either as an official or an interrogator or even a medical practitioner. Or maybe as an outsider, a journalist perhaps, he may have obtained particular information as to the fate of those resisting deportation should they be returned. W’s evidence as to their fate, and his evidence as to his own risks, have to be accepted at face value because any attempt at verification would expose W’s identity. There would seem to be a strong argument in such circumstances that the irreversible confidentiality of W’s identity and evidence is a small price to pay for SIAC being able to consider crucial evidence about the risks those appellants before it face on return.

On the other hand, such an absolute and irreversible order, made on an ex parte application by someone resisting deportation, without the Secretary of State being able to check and oppose it, rests on a flimsy basis; the evidence in question has none of the weight that SIAC might have been able to attach to it if it had been verified by checks in the destination state.

And does the Supreme Court do justice to the Secretary of State’s fundamental objection to such an order, which, if made, would equip her with information which might in one way or another suggest the existence of a terrorist threat abroad or some other risk to national security, not even in the destination state but a third country, which has nothing to do with the quarrel at hand?  Because of SIAC’s order she would be unable to alert the foreign state to the risk, thereby gravely imperilling lives, as well as future diplomatic relations.

The Court of Appeal thought this would be a step too far; in July last year it ruled that it would be an “unworkable procedure” which amounted to seeking to injunct the government from discussing potentially important information with the government of a state with which the United Kingdom enjoyed friendly In diplomatic relations.

That Court did not accept the appellants’ argument that the effect on this country’s diplomatic relations would be no greater than in the situation where the appellant is unable to produce the evidence because of the absence of a cast-iron guarantee of non-disclosure.

It is not for want of jurisdiction that SIAC should never make an order of the sort here contended for; rather it is because, so the Secretary of State submits, such an order could never properly be made; it can never be appropriate. [my italics]

In the Supreme Court however this argument – that the Secretary of State is in a worse position with the information than without – is demoted to a case of diplomatic embarrassment. In Lord Brown’s opinion, in a scenario where a foreign country  is facing a terrorist treat, it must “surely be a substantial defence” to any diplomatic complaint by that country  that the Secretary of State was subject to a final and absolute court order prohibiting her from acting differently.

A defence that sounds in international law? A diplomatic defence? What kind of a defence does Lord Brown mean? How does the government explain itself in an even worse scenario, where the terrorist threat, of which it has become aware because of secret evidence in a deportation appeal, has been fulfilled?  The justification for withholding that kind of information looks a bit thin in the bloody aftermath of a massive attack on the scale, say, of the Madrid train bombings (pictured).

It might have been more realistic to specify that SIAC should always have the discretion to reconsider the confidentiality of such an order, in such circumstances. With the benefit of hindsight, the irrevocability condition may one day turn out to be an albatross round the Foreign Secretary’s neck.

Unreliable evidence

Apart from these diplomatic ramifications, which could turn nasty, there is the question of weight that a court should attach to unverified evidence.  Such an order seriously undermines the ability of the Home Department to challenge the substance of the appellants’ arguments against deportation. This would occur, for example, if the authorities in the destination state were able to provide information bearing on the issue of safety on return, but could not do so unless the identity of the witness and what they have to say are disclosed to them. Once the authorities know the identity of the witness and the substance of their evidence, the authorities might be able to demonstrate that what is said about the risk to the appellants on return to Algeria is false. As Lord Dyson comment, such an order

is a striking step for any court to take and is contrary to the instincts of any common lawyer. It is inimical to the fundamental principles which we rightly cherish of open justice and, above all, procedural fairness. To make an order without giving the Secretary of State an opportunity to be heard is a clear breach of the principles of natural justice. Any such order requires compelling justification.

Not a tit-for-tat

This is not a question of “getting even” with the SIAC system, which deprives counsel of the opportunity of taking instruction from their clients on sensitive evidence relating to intelligence information, divulged in closed proceedings only to a special advocate. The sauce for the gander argument has no applicability here. The appellant is there to protect his own interest. The Secretary of State’s position is to represent the public interest. As Lord Brown said, he did not see any scope for these orders, for “levelling the playing field” or “providing equality of arms” between the parties.

The role of the government’s representative in these proceedings is to search for and disclose material, both open and closed, which advance the public interest; such evidence may incidentally assist the appellant’s case.  The appellant is under no corresponding duty towards the Secretary of State.

That is why the ability to make such an irrevocable order may well be open to abuse and should therefore only be used as a last resort, and only if the ground on which an appellant is resisting deportation is an alleged risk of torture or death, not some lesser Convention right.  But the stakes are so high in this kind of litigation, it is unlikely that its participants will resist the temptation to play this card at any available opportunity. Watch this space.
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