Secrecy for torture evidence – analysis

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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4 thoughts on “Secrecy for torture evidence – analysis

  1. I would hope that diplomatic sources (e.g. the many British Embassies etc) would be well aware of whether torture // ill-treatment of detainees / prisoners is occurring in a State where the UK has an Embassy. If that is not so, then we are in a dire situation. Furthermore, we should never be turning a blind eye to evidence pointing against reliance on a diplomatic assurance. Such assurances require continual monitoring as is proposed re Jordan in the Abu Qatada case.

    There is a tendency to talk of these “diplomatic assurances” as if they existed in vacuo whereas the UK enters them, presumably (hopefully), in the knowledge (via diplomatic channels) of what is occurring in that country.

    Apart from knowledge gleaned via diplomatic channels, what other checks could actually be carried out to try to ascertain the veracity of W’s evidence? i am not sure but none are coming to mind.

    Thus, it becomes a question of assessing W as evidence is given; questioning about W about experiences in Algeria etc. Once that is done, what weight is to be given to the evidence? The fact that the Sec.of State has not been able to check the evidence out is a further, and important, factor to be borne in mind.

    “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.”

    I agree with your concerns about this. The prevention of some major terrorist incident (e.g. a Madrid) must weigh heavily in the balance and the avoidance of a great evil has often, in this sometimes miserable world, been necessary even if, in the avoidance, smaller evils are committed. I think the Supreme Court gave this argument too little weight.

    Would it ” … have been more realistic to specify that SIAC should always have the discretion to reconsider the confidentiality of such an order, in such circumstances.” Perhaps, but W would not give evidence at all if it was thought that the order might be reviewable.

    Question of “getting even.” I think that the court inserted this because they realised the obvious attack which would be made on their decision which has the appearance, at least to the layman and media, of “getting even.”

    Play this card often? We shall have to wait and see. The temptation will be there but, in practice, I would see little point in putting up a witness who was highly unlikely to withstand examination before SIAC. The Supreme Court gave SIAC “pointers” to consider prior to making an order and maybe further considerations will arise since their list is not exhaustive. Much will depend on how SIAC rules on future cases.

    Also, it was interesting to note that the Supreme Court thought that this type of ex parte application would receive short(er) shrift in cases not involving Articles 2 or 3. Thus, in Art 8 cases, the decision would perhaps go the other way and no order binding the Secretary of State would be made.

    Could or would Parliament act to reverse this decision? It certainly “could” do so and then we might have a further challenge to that legislation on its way to Strasbourg. Will it do so? I feel sure that the government will be very unhappy with this situation and some form of review, if not down right reversal, will be forthcoming. The main reason for this will be the Secretary of State’s very argument that she might need to act to try to prevent a major incident somewhere. Suppose that she was unable to pass information on to (say) the USA that bombs were to go off in 20 US cities in the next few months and that the likely bomb-planters were XXX. It would be unthinkable that Britain would not share that with the USA. If we did not, what would they share with us?

    Food for thought in all of this … not an easy decision for the Supreme Court however and I was rather surprised not to see any dissent.

  2. While the “sauce for the gander” is clearly not appropriate here, there is a brutal irony in the symmetry of the situation. It might have been apposite, albeit not appropriate, to suggest that the Home Secretary ought to have been represented by a Special Advocate.

    However, it would be improper to allow the appellants to be deported in circumstances where there is arguable evidence that they may face torture if that evidence cannot be heard. It is wholly unconscionable to allow deportation in circumstances where that evidence cannot be heard because the Home Secretary may, at some point in the future, find it politically and diplomatically expedient to throw the witness under the bus for any reason. All the more so when the nation concerned—we might infer—is happy to practice torture on those it doesn’t have to covenant not to torture.

    The risk of having a reversible confidentiality is that it would require the courts to step into the role of assessing questions of national security and diplomacy. While we might well question the efficacy of recent executives at resolving these questions, I don’t find the suggestion that Court ought have crafted a solution which would usurp this power from the executive convincing.

    Quite aside from that, it does seem far-fetched that W’s testimony as regards to the conditions in Algerian prisons—and the treatment of prisoners deported pursuant to diplomatic assurances—would disclose information that might be used prevent a terrorist attack.

    Finally, at the risk of pedantry, I would query the suggestion that the Home Secretary truly represents the public interest. If indeed such a thing is knowable. I would argue that, at best, the Home Secretary is there to represent what she believes—having regard to her political proclivities—the public interest to be. At worst, she is there is represent her—and her party’s—interests.

  3. The Algerian Government has already breached the assurances it gave in respect of two Algerian Nationals departed in 2007 (see ‘Not the Way Forward – The UK’s Dangerous Reliance on Diplomatic Assurances’ – Human Rights Watch (Oct 2008)). Al Saadoon v United Kingdom (61498/08 sums up the attitude of the UK National Authority when, two men who faced the death penalty in Iraq petitioned the ECtHR, the court requested the UK Government to take no action to return the men until a full hearing of their case had been convened. The UK simply ignored the court and returned the men. The UK’s argument that they did not believe such a sentence would be carried out if the men was rightly rejected by the court. The UK is not remotely interested in the reality of such assurances as long as it is in receipt of an MOU which provides it with a tinsel of legality.

    One trusts officials of this country at one’s peril.

    Given the potential ramifications of returning individuals to face torture and death, it is right and proper that a court rather than an official determines what, if any weight is to be attached to the evidence of such witnesses. The courts of this country are the only effective defence an individual has against a state that at best pays lip-service to it obligations under UN Convention against Torture and at worst, actually colludes in it and now attempts to conceal evidence of it by extending the law relating to closed evidence in civil cases.

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