The right to know the case against you

14 March 2011 by Alasdair Henderson

R (BB) v. Special Immigration Appeals Commission and Home Secretary – Read judgment.

The Divisional Court has ruled that bail proceedings before the Special Immigration Appeals Commission (“SIAC”) are subject to the same procedural standard under Article 5(4) of the European Convention (the right to liberty) whether they take place before or after the substantive judgment. That standard is that the applicant must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations, as set out in A v United Kingdom and R (Cart) v. SIAC.

This decision forms the latest in a string of cases considering the extent to which the Government can rely on secret or ‘closed’ evidence in defending appeals by individuals challenging decisions made against them. A judgment by the Supreme Court is imminently expected in the conjoined cases of Al-Rawi v. Security Service and Tariq v. Home Office (see helpful summary here and our analysis of the broader issue of open justice here), which consider this issue in relation to civil damages claims and employment law claims. However, BB is the High Court’s most recent pronouncement on the position in the fraught area of immigration and national security.

Procedural Background

The case is set against the backdrop of a complicated set of appeals and judicial reviews. A short summary is as follows. The Claimant, BB, is an Algerian national who arrived in the United Kingdom in 1995. In 1999 he claimed asylum, but in September 2005 he was arrested, his asylum claim was refused and he was served with a decision to deport him on grounds of national security. He appealed to SIAC against the deportation decision. SIAC initially decided in 2006 that he was a danger to national security and should be deported, but it did so entirely on the basis of closed evidence. On appeal, the Court of Appeal held that SIAC could in principle use closed material, but remitted the case on the basis that the entire judgment was closed. The House of Lords upheld the Court of Appeal’s decision.

SIAC reheard BB’s appeal and dismissed it again, but this time opened part of its judgment on why it held BB to be a national security risk. This decision was again appealed, but was dismissed by the Court of Appeal. BB has appealed again to the Supreme Court and lodge an application with the European Court of Human Rights.

Given this long procedural history and there being no end to the litigation in sight, BB’s bail position is of some importance to him. He was detained from September 2005 until April 2008, then released with a 20-hour curfew. In November 2008 the curfew was reduced to 18 hours . It was slightly relaxed again in June 2009 (but not as much as BB had applied for).

In March 2009 the Home Secretary had applied to revoke BB’s bail, along with that of another person (“U”), on the basis that the House of Lords judgment led to an increased risk of absconding. The application was refused in respect of BB but granted in respect of U. U promptly sought judicial review and the Divisional Court held (Cart) that bail decisions by SIAC were amenable to judicial review and that they could not be based entirely on closed evidence.

BB also applied for judicial review of his bail decision from June 2009 and the application was stayed pending the decision in Cart. That was the claim being considered by the Divisional Court in this case.

The Issue

It is clear from the decisions of the ECtHR Grand Chamber in A v.United Kingdom and the House of Lords in AF (No. 3) v. SSHD that while Article 5(4) does not preclude the use of closed evidence in SIAC appeals, there is a ‘bottom line’ or ‘core irreducible minimum’ of fair trial guarantees. This core irreducible minimum is that the detainee must be provided with sufficient information about the allegations against him to enable him to give effective instructions to his representatives (including the government-appointed ‘special advocate’). The result is that any ruling by SIAC to uphold a deportation order or continue detention that is based solely or to a decisive degree on closed evidence would not satisfy Article 5(4). The subsequent decision in Cart made it clear that the same principle applies to decisions on bail as well as to substantive decisions.

It might be thought that this left little room for doubt about the use of closed material in SIAC proceedings (as indeed Richards LJ noted at paragraph 26) but there was still an unresolved issue in BB. SIAC had considered that in bail proceedings post-dating its substantive decision on deportation it was entitled to rely on the findings in the substantive decision, notwithstanding that those findings were based largely on closed evidence which BB had not been able to challenge. The question was whether it was able to do so.

BB argued that SIAC clearly could not do this – the core irreducible minimum required by Article 5(4) could not be avoided by carving out a narrow exception where there had already been a substantive judgment.

The Home Secretary argued that since the substantive judgment was the final decision of a court of competent jurisdiction it could not be right for the issue of bail to be used as a back-door means of undermining findings properly made in the substantive appeal. It was also submitted that it was very difficult, if not impossible, to determine whether the substantive appeal proceedings would have complied with Article 6 or Article 5(4) after the event, and near-impossible to determine how much of the closed evidence had been relied upon in reaching the conclusion.

Finally, the Home Secretary suggested that it might disadvantage bail applicants if SIAC were unable to take into account its closed findings, since a large part of these would be assessing risk and if they could not be considered SIAC was more likely to decide that applicants should be kept in detention.

The Divisional Court’s Ruling

Richards LJ and Sweeney J rejected the Home Secretary’s arguments and found that the Article 5(4) procedural standard laid down in A v. United Kingdom and held in Cart to apply to bail proceedings clearly applied equally in a bail application where SIAC had already given judgment in the substantive case. Richards LJ explained:

The article 5(4) requirement that a person must be given sufficient information about the allegations against him to enable him to give effective instructions has been described as the “bottom line, or the core irreducible minimum”…There can be no justification for dropping below that minimum standard in a case concerning detention, at whatever stage of the proceedings the issue of detention may arise.

…As a matter of principle, it cannot be right for reliance to be placed in bail proceedings on a judgment or findings arrived at through a procedure that did not comply or cannot be down to have complied with a minimum standard applicable to the bail proceedings. Mr Southey [for BB] gave the analogy of reliance in criminal proceedings on a judgment reached in civil proceedings where a different standard of proof applies.

The Divisional Court also roundly rejected the Home Secretary’s practicality argument, holding that “if the application of the minimum standard gives rise to practical difficulties, that is not a valid reason for lowering the standard. The difficulties will simply have to be coped with as best they can”.

An emphatic restatement

This was an emphatic restatement of the basic minimum fair trial rights required under the ECHR, even in national security cases where closed evidence is crucial. It does not add anything new, but does make it clear that there are no exceptions. It will be very interesting to see how the Supreme Court has dealt with the issue of closed evidence more broadly in Al-Rawi; will it take the same strict approach when the liberty of the person is not at stake?

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