Secrecy for torture evidence – analysis

8 March 2012 by

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 comments


  1. James Lawson says:

    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.

  2. Jim Nately says:

    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. ObiterJ says:

    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.

  4. Given the potential ramifications this is an appalling decision and the sooner it is reversed the better.

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Andrew Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers prison rules Prisons prison vote privacy privacy injunction privacy law through the front door private disputes Private life private nuisance private use procedural unfairness Procedure proceeds of crime Professional Discipline professional indemnity Professional life Property property rights proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill protective costs Protest protest camp protest rights Protocol 15 psychiatric hospitals psychology psychotherapy Public/Private public access publication public authorities public authority public bodies Public Bodies Bill public figure public funding public inquiries public inquiry public interest public interest environmental litigation public interest immunity public interest litigation publicity public law unfairness Public Order public powers public procurement Public Sector Equality Duty Public Services Ombudsman Putin putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Joint Committee of Primary Care Trusts & Anor [2012] EWCA Civ 472 R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 Race race relations Rachel Corrie racial discrimination Racial equality radio radiotherapy Radmacher Raed Salah Mahajna Raed Saleh Ramsgate randomised controlled trial rape rape case raptors Ratcliffe 6 Ratcliffe on Soar Ratcliffe power station rating rationality rcs RCW v A 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retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment wolves women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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