What happened to open justice? Further analysis on torture evidence secrecy decision
9 March 2012
In W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department  UKSC 8 – read judgment
The Supreme Court has made a difficult decision. It is sometimes said that hard cases make bad law: this ruling may prove to be a good example of that cliché. The court was not being asked whether the Special Immigration Appeals Committee (SIAC) was legally allowed to issue orders that means evidence “will forever remain confidential” but rather the question was, “can SIAC ever properly make an absolute and irreversible order.”
The principles of open justice would tend towards the answer being no – but the court prioritised the welfare of the witness and allowed the order.
The SIAC was established in 1997 in order to enable secret hearings to take place: these “closed material proceedings” used special advocates so that evidence that the Home Secretary wanted to use without showing it to the person they wanted to deport (for public safety reasons) could be presented to the tribunal.
This is not about the use of secret evidence on the part of the Home Secretary, but on the part of the person they want to deport. Although the Court was eager to say that this was not part of their reasoning, this case balances the system. However, restoring balance by increasing the amount of secret justice is not necessarily a good thing, which is presumably why the court explicitly distanced itself from that reasoning.
If it is bad practice for the government to use secret evidence then allowing immigrants to do so does not make the system more fair, but less fair: two people being secretive doesn’t make a more honest system. Larkin observed that having children means addition to your family, but that might not be increase of yourself – rather it is dilution. Spurious reasoning when it comes to procreation, but not when it comes to honesty. Adding secrecy to a partially secret system does not increase fairness, but further dilutes it.
However, this is in practical terms a thorny issue – and there is no hog stuck in the thicket, no fortuitous easy answer lurking somewhere. The court had to make a difficult choice, what Lord Brown called, “the most unpalatable of choices.”
If someone is being taken to the SIAC as a suspected terrorist, and he is to be deported to Algeria, he will want to adduce evidence from a witness who can verify the practice of torture in Algeria. This evidence, in this case, was to the effect that the appellant would be tortured despite the fact that the Algerian government had given an undertaking not to torture him.
This is evidence that the Home Secretary will want to test. Perhaps it will be tested by showing it to the Algerian authorities. Perhaps by cross examination. But if it is made public the witness will be at a great risk. And so he will only give evidence on the basis that an order will be given by the SIAC to the effect that the evidence and his identity “will forever remain confidential.”
On the surface this seems reasonable: people should be able to give evidence without being afraid for their well being at the hands of foreign governments. But an “absolute and irreversible guarantee of total confidentiality” is an extreme step, and has political and moral connotations.
The Home Secretary may find herself in possession of information about a terrorist threat abroad. She would be unable to share that information with the foreign government. This presents a moral dilemma: should the Home Secretary be prevented from warning a country that it is at risk of a terrorist attack in order to protect a witness at a deportation trial?
The decision was taken on the basis of Article 3, which is given prominence among the rights guaranteed in the ECHR. The decision said that had it been another of the articles (other than articles 2 or 3) the result would have been different. But the question still remains: should we prevent the torture of one man, if that means we cannot then warn a country about the potential death and injury of hundreds?
This is not a question to which an easy answer exists. But the reasoning of the Supreme Court is that, “the Secretary of State’s concerns at learning more than she is permitted to divulge [is] an insufficient ground on which to deny … the possible benefits of [the] evidence.”
The court said that it would be no more than a “diplomatic emabrrasment” and would be resolvable by the Home Secretary explaining she was subject to a court order. But as Rosalind English said in her excellent analysis of this case:
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.
The court failed to answer this moral conundrum.
Nor did the court answer the question about whether it is legitimate for the court to make a decision that has such a large effect on diplomatic relationships between governments.
And the reasoning about the “possible benefits” of the evidence is in itself unsatisfactory. Lord Brown himself recognises that these “possible benefits” are not all they appear to be – this is only three paragraphs later:
There is, of course, the risk that the very availability of such orders may be exploited by the unscrupulous in the hope that SIAC may thereby be induced to receive untruthful evidence which, had it in the ordinary way been subject to full investigation, would have been exposed as such.
For the sake of evidence whose veracity cannot be verified our Supreme Court has glossed over important questions of the appropriateness of their involvement in diplomatic political decisions and moral decisions that ought properly to be made by people accountable in an election.While the language of the court recognises the seriousness of the decision, the reasoning suggests that it was, perhaps, treated more glibly than it should have been.
Principles of justice
It is precisely because of the problems outlined above that we have principles of justice. Lord Brown says this decision comes “perilously close to offending against principles of open justice”. And Lord Dyson said it was “contrary to the instincts of any common lawyer”.
He went on to say:
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.
These principles are there to ensure that hard cases don’t make bad law: that happens when the principles are departed from.
Lord Brown said that there “could hardly be a more important issue in those proceedings than that of A’s safety on return. It is that consideration, indeed, which weighs so very heavily in A’s favour in justifying the making of these proposed orders in the first place.” And the prohibition on torture must always be upheld.
But no one in the court offered a dissenting opinion. The two leading judgements are highly cautious, both expressing doubts, but none of the most senior judges in the land was able to make a bold minority speech defending the bedrock principle of justice. It is as if the government wanted to abolish the presumption of innocence in certain criminal trials and the Supreme Court merely reluctantly agreed.
When the House of Lords gave the Home Secretary permission to arrest and detain people indefinitely during World War II (Liversidge v Anderson  UKHL 1) Lord Atkin gave a powerful dissenting speech: “In this county, amid the clash of arms, the law is not silent.” He did not allow that the court had the power to read things into statutes, and thereby give power to the government to detain people. That dissent has been seen as the judgement that ought to have been given by later generations of liberal judges seeking to hedge powerful governments. It is regrettable that such an opinion was not offered in this case.
This guest post is by Henry Oliver who works at Mulberry Finch and writes for the Mulberry Finch Blog.
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