Taking stock after Abu Qatada: Assurances, secret detention and evidence in closed proceedings
24 June 2012
XX v Secretary of State for the Home Department  EWCA Civ 742 – Read judgment
The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department  EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.
XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.
The Court dismissed the appeal, albeit with some reservations about SIAC’s approach. Its judgment is particularly illuminating on the analysis of the risk of treatment contrary to the Convention, and on the situation in Ethiopia. This post, however, focuses on four aspects of the legal analysis contained in the Court of Appeal’s judgment.
1. Verification of Government Assurances
Having concluded that there was no real risk, on the facts, of XX being subjected to ill-treatment upon return to Ethiopia, SIAC considered the significance of the Memorandum of Understanding signed by the British and Ethiopian governments in 2008, which required each to comply with their human rights obligations in respect of deported persons and which made provision for an independent monitoring body. SIAC acknowledged that the relevant monitoring body was not independent from the government and only provided a “reasonable partial safeguard”, in that it would not challenge a deliberate breach by the government but would report unauthorised breaches by lower-raking officials. It was, nonetheless, satisfied:
“…that the assurances, if fulfilled, are such that XX will not be subject to treatment contrary to Article 3, that the assurances have been given in good faith, that there is a sound objective basis for believing that they will be fulfilled and that, by reason of the right guaranteed to XX by … the [MoU] to contact and receive visits from the [monitoring body]…the assurances are capable of being verified. (If he is detained and no contact occurs, it will be obvious that something has gone wrong.).”
The Court of Appeal upheld SIAC’s findings on the risk of XX facing Article 3 ill-treatment irrespective of the MoU. However, Lord Justice Richards, who gave the judgment of the Court of Appeal, expressed some reservations about the above paragraph:
“It is not so much the apparent inconsistency that troubles me – I think that the [above] paragraph must be read subject to the qualification expressed earlier about the [monitoring body] providing only a “partial safeguard” against breach of the MoU – as the question whether the assurances could reasonably be regarded as sufficient to protect against article 3 ill-treatment in circumstances where there were on the face of it no effective means of verifying compliance with them by the Government itself.”
XX’s representatives argued that it was clear from RB (Algeria) v Secretary of State for the Home Department  UKHL 10 and MS (Algeria) v Secretary of State for the Home Department  EWCA Civ 306 that effective verification was an essential condition that had to be satisfied before governmental assurances could be taken as a sufficient guarantee against ill-treatment. Lord Justice Richards acknowledged that this, if correct, would make SIAC’s acceptance of the MoU seriously problematic, but went on to add that:
“It is strongly arguable, however, that neither RB (Algeria) nor MS (Algeria) constitutes binding authority on the point…Further, the Strasbourg court has not said that verification is an “essential ingredient” but has listed it as one of a number of factors to which regard will be had. Thus, in Othman (Abu Qatada) v United Kingdom, at para , the court said that its usual approach is “to assess first, the quality of assurances given and, second, whether, in light of the receiving State’s practices they can be relied upon”, and that in so doing the court will have regard inter alia to a number of factors, including “(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers”.”
In light of that, his lordship concluded that the way SIAC dealt with the issue of “effective verification” might be sustainable on the approach in the Othman (Abu Qatada) judgment, but confessed to:
“a degree of unease about reliance on assurances when there is an apparent gap in the means of verification of compliance and SIAC have to rely, as they appear to have done in their concluding paragraph, on the proposition that “[i]f he is detained and no contact occurs, it will be obvious that something has gone wrong” and more generally on their finding that it was, and would be perceived by the Government of Ethiopia to be, in the interests of that Government to ensure that the assurances were fulfilled.”
2. On the “flagrant denial of justice” test in Article 6
Lord Justice Richards had similar reservations about SIAC’s approach to the compatibility of the justice system in Ethiopia with Article 6 of the Convention.
Having found that there was no real risk of XX being subjected to a trial process in detention, SIAC went on to accept that there were “very serious shortcomings in the Ethiopian criminal justice system” and posed the question whether it would be a breach of Articles 5 and 6 if contrary to its view, there was a real risk that XX would be exposed to trial in a justice system with such shortcomings. It answered the question as follows:
“…The jurisprudence is tentative and obscure…Our view, for what it is worth, is that the United Kingdom would not be in breach of those obligations if it were to deport him to face a trial in those circumstances unless the evidential foundation for his prosecution and conviction was a confession procured by torture or ill-treatment of such severity as would amount to a breach of Article 3 in a Convention state.”
Given its other findings, the Court of Appeal again did not need to address this aspect of SIAC’s decision. However, Lord Justice Richards observed that the deficiencies in the Ethiopian trial process, on the evidence before SIAC, came closer to meeting the “flagrant denial of justice” test, and therefore a breach of Article 6, than SIAC’s judgment acknowledged. This he concluded, having noted the ‘very high’ threshold that had to be met to establish a breach, as emphasised in the following passage in Othman (Abu Qatada) v United Kingdom (para 260):
“It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact…serves to underline the Court’s view that ‘flagrant denial of justice’ is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.”
3. Evidence of conditions in secret detention
XX argued that in assessing the risks that he would face on return to Ethiopia, SIAC was not entitled to take into account any evidence adverse to his case, where that evidence was obtained from unofficial detention centres housing individuals held in incommunicado arbitrary detention, in particular if such evidence was obtained by the attendance of UK Security Services officers at such centres. The argument had been rejected by SIAC.
On appeal, the first step in XX’s argument was that there was an internationally acknowledged principle amounting to a peremptory norm of general international law or jus cogens prohibiting secret detention – the term being used as shorthand for prolonged, arbitrary, unacknowledged and incommunicado detention at an unofficial detention centre.
Lord Justice Richards stated that if there was a peremptory norm prohibiting secret detention, it had not yet been definitely recognised. He added, however, that the Court did not need to decide the issue and was therefore prepared, for the purpose of the argument, to assume that the prohibition of secret detention had achieved the status of such a norm.
The second limb of XX’s argument went along the following lines: the UK had a duty not to condone secret detention and that the attendance of Security Service officers at secret detention centres was contrary to that duty. For the Court to allow the executive to adduce, against the interests of an individual, evidence obtained by such attendance would be to encourage the unlawful conduct and to allow advantage to be taken of it. The court should exercise its jurisdiction to exclude such evidence as an abuse of process.
Reliance was placed by XX on two House of Lords authorities, namely A and Others v Secretary of State for the Home Department (No.2)  UKHL 71 and R v Horseferry Road Magistrates Court, ex p. Bennett  1 AC 42, concerning the exclusion of evidence to prevent an abuse of process. The case was likened in particular to A (No. 2), where the House of Lords held that evidence obtained by torture could not lawfully be admitted against a party.
Lord Justice Richards concluded that if the case was concerned with evidence obtained as a result of secret detention, he could see a degree of force in XX’s argument:
“There would be some parallel then with “the fruits of torture” with which A (No. 2) was concerned. Even then the argument for exclusion would not be as strong as in relation to torture: there is, for example, no equivalent to Article 15 of the Torture Convention in relation to secret detention. The contention that the same principles as for torture apply to evidence obtained by any form of inhuman or degrading treatment was expressly rejected in A (No. 2) itself…The point was left open by the Strasbourg Court in Othman (Abu Qatada)…
The present case, however, is not about the fruits of detention. The evidence that the appellant seeks to exclude is evidence about the conditions experienced during detention and in particular about the nature of the treatment received by detainees… The argument for exclusion of such evidence is in my view relatively weak, even if attendance at the detention facility did amount to a serious breach of international law (and, indeed, even if it amounted to criminal conduct). The situation is in no way comparable to that which was found in Bennett to be capable of amounting to an abuse of process. It would not threaten basic human rights, be an affront to the rule of law or compromise the integrity of the judicial process for such evidence to be given. It would not cause public confidence in the legal system to be undermined.
On the contrary, public confidence would be liable to be undermined by the one-sided exclusionary rule for which [XX] contends, whereby evidence concerning the treatment of detainees at secret detention facilities could be given by the detainees themselves but not by Security Service officers who spoke to or observed them there, save to the extent that the evidence of those officers was favourable to the appellant…”
His lordship went on to observe that there was no general rule against the admissibility of evidence obtained by unlawful means and that “[t]he international legal obligations of the State in relation to conduct in breach of a peremptory norm would not of themselves be a sufficient reason for holding it to be an abuse of the process of the court for such evidence to be given.” Thus, even assuming that there was such a norm prohibiting secret detention, his lordship did not consider it justified to exclude evidence of the kind in question.
Fresh evidence in closed material
In the context of an application to deploy fresh evidence in the appeal, the special advocate for XX raised an important issue concerning the use of fresh evidence which is contained in closed material: it could not be deployed in support of a fresh claim as the special advocates would be unable to alert the appellant to the existence of the material or to make fresh claim representations on his behalf; nor is there any procedure for the deployment of such material in a judicial review challenge to the Secretary of State’s refusal to treat representations as a fresh claim. Whilst the Secretary of State has a continuing duty to ensure compatibility of a removal with the Convention and for that purpose to consider any relevant closed material of which she is aware, it was argued that this would not be an adequate substitute for judicial evaluation of such material.
The special advocate proposed that the Court should extend the principle in E and R v Secretary of State for the Home Department  QB 1044 (where it was held that a mistake of fact can sometimes form the basis of an appeal on a point of law) to enable the deployment of fresh evidence on an appeal from SIAC in circumstances where it might not otherwise be possible to deploy it at all.
Lord Justice Richards acknowledged that the concern was a real one, but rejected the proposed solution as a subversion of the legislative intention that appeals be limited to points of law. His lordship added that:
“There is little that this court can sensibly do in relation to fresh closed material. If, in the course of an appeal, the court’s attention is drawn to the existence of closed material that would be capable of founding a fresh claim, there can be no objection to its stating that bare fact in its open judgment, thereby alerting the appellant to the possibility of a fresh claim. Subject to that, however, it seems to me that the matter has to be left to the Secretary of State in the discharge of her obligations to act compatibly with the ECHR.”
The Court’s observations in this judgment on the issue of ‘effective verification’ of Government assurances were tentative and guarded. This, as is clear from the judgment, was reflective of Strasbourg’s decision in Abu Qatada, which as Lord Justice Richards remarked, may sustain the somewhat unquestioning approach taken by SIAC to the Ethiopian Government’s stated intentions. That said, the court’s comments should be seen firstly, as part of the continuing discourse over the proper extent of – and requisite conditions for – reliance on government assurances in deportation cases, and secondly, as a warning against over-reliance on them.
This author has a similar reading for the Court’s observations on the ‘flagrant denial of justice’ test. Again, the observations were made with express regard to the legal position set out in Abu Qatada, and discouraging of an overly conservative approach, as a result, to the test in Article 6.
In these respects, the judgment may be seen as a cautious domestic interpretation of Abu Qatada v UK.
The other two issues addressed in the judgment and discussed above are of wider significance to the conduct of asylum and removal proceedings. Interestingly, whilst strongly rejecting the case for the inadmissibility of evidence regarding the conditions of secret detention, the Court left open the possibility that evidence obtained as a result of secret detention may be excluded under the Court’s abuse of process jurisdiction. Practitioners in the area will also, no doubt, take note of the Court’s suggestion that where relevant fresh evidence comes to light in closed proceedings, the claimant’s position could be protected by the Court referring to the existence of the new evidence in its open judgment.
All in all, an interesting addition to the domestic case law on deportations, and an instructive statement, from the Court of Appeal, of the post-Abu Qatada position on the legal issues arising in the case.
Sign up to free human rights updates by email, Facebook, Twitter or RSS