Coalition Against Secret Evidence

October 2010
XX

In the first appeal against a deportation to Ethiopia on national security grounds heard at the  Special Immigration Appeals Commission (SIAC), Justice Mitting rejected this appeal in early September. The case concerns a 32-year old Ethiopian national who has lived in the UK since he was a teenager but whom the government deems to pose a threat to national security and accuses of having links to terrorist organisations. XX did not challenge the national security case against him. The appeal, which was heard in April and July, was largely brought on grounds of the XX’s  safety on return to Ethiopia and the risk of torture he may face there.   In late 2008, Britain and Ethiopia signed a Memorandum of Understanding (MoU) providing assurances for the safety of “terrorism suspects” returned to Ethiopia. Hearing submissions from various sources, including Human Rights Watch, the court held that the Ethiopia was a safe enough for XX to be returned and Etiopian government assurances could be relied on.  Lawyers for XX are currently seeking to appeal this decision by SIAC at the Court of Appeal.

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July 2010
Z, G, BB, U, Y, VV, PP, W

On 29 July, judgment was handed down in the case of W (and others) and the Secretary of State for the Home Department (2010) which was heard by the Court of Appeal last month; the appellants sought greater levels of procedural fairness and the ability to protect their own witnesses at SIAC: http://www.bailii.org/ew/cases/EWCA/Civ/2010/898.html
While the court admitted that the process “goes against the basic concept of a fair trial”, such rights can be and are limited by Parliament, as is the case here through the SIAC Act 1997 and the Rules of Procedures. All the appeals were dismissed. The men now have two weeks to appeal to the Supreme Court.

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February 2010
XC, U

A new bail application was made for U after the 1 December judicial review ruling that bail could not be revoked or withheld from SIAC appellants on the basis of secret evidence. However, following a hearing on 7 December, this was again denied on the basis that he is deemed to pose a threat to national security. Rather than choosing to disclose the secret evidence in this case, the court decided instead to consider whether or not a new test needs to be applied for bail, working around the secret evidence involved. The grounds for this decision to revoke bail again were not disclosed at the hearing and were instead provided in a written judgment: http://www.siac.tribunals.gov.uk/outcomes2007onwards.htm. U has however been granted permission to judicially review whether SIAC has acted lawfully in changing the test for bail to get around the disclosure of secret evidence. This case will be heard at the High Court in London on 11 March.

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Abid Naseer, Ahmed Khan

A bail hearing for Abid Naseer and Ahmed Khan, the two remaining Pakistani students from the “northwest 10” group, arrested for planning an alleged “terror” plot last spring was held later on 5 February. At this hearing, bail was granted to Ahmed Khan but withheld again from Abid Naseer, who is the alleged “mastermind” behind the plot. A large part of his hearing was held in closed session which his solicitors were not allowed to attend.

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December 2009
XC, U

On 1 December 2009 the High Court made a judgement concerning the lawfulness of SIAC (Special Immigration Appeals Commission) denying or revoking the bail of prisoners without disclosing the evidence relied on to reach such a decision.

The case involved  XC, a Pakistani student arrested earlier in 2009  (he had been denied bail at two separate hearings) and an Algerian national, U, who in February 2009 lost  his House of Lords appeal against deportation to Algeria.

Judges in the case, Laws and Owen, held firstly that SIAC judgments could be subject to judicial review and then went on to review whether the decision to deny/revoke bail in these cases was consistent with Article 5(4) of the European Convention on Human Rights (ECHR), concerning the right to have the lawfulness of detention decided by a court, which is closely tied to Article 6(1), concerning the right to a fair and public hearing.

Referring to the ECtHR’s judgment concerning the Belmarsh prisoners earlier in 2009, and the House of Lords ruling on control orders in the summer of 2009, the judges held that the claimants (XC and U) were entitled to be provided with sufficient evidence of the reasons for bail being revoked/refused in order to be guaranteed a fair hearing and that the same procedural standard applies to immigration bail hearings (at SIAC) as it does in control order hearings.

Lawyers for the government had argued that a different standard applied in these cases and that the two abovementioned cases did not apply here. They also argued that under the law that created SIAC, its decisions could not be reviewed.

The Home Secretary has criticised the judgment but the judges did not grant him leave to appeal. Further to this judgment, the order revoking U’s bail is now quashed and he should be released under the previous stringent bail. If  Home Office wishes to revoke bail for these individuals again, it will have to apply to SIAC once more and provide reasons.

The outcome of this judgment is good news for other prisoners in a similar situation who have also been denied bail or had it revoked without any disclosure of the reasons. It is also an example where English judges have upheld the judgment in the ECtHR’s judgment of 19 February 2009 requiring that more disclosure must be given in cases to ensure that hearings are fair and impartial.

The case of a third claimant in this case was dismissed.

The judgment can be viewed at: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3052.html where from paragraph 101 onwards the issue of secret evidence is covered.

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Z, G, BB, U, Y, VV, PP, W

On 27 November, in the Court of Appeal, eight individuals (7 Algerians – Z, G, BB, U, Y, PP, W – and 1 Jordanian – VV) won parts of an appeal they brought against SIAC decisions made against them. As a consequence, they have been given leave to appeal on the points below. Their hearing, held on 19 October, could only be heard once various other cases the men were involved in, particularly at SIAC, had been decided on.

The two points which are of considerable importance concern:

• “reverse closed evidence” – whereby if one of the appellants (the men involved in this case, as SIAC is an appeals court) wishes to produce secret evidence in his own case, such as by bringing a witness before SIAC, and seeks to have the same protection as that afforded to the Home Secretary, such as through the use of special advocates and evidence which is not disclosed to the other side, i.e. so that the Home Office could be excluded from knowing the secret evidence in the case. Five of the appellants were given leave to appeal on this point; SIAC itself had earlier ruled that it did not have the power to allow the use of such evidence.

• minimum of procedural fairness which applies to national security deportation cases, with regard to the use of secret evidence – Article 6 of the ECHR (fair trials) does not apply to SIAC proceedings, however following the judgments in the European Court of Human Rights (ECtHR)’s case on the Belmarsh prisoners in February this year and the House of Lords’ control orders case this summer, Judge Kay granted leave to appeal to consider whether domestic procedures in England and Wales would require the imposition of a minimum of procedural fairness in these cases.

The other grounds for appeal were rejected as they had been settled in other decisions and the judge sought that the appeal on the two above grounds be expedited. These appeals are likely to take place next year.

The judgment can be viewed at: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1287.html