Coalition Against Secret Evidence

Special Immigration Appeals Commisson (SIAC), 16-17 June, 2010

Hearing for Algerian’s W, Z, G, BB, U, Y PP and Jordanian VV

Complied by Aisha Maniar

In November 2009  the Court of Appeal granted seven Algerian and a Jordanian SIAC appellants leave to appeal against the Home Secretary on two points of law concerning decisions made against them at SIAC – to consider whether under domestic law:

• A minimum of procedural fairness could be imposed in SIAC cases, with respect to the use of secret evidence, particularly in the light of several rulings last year

• whether appellants can rely on “reversed closed evidence”¹, whereby the Home Secretary’s representatives are excluded from the proceedings when some evidence is given by witnesses for the appellant.²

Not all of the appellants brought appeals on both points.

If  successful in their appeal on the first point, and a minimum of procedural fairness is found to be required (i.e. a minimum amount of disclosure of “closed evidence” has to be made to meet the requirements of a fair trial), this could lead to the cases of all the men involved and various other SIAC appellants, having their cases reheard at that court, to allow this minimum disclosure to be made.

The appeal was heard by Lord Justices Jacob and Sullivan and Sir David Keene. Representing the appellants were Patrick O’Connor QC for VV and Michael Fordham QC for the Algerian appellants. The Secretary of State for the Home Department (Home Office) was represented by Robin Tam QC. Several appellants attended the hearing as did around a dozen supporters of the men on both days.

As Article 6 of the Human Rights Act 1998  – the right to a fair trial – does not apply to SIAC proceedings, considerations of a minimum of procedural fairness in the common law standard of fairness (i.e. that established through previous court cases) were made, particularly in cases where there is a risk to national security. SIAC hears cases relating to appeals by individuals facing deportation on national security grounds and bail applications when they are imprisoned pending said deportation, thus the use of closed materials in both instances was considered – the risk to national security and safety on return. In the case of control orders, it was argued that while Article 6 applies to the conditions of the control order, it does not apply to whether the controlee poses a risk to national security, allowing the Home Secretary to release controlees on strict bail conditions without releasing the closed evidence. It was also argued that the common law right to a fair trial can only be restricted by statute in limited circumstances and thus is it the intent of the SIAC Act 1997 to restrict this right? In this respect, consideration was given to the SIAC rules (2003). It was argued that nothing in the 1997 Act or the rules prevent disclosure of evidence or confer a power to refuse disclosure of the essence of a case.

Counsel for the Home Office argued that some information about their case is provided to all appellants. However, when asked by the judges if the level of information given by SIAC is sufficient for the appellant to give instructions, he replied probably not, although he could probably get an answer to that in closed proceedings. He also argued that the use of special advocates provides some level of protection for appellants. A point picked up by Lord Hope in RB and Another v Secretary of State for the Home Department (2009) was that where sensitive materials are involved, there needs to be some departure from the normal standards. Comparing it to cases in which a public interest immunity (PII) certificate is sought, where national security is found to outweigh public interest, one or the other side will be prejudiced by this, but it is “not obviously unfair or unworkable”. Mr. Tam QC stated that full disclosure is given at SIAC but that it is limited with respect to what the other party can know. The Home Secretary always seeks to produce a balanced case from the outset, including exculpatory evidence which undermines her case. In response to these arguments, one of the judges commented that although efforts have been undertaken to make it fairer, [the methods are] still used as a stick to beat people with and do not come up to European levels of fairness. Mr. Tam QC continued, quoting again from the RB judgment, which was heavily relied upon in his arguments, that SIAC feels that the procedure is adequately fair. However, the judges contended this, stating that there was general acceptance, “even from the JCHR [Parliamentary Joint Committee on Human Rights] that the scheme is not fair”. Mr. Tam QC stated that “SIAC is a boiling pot looking after important public interests” and went on to say “it is a balancing act, not an ordinary tribunal”.

While the judges conceded that there were efforts to mitigate the unfairness of procedures at SIAC, there was still considerable underlying unfairness involved. As several appellants -Y, BB and U – had decided not to challenge the national security risk assessment made against them on the basis of evidence they are not allowed to see, it was also argued that this part of the case cannot apply to them.  However, the judges stated that the appellants had said that they had waived the right to contest it as they were unlikely to get a fair trial but had been encouraged by the decisions in  other cases which gave them more hope.

The argument was also put forward that the  minimum level of evidence that must be disclosed may differ when considering safety on return. An argument unique to safety on return cases is that the appellant already has knowledge of the facts that may affect his safety if returned to his country of origin. One of the judges remarked that he did not think that appellants had sufficient information about safety on return. Secret evidence shared by the government and the country of origin may be essential to such cases.

Concerning the issue of legality, Mr. O’Connor QC for VV stated that there was an abuse of process due to the lack of procedural safeguards for fairness. If SIAC is allowed to admit evidence that cannot be admitted usually, expressed in broad terms, that could include evidence obtained through torture. While there is no harm in incomplete disclosure unto itself, where closed evidence is relied on, particularly as the decisive evidence, problems arise. The issue is not necessarily disclosure but what SIAC does with the closed material and if it is relied on. Particularly if obtained through unsound means, it should be rejected.

Mr. Fordham QC stated that under the European Convention on Human Rights (ECHR) Article 5(4) and Article 6  and also under the common law,  there is a right to sufficient disclosure of the gist of the case against an individual. However, at SIAC, appellants are not even allowed to know what the basic issues are. He also stated that at common law, secret evidence is inadmissible due to its inherent unfairness, just as evidence obtained through torture.

On the issue of “reversed closed evidence”, Mr. Fordham QC argued that witnesses for the appellant needed assurances that any evidence given would not be referred back to the country of origin. This is not a problem for Home Office witnesses who are fully protected. Counsel for the Algerian appellants sought absolute protection in this case, as any other measures could expose them to the risk of torture or ill-treatment, however this point was more problematic than the former as the matter would have to be raised with the Home Office first to make a decision on evidence it has not seen and SIAC could then decide whether or not to use this evidence. The issue is essentially diplomatic and concerns foreign relations.

Judgment in this key case is currently pending.

¹ Definition taken from the SIAC judgment in the 4 March 2010 case LO v Secretarty of State for the Home Department LO v Secretarty of State for the Home Department

² The ruling in the November 2009 case can be read at http://www.bailii.org/ew/cases/EWCA/Civ/2009/1287.html. You can also scroll down to Z, G, BB, U, Y, VV, PP, W after clickling here for a summary.