W (Algeria) & others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD KERR,LORD DYSON,LORD BROWN,LORD PHILLIPS,LORD WILSON |
| Judgment Date | 07 March 2012 |
| Neutral Citation | [2012] UKSC 8 |
| Date | 07 March 2012 |
| Court | Supreme Court |
[2012] UKSC 8
Lord Phillips, President
Lord Brown
Lord Kerr
Lord Dyson
Lord Wilson
Appellant
Michael Fordham QC
Stephanie Harrison
(Instructed by Luqmani Thompson & Partners; Birnberg Peirce & Partners; Tyndallwoods)
Respondent
Robin Tam QC
Robert Palmer
(Instructed by Treasury Solicitors)
Heard on 30 January 2012
From time to time over many years the Secretary of State for the Home Department has been concerned to deport a foreign national on the grounds of national security. Sometimes, indeed with increasing frequency, those facing such deportation decisions have wished to contest them, either by challenging that they present a national security risk, or by invoking the European Convention on Human Rights and contending that they would be at risk of article 3 ill-treatment if returned to their home country.
To enable such cases to be properly heard, Parliament, by the Special Immigration Appeals Commission Act 1997 (the 1997 Act) established SIAC and, as will be very familiar to all with any interest in this area of the law, provided for an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. All this has been rehearsed time and again in a succession of judgments—not least, indeed, in paras 4-15 of the judgment below—and no useful purpose would be served by my repeating it all here. Put very shortly, if the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the appellant, SIAC's rules and procedures provide for this to be done—just how satisfactorily being a matter of continuing debate into which, happily, there is on this appeal no need to enter.
The difficulty raised by the present case is a very different one and, it should be recognised at once, one that faces the court with what can only be regarded as the most unpalatable of choices. It is lesser evils which the court is searching for here, not perfect solutions. The difficulty and dilemma now before us can most easily be illustrated by my immediately sketching out a notional set of facts.
Suppose that an appellant before SIAC (A) is a suspected terrorist whom it is proposed to return to Algeria. Such, indeed, is the position of each of the appellants now before us. Suppose—this, too, is no mere supposition; it has been common ground before SIAC in a number of cases—that Algeria is a country where torture is systematically practised by the DRS (Information and Security Department) and that no DRS officer has ever been prosecuted for it; and that: "in the absence of [certain assurances from the Algerian Government] there would be a real risk that on his return to Algeria A (and persons in a similar position) would be tortured or subject to other ill-treatment" (SIAC's judgment of 8 February 2007 in G v Secretary of State for the Home Department: Appeal No SC/02/05—G being one of the appellants now before us). Suppose that the Algerian authorities are hostile to any independent scrutiny of their actions in the human rights sphere: human rights organisations such as Amnesty and Human Rights Watch are not permitted to operate there; even the International Red Cross is denied access to DRS facilities. And suppose, as is also here the case, that the Secretary of State obtains assurances from the Algerian Government that A's rights will be respected on return, the value of these assurances being the principal question at issue on A's SIAC appeal.
Suppose, then, that A wishes to adduce evidence from someone with inside knowledge of the position in Algeria asserting that, notwithstanding the Algerian Government's official assurances, those in A's position on return to Algeria are in fact likely to be subject to torture or other article 3 ill-treatment. Perhaps this prospective witness (W) was himself ill-treated on return. Perhaps W is a "whistleblower" working within the Algerian prison service: an official or an interrogator or a medical practitioner. Perhaps he is a journalist or other outsider who has obtained particular information as to the fate of those like A on their return. Suppose that W (whether or not himself still in Algeria) is in a vulnerable position: he fears future torture or ill-treatment either of himself or of someone near and dear to him. Perhaps at an earlier stage he had raised his concerns internally and been threatened that if ever he voiced them abroad his wife or children would suffer for it.
Suppose finally that, such being the circumstances, W is not prepared to give evidence in A's appeal to SIAC save only on one unalterable condition, namely that his identity and evidence will forever remain confidential to SIAC and the parties to the appeal (A and the Secretary of State). He is concerned in particular that the Secretary of State might seek to communicate something at least of his evidence to the Algerian authorities (or indeed to others in such a way as may bring him to the attention of the Algerian authorities) if only to seek to assess its veracity and reliability, and that her doing so might place him or his family in peril, something he is simply not prepared to risk. W, therefore, requires an absolute and irreversible guarantee of total confidentiality before he will permit his identity and evidence to be disclosed to the Secretary of State. Is it open to SIAC to make an order providing for such a guarantee? That, as will shortly appear, is the central question now before us.
It is not, I should make clear at this stage, the appellants' case that, SIAC having made an absolute and irreversible order giving W the guarantee he seeks, W's evidence will necessarily then have to be regarded by SIAC as properly before them when finally it comes to their determining the disputed issue as to A's safety on return. Rather the appellants propose an intermediate, inter partes hearing, by which time the Secretary of State must have been provided with full information as to W's identity and intended evidence, and at which she will be able to contend that, for whatever reason, it would be wrong for SIAC to admit W's evidence on the substantive appeal. She may suggest that in reality W has advanced no coherent case for saying that he is at risk of reprisals. Or she may say that W's proposed evidence is inherently implausible and that, without her being afforded the least opportunity to check its authenticity or credibility or reliability it would simply not be right to afford it any weight whatever. Or she may have other arguments to advance. If, having heard them, SIAC then chooses to shut the evidence out, so be it. If, however, SIAC admits the evidence, then, reluctant though doubtless they will be to give it the weight it might have been expected to carry had the Secretary of State been permitted to check it, at least it will be before them (when ex hypothesi it would otherwise not have been) and in the result SIAC will have the benefit of the fullest possible picture on a critically important issue in the appeal: the question of A's safety on return. It is on this basis and in this context that the question now arises: in such circumstances can SIAC ever properly make an absolute and irreversible order (necessarily on an ex parte application by A without the Secretary of State having an opportunity to resist it), prohibiting the Secretary of State from ever disclosing to anyone anything of W's identity or evidence?
This question the Court of Appeal on 29 July 2010 answered in the negative: [2010] EWCA Civ 898. Giving the only reasoned judgment (with which Jacob and Sullivan LJJ simply agreed), Sir David Keene (at para 27) concluded that:
"[I]t is not open to SIAC to make an order giving the absolute and irrevocable guarantee which is sought by the appellants. This may create a difficulty for the appellants, because of the reluctance of their potential witnesses, but it is inescapable. The adverse effect on them can be mitigated by such steps as anonymity orders and hearings in private, but irrevocable orders preventing the Secretary of State from disclosing material to a foreign state in any circumstances cannot properly be made by SIAC in advance of the Secretary of State seeing that material. As counsel for the Secretary of State said at the SIAC hearing, such a proposal is unworkable and in my view falls outside the scope of SIAC's powers to give directions, broad though those powers are."
Before turning to the Secretary of State's objections I should observe that, although Sir David there spoke of the appellant's proposals "fall[ing] outside the scope of SIAC's powers", he had earlier, at para 20, recorded that:
"Mr Tam QC, on behalf of the Secretary of State, accepts that SIAC could give directions under the Procedure Rules preventing the Secretary of State from disclosing such material to any other person, including the Algerian authorities. He acknowledges that SIAC's power under rule 39 (1) to 'give directions relating to the conduct of any proceedings' is expressed in wide and unlimited terms and could be used in conjunction with the rule 43(2) power to conduct a hearing in private for any good reason so as to prevent disclosure to other persons, including the authorities of the appellant's country of...
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