Judgments - RB (Algeria) (FC) and another (Appellants) v Secretary of State for the Home Department
OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Original Appellant and Cross-respondent)

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25.   Nonetheless, SIAC found that there was a residual risk that RB would be at risk of treatment at the hands of the security services that infringed article 3 were it not for assurances given by the Algerian authorities. The decisive issue was the worth of the Algerian Government’s assurances in relation to RB. It was thus necessary to consider the four conditions. As to the first SIAC referred to the relevant assurances, which were as follows:

“By a note signed by Mohammed Amara, an Algerian High Court Judge seconded as personal advisor to the Minister of Justice, and under the seal of that Ministry, the Algerian authorities gave the following assurance:

       "Should the above named person (RB) be arrested in order that his status may be assessed, he will enjoy the following rights, assurances and guarantees as provided by the Constitution and the national laws currently in force concerning human rights:

a.  the right to appear before a court so that the court may decide on the legality of this arrest or detention and the right to be informed of the charges against him and to be assisted by a lawyer of his choice and to have immediate contact with that lawyer;

b.  he may receive free legal aid;

c.  he may only be placed in custody by the competent judicial authorities;

d.  if he is the subject of criminal proceedings, he will be presumed to be innocent until his guilt has been legally established;

e.  the right to notify a relative of his arrest or detention;

f.  the right to be examined by a doctor;

g.  the right to appear before a court so that the court may decide on the legality of his arrest or detection;

h.  his human dignity will be respected under all circumstances.”

SIAC held that this last assurance, couched in universally understood diplomatic language, constituted an express assurance not to torture or ill-treat RB, so that the first condition was satisfied.

26.  As to the second condition, SIAC held that the assurances were given in good faith, indeed there had been no assertion to the contrary.

27.  Turning to the third condition, SIAC was satisfied that it was in the long term interest of the Algerian state to comply with the assurances given in respect of RB for the following reasons:

“(i) For the reasons set out in Y, Algeria wishes to become, and to be accepted by the international community as, a normally-functioning civil society. To give and to break a solemn assurance given to another state would be incompatible with that ambition. So, too, would be a failure on the part of Central Government to ensure that its security services, at lower levels, did not frustrate them.

(ii) There are significant and strengthening mutual ties between Algeria and the United Kingdom: UK investment in Algeria, said to be the largest of any foreign state; the supply and purchase of gas; the exchange of security and counterterrorism information; the assistance which the United Kingdom can give Algeria in its turn towards free enterprise and the use of the English language. Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties. It is barely conceivable, let alone likely, that the Algerian Government would put them at risk by reneging on solemn assurances. Nor is there any reason to suppose that the British Government would turn a blind eye if they did. The safe and lawful return of persons found to be a threat to national security to their countries of origin is a high political priority of the British Government. If there were real grounds for believing that the assurances of the Algerian Government had been breached, the subsequent deportation of a person on national security grounds would be problematic or impossible. Further, the actions of the British Government would be undertaken in the knowledge that they would be scrutinised, in any subsequent case, by SIAC.

(iii) RB is, as Mr Tam puts it in his written closing submissions, a “small fish", by comparison with others who have been released by the Algerian authorities or allowed to return. He will return under the watchful gaze of the British Government, the British media and of non-governmental organisations such as Amnesty International. It would make no sense for the Algerian Government to renege on its assurances or even to fail to take steps to ensure that government agents at a lower level complied with them in the case of a man such as RB.”

28.  SIAC were also reassured by the absence of ill-treatment of two other Algerians who had been deported by the United Kingdom. One of these, in respect of whom similar assurances had been given, was alleged to have had involvement in terrorism (I shall refer further to these when describing SIAC’s decision in relation to U). For these reasons SIAC were satisfied that the third condition was satisfied.

29.  So far as the fourth condition was concerned, the United Kingdom government had sought to persuade the Algeria Government to agree to monitoring, but had not succeeded. For reasons given in the decision in relation to Y, SIAC concluded that there was nothing sinister in this. There were other ways in which the performance of the Algerian assurances could be verified. British Embassy officials would be permitted to maintain contact with RB, if not in detention, and prolonged detention would itself be indicative of a breach of the assurances. Amnesty International and other non-governmental agencies could be relied upon to find out if the assurances were breached and to publicise the fact. Accordingly SIAC found that the fourth condition was satisfied.

SIAC’s decision in relation to U

30.  U arrived in the United Kingdom on 29 November 1994 and claimed asylum. In late 1996 he went to Afghanistan, where he remained until the spring of 1999, when he returned to the United Kingdom. Asylum was refused on 27 June 2000. In February 2001 he was arrested and charged with an offence in the United Kingdom. That prosecution was discontinued in May 2001. He was released but re-arrested on immigration grounds. Within two months he was released on immigration bail but rearrested following an extradition request made by the United States of America. That request was discontinued in June 2005. On 11 August 2005 he was served with notice of the Secretary of State’s decision to deport him to Algeria on the grounds of national security, pursuant to section 3(5) of the Immigration Act 1971. Like RB, he appealed to SIAC on the ground, among others, that if he were deported to Algeria he would face a real risk of ill-treatment contrary to article 3. He was granted bail on 15 April 2008 and has remained on bail, subject to conditions.

31.  SIAC was once again chaired by Mitting J and held both open and closed hearings. Their decision was delivered on 14 May 2007 in an open judgment and a closed judgment on the issue of safety on return.

32.  On 7 November 2006 U waived his right to contest the Secretary of State’s case that he posed a threat to national security without, however, making any admissions. This enabled SIAC to deal with the question of national security without the need for a closed judgment. It suffices to say that SIAC held that there were credible grounds for concluding that U had held a senior position in a Mujahedin training camp in Afghanistan, that he had had direct links with Usama Bin Laden and other senior Al Qa'eda figures and that he had been involved in supporting terrorist attacks including the planned attack on the Strasbourg Christmas market in 2000 and an earlier plan to attack Los Angeles airport. SIAC concluded that he posed a significant risk to national security.

33.  Turning to the issue of safety on return, SIAC referred to assurances given in relation to U on 2 August 2006 by the Algerian Ministry of Justice that were in identical terms to those given in the case of RB. SIAC stated that they adopted the findings made in respect of Y and RB and one other Algerian applicant, G, in respect of the state of affairs in Algeria and the reliability of assurances given by the Algerian State. They went on to explain why evidence that had been adduced on behalf of U in relation to events that had occurred in Algeria since the decision in RB did not cause them to take a different view.

34.  These events related to four Algerians who had been deported to Algeria in January 2007, each of whom had withdrawn appeals against deportation. Assurances identical to those given in relation to RB and to U had been given in relation to two of them and somewhat different assurances in relation to a third. Two of the men were detained pursuant to criminal proceedings that were brought against them on their return to Algeria. Their lawyers reported to the lawyers acting for U that they had, while in their cells, heard noises that appeared to be caused by others being tortured in the vicinity. This evidence conflicted with other reports about the experience of the two men while in prison. SIAC accepted that if they had been deliberately exposed to the sounds of others actually being tortured, or pretending to be being tortured, that would be capable of amounting to inhuman or degrading treatment. SIAC were unable, however, on balance of probabilities, to conclude that such events had occurred.

35.  SIAC concluded that the Algerian State had fulfilled to the letter those parts of its assurances that could be conclusively verified. While there was a possibility that two of the men might have heard the noises of others being tortured, or pretending to be being tortured, information had been available about them from a number of sources and this did not establish that there were substantial grounds for believing them to have been ill-treated. In these circumstances there were no substantial grounds for believing that U would be ill-treated if deported. His appeal was dismissed.

RB and U’s appeals to the Court of Appeal

36.   These appeals were heard together with that of a third similar appellant, Y or MT. Open and closed judgments of the court were delivered on 30 July 2007: MT (Algeria), RB (Algeria), U (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 808; [2008] QB 533. The determinations of SIAC were quashed and the appeals remitted to them on closed grounds of appeal identified by the Special Advocates. SIAC rejected the remitted appeals on 2 November 2007 and applications for permission to appeal have been stayed pending the decision of your Lordships in the current appeals. In those appeals your Lordships are concerned with issues dealt with by the Court of Appeal in the open judgment in respect of which RB and U were unsuccessful.

37.  The first such issue was whether it had been open to SIAC to use closed, as well as open, material in reaching their conclusions on safety on return. The court rejected the argument that article 3 imposed a procedural requirement that the appellants and their (open) advocates should see all the relevant material. They also rejected the argument that such a requirement was imposed by principles of legality and fairness under domestic law, observing that the statutory scheme made it quite plain that Parliament intended that the particular procedure of SIAC, including the use of Special Advocates, should be employed in relation to the assessment of safety on return.

38.  The second relevant issue related to the jurisdiction of the Court of Appeal. At the heart of RB and U’s appeals was the contention that SIAC had erred in the significance that they had attached to the assurances of the Algerian Government. The Court of Appeal raised the question of whether they had jurisdiction to entertain this argument, having regard to the fact that the appellants only enjoyed a right of appeal on a question of law. Having heard argument the court concluded that the submissions advanced in relation to assurances went not to a question of law but to the issue of fact of whether there was a real risk that deportation would render the appellants subject to treatment proscribed by article 3. It followed that the court had no jurisdiction to entertain the attack made by the appellants on SIAC’s findings.

39.  Despite this finding, the Court of Appeal considered the attack made on the weight attached by SIAC to the assurances given by the Algerian government and rejected that attack. RB and U have sought to renew that attack before your Lordships.

SIAC’s decision in relation to Mr Othman

40.  SIAC’s decision in relation to Mr Othman is 136 pages in length and it will be necessary to refer to parts of it in more detail in due course. At present I shall restrict myself to the short summary that is necessary to understand the issues raised before your Lordships.

41.  Mr Othman, who is also known as Abu Qatada, was born in 1960 in Bethlehem, then administered as part of the Kingdom of Jordan. He arrived in the United Kingdom in 1993, having fled from Jordan and spent some time in Pakistan. He made an application for asylum on the ground that he had been tortured by the Jordanian authorities, a claim that SIAC accepted may well be true. His claim was successful and he was granted refugee status in 1994.

42.  In April 1999 Mr Othman was convicted in Jordan in his absence of conspiracy to cause explosions, in a trial known as the ‘Reform and Challenge’ case. He was one of 13 defendants. He was sentenced to life imprisonment. The case involved an alleged conspiracy to carry out bombings in Jordan which resulted in successful attacks on the American School and the Jerusalem Hotel. The trial took place before the State Security Court (‘SSCt’), a military tribunal. Evidence against Mr Othman included an incriminating statement made to the State Prosecutor by a co-defendant, Mr Abdul Al Hamasher. Mr Al Hamasher was convicted and sentenced to life imprisonment. At the trial Mr Al Hamasher and a number of other defendants sought, unsuccessfully, to have reliance on their statements excluded on the ground that they had been obtained by torture.

43.  In the autumn of 2000 Mr Othman was convicted in Jordan, again in his absence, in a case known as the ‘Millennium Conspiracy', of conspiracy to cause explosions. The case against him included an incriminating statement made by a co-defendant, Mr Abu Hawsher to the State Prosecutor. Mr Othman was sentenced to 15 years imprisonment. Mr Abu Hawsher and other defendants alleged to be more deeply implicated in the conspiracy were convicted and sentenced to death. Once again he and other defendants sought unsuccessfully to have reliance on their statements excluded on the ground that they had been obtained by torture.

44.  On 17 December 2001, pursuant to section 33 of the Anti-terrorism, Crime and Security Act 2001 (‘the 2001 Act’), the Secretary of State certified that Mr Othman was not entitled to the protection of article 33(1) of the Refugee Convention because article 1(F) or article 33(2) applied to him and that his removal from the United Kingdom would be conducive to the public good. In October 2002 he was detained under the 2001 Act. He was released on bail by SIAC on 11 March 2005 and made subject to a control order, under the Prevention of Terrorism Act 2005, on the following day. That order remained in force until 11 August 2005.

45.  On 10 August 2005 a Memorandum of Understanding (‘MoU’) was signed between the United Kingdom and Jordan. This contained the following assurances:

“7. A returned person who is charged with an offence following his return will receive a fair and public hearing without undue delay by a competent, independent and impartial tribunal established by law. Judgment will be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

8. A returned person who is charged with an offence following his return will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

An express undertaking was given that, if Mr Othman were deported to Jordan, the MoU would be applied in his case.

46.  On 11 August 2005 Mr Othman was served with a notice of the Secretary of State’s intention to deport him to Jordan on the ground that he was a threat to national security. He was detained pending deportation and remained detained until granted bail on 17 June 2008.

47.  On 24 October 2005 the Adaleh Centre for Human Rights (‘Adaleh’) signed an agreement with the United Kingdom government under which it would monitor the due performance of the obligations undertaken by Jordan under the MoU.

48.  Mr Othman’s appeal to SIAC was heard over 5 days in May 2006 and the decision of SIAC, under the chair of Ouseley J, was delivered on 26 February 2007. SIAC held both open and closed hearings, the latter relating both to whether Mr Othman posed a danger to national security and to whether he could safely be returned to Jordan. SIAC delivered both open and closed judgments, but stated that the closed evidence and SIAC’s conclusions on it were reflected in the open judgment.

49.  Mr Othman advanced a number of grounds of appeal before SIAC. He challenged the Secretary of State’s finding that his deportation was justified on the grounds of national security, although he did not advance a positive case in relation to this issue. He contended that he was protected from deportation by his status as a refugee and, in particular, that article 1F of the Refugee Convention had no application on the facts of his case. He contended that his deportation would infringe his rights under articles 2, 3, 5, 6 and 8 of the Human Rights Convention and that it was an abuse of power to subject him to deportation. Not all of these contentions are pursued before your Lordships.

50.   SIAC dismissed Mr Othman’s appeal against deportation. So far as concerned the question of whether his deportation was justified by interests of national security they made findings of relevance not only to that issue but to the interest that the Jordanian authorities would pay to him on his deportation. Their conclusion was that he

“… has given advice to many terrorist groups and individuals, whether formally a spiritual adviser to them or not. His reach and the depth of his influence in that respect is formidable, even incalculable. It is not a coincidence that his views were sought by them. He provides a religious justification for the acts of violence and terror which they wish to perpetrate; his views legitimised violent attacks on civilians, terrorist group attacks more generally, and suicide bombings. He may have spoken against some grosser excesses, but that does not go very far. Even if his views are sometimes couched in careful language, their import is clear to those who take notice of what he says and know how to interpret it. His views, scholarly in any conventional sense or not, are important to extremists seeking to justify violence.”

51.  This led SIAC to conclude that article 33(1) of the Refugee Convention, if it was applicable, could afford Mr Othman no protection against refoulement because he was a danger to the security of the United Kingdom and therefore fell within the exception in article 33(2). In the event, however, SIAC held that article 1F(c) had deprived Mr Othman of refugee status by reason of his terrorist activity since he was recognised as a refugee. Quite apart from these considerations, SIAC found, for reasons that I shall shortly explain, that there was no real risk that Mr Othman would be persecuted if he was returned to Jordan.

52.  SIAC made the following findings in relation to those arguments based on the Convention that remain relevant to this appeal. So far as article 3 was concerned, in the absence of special circumstances there would have been a risk that Mr Othman’s deportation would infringe his rights under article 3. There would have been a real risk that he would be ill-treated in custody. As it was, the fact that he would have a very high profile coupled with the MoU, and the diplomatic capital invested in it, meant that the Jordanian authorities were likely to make sure that he was not ill-treated in custody or when he emerged from it.

53.  So far as article 5 was concerned, Mr Othman had argued that he would be exposed to the real risk of being detained without charge for as long as 50 days, for under Jordanian law detention without charge could be extended for that period. The MoU provided, however, that any individual detained had to be brought ‘promptly’ before a judge or other person authorised by law to determine the lawfulness of his detention. SIAC held that, in the case of Mr Othman, the likelihood was that this provision would result in Mr Othman being brought before a judicial authority within 48 hours. It was unlikely that the full 50 day period would be used. It followed that there was no real risk of a flagrant breach of Mr Othman’s right to liberty under article 5.

54.  The article that caused SIAC most concern was article 6. If deported Mr Othman faced a re-trial in respect of both charges on which he had been convicted in his absence. He made two objections to the trial process that he would face. The first was that he would be tried by the SSCt and that this was not an independent and impartial tribunal nor one before which the prosecutor would be independent and impartial. The second objection was that he would be at real risk of being convicted on the basis of the statements made by Mr Al Hamasher and Mr Abu Hawsher and that these statements had been obtained by torture.

55.  SIAC accepted the submission that the SSCt and the prosecutor would not be independent. The judges and the prosecutor, while legally qualified, held military rank. They were appointed by and subject to removal by the executive. The fact that the prosecutor and the majority of the judges were part of the same military hierarchy did not add to the appearance of justice or independence.

56.  So far as the incriminating statements were concerned, SIAC found that there was “at least a very real risk", albeit that they could not find that this was a probability, that these were obtained as a result of treatment by officers of the General Intelligence Directorate (‘GID’) which “breached Article 3 ECHR” and which may or may not have amounted to torture. There was “a high probability” that such evidence would be admitted against Mr Othman and that it would be of considerable, perhaps decisive, importance against him.

57.  SIAC found that Jordanian law did not permit evidence obtained involuntarily to be admitted, but that the onus lay on a defendant to prove that statements made to a State Prosecutor were other than voluntary. Mr Othman would be unlikely to discharge this onus for the following reasons:

“Its judges have legal training and are career military lawyers. There is a very limited basis beyond that for saying that they would be partial, and that has not been the gravamen of the complaint. Their background may well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence.”

58.  SIAC concluded that these matters had the result that Mr Othman’s trial would be unfair by the standards of Article 6:

“To us, the question comes back to whether or not it is unfair for the burden of proof in Jordan to lie where it does on this issue; we do not think that to be unfair in itself. However, this burden of proof appears to be unaccompanied by some of the basic protections against prior ill-treatment or means of assisting its proof eg video or other recording of questioning by the GID, limited periods of detention for questioning, invariable presence of lawyers, routine medical examination, assistance from the Court in calling relevant officials or doctors. The decisions are also made by a court which lacks independence and does not appear to examine closely or vigorously allegations of this nature. It is taking these points in combination which leads us to conclude that the trial would be likely to be unfair within Article 6 because of the way the allegations about involuntary statements would be considered.”

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