|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)
137. In the second place, the fact that the deportee may find himself subject in the receiving country to a legal process that is blatantly unfair cannot, of itself, justify placing an embargo on his deportation. The focus must be not simply on the unfairness of the trial process but on its potential consequences. An unfair trial is likely to lead to the violation of substantive human rights and the extent of that prospective violation must plainly be an important factor in deciding whether deportation is precluded.
138. A conviction that results from a flagrantly unfair trial cannot be relied upon under article 5(1)(a) as justifying detention.
It is the Convention organs case law that the requirement of Art.5(1)(a) that a person be lawfully detained after conviction by a competent court does not imply that the Court has to subject the proceedings leading to that conviction to a comprehensive scrutiny and verify whether they have fully complied with all the requirements of Art.6 of the Convention. However, the Court has also held that if a conviction is the result of proceedings which were a flagrant denial of justice", that is were manifestly contrary to the provisions of Article 6 or the principles embodied therein", the resulting deprivation of liberty would not be justified under Art.5(1)(a)."- Stoichkov v Bulgaria (2005) 44 EHRR 276.
Nor can such a conviction justify the imposition and execution of the death penalty. In either case the breach of the procedural rights guaranteed by article 6 will result in a breach of a substantive right. If an alien is to avoid deportation because he faces unfair legal process in the receiving state he must show that there are substantial grounds for believing that there is a real risk not merely that he will suffer a flagrant breach of his article 6 rights, but that the consequence will be a serious violation of a substantive right or rights. Quite how serious that violation must be has yet to be made clear by the Strasbourg jurisprudence. Plainly a sentence of death will be sufficient but the ECtHR has expressed doubts as to whether the risk of violation of article 5 can suffice to prevent the expulsion of an alien. In Tomic v United Kingdom (application no. 17837/03) an admissibility decision of 14 October 2003, the court commented:
The Court does not exclude that an issue might exceptionally be raised under Article 6 by an expulsion decision in circumstances where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country, particularly where there is the risk of execution (see, mutatis mutandis, Soering v United Kingdom, [(1989) 11 EHRR 439], § 113; Ocalan v Turkey, [(2005) 41 EHRR 985], §§ 199-213). Whether an issue could be raised by the prospect of arbitrary detention contrary to Article 5 is even less clear.
A similar comment was made in Z and T v United Kingdom (application no. 27034/05) decision of 28 February 2006.
139. In Mamatkulov the Grand Chamber was prepared to contemplate, and the minority to find, a violation of article 6 in circumstances where the extradition of the applicants had resulted in lengthy prison sentences. A different approach will, however, be appropriate in an extradition case. There it is the prospective trial that is relied on to justify the deportation. If there is a real risk that the trial will be flagrantly unfair, that is likely to be enough of itself to prevent extradition regardless of the likely consequences of the unfair trial.
140. In Bader v Sweden (2005) 46 EHRR 1497 the applicant successfully resisted deportation on the ground that if sent back to Syria he would be at risk of being executed pursuant to a trial that had been held in his absence. He relied on articles 2 and 3, but did not expressly aver a breach of article 6. Such a breach was, however, a necessary element in his case in relation to articles 2 and 3. At para 42 the ECtHR observed that to implement a death sentence following an unfair trial would violate article 2 and continued:
Moreover, to impose a death sentence on a person after an unfair trial would generate, in circumstances where there exists a real possibility that the sentence will be enforced, a significant degree of human anguish and fear, bringing the treatment within the scope of Art.3 of the Convention.
In this connection it should also be noted that the Court has acknowledged that an issue might exceptionally be raised under Art.6 of the Convention by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.
It follows that an issue may arise under Arts 2 and 3 of the Convention if a contracting state deports an alien who has suffered or risks suffering a flagrant denial of a fair trial in the receiving State, the outcome of which was or is likely to be the death penalty.
This decision exemplifies the approach of considering in combination the risk of a violation of Article 6 and articles guaranteeing substantive rights, the articles in question being 2 and 3. Although there is no authority that establishes this, I think that it is likely that the Strasbourg Court would hold article 6 and article 5 to be violated if an applicant were to be deported in circumstances where there were substantial grounds for believing that he would face a real risk of a flagrantly unfair trial and that the defects in the trial would lead to conviction and a sentence of many years imprisonment.
141. In summary, the Strasbourg jurisprudence, tentative though it is, has led me to these conclusions. Before the deportation of an alien will be capable of violating article 6 there must be substantial grounds for believing that there is a real risk (i) that there will be a fundamental breach of the principles of a fair trial guaranteed by article 6 and (ii) that this failure will lead to a miscarriage of justice that itself constitutes a flagrant violation of the victims fundamental rights. I turn to consider, having regard to this test, whether SIAC erred in law in concluding that Article 6 posed no bar to Mr Othmans deportation.
142. The potential consequences to Mr Othman of conviction of the offences for which he will be tried have already been established by the trials that took place in his absence: life imprisonment in the first instance and fifteen years imprisonment in the other. These consequences are, I believe, sufficiently severe to satisfy the second limb of the test. The vital issue that SIAC had to address was whether there were substantial grounds for believing that Mr Othman faced a real risk of a fundamental breach of the principles of a fair trial as recognised by the Strasbourg court.
143. I have summarised SIACs relevant findings of fact earlier in this opinion. There were two aspects of Mr Othmans prospective trial in Jordan that they found would, in a domestic context, be likely in combination to result in an unfair trial under article 6. The first was the composition of the court. The second was the approach of the court to the admission of evidence that might have been induced by inhuman treatment or even by torture.
The composition of the court
144. As to the composition of the court, the SSCt, it would consist of three judges, of whom the presiding judge and at least one other would be senior military officers, serving in the army as lawyers. The third judge would probably be a civilian. The state prosecutors would also be military officers, part of the same military hierarchy. In Jordan, as in other countries, the prosecutors are considered to be part of the judiciary. The judges would have no security of tenure and would be subject to being replaced by executive decision. They would be subject to the influence of the executive. While not independent there was no reason to suspect them of partiality. Convictions were not a foregone conclusion before the SSCt. There had in the past been a number of acquittals and successful appeals to the Court of Cassation. That was a civil court with jurisdiction to review the decisions of the SSCt on both law and fact.
145. Such a court would not have satisfied the article 6 requirement of an independent and impartial tribunal". The approach of the ECtHR to such tribunals is apparent from the following passage from the judgment in Ergin v Turkey (No 6) (application no. 47533/99) decision of 4 May 2006 (citations excluded):
42.The Court observes that it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated. However, the existence of such a jurisdiction should be subjected to particularly careful scrutiny.
43. Moreover, the Court has attached importance in numerous previous judgments to the fact that a civilian has had to appear before a court composed, if only in part, of members of the armed forces . It has held that such a situation seriously undermined the confidence that courts ought to inspire in a democratic society.
44. That concern, which is all the more valid when a court is composed solely of military judges, leads the Court to affirm that only in very exceptional circumstances could the determination of criminal charges against civilians in such courts be held to be compatible with article 6.
146. While in a domestic case the composition of the SSCt would violate article 6, it does not follow that this would, of itself, constitute a flagrant breach of article 6 sufficient to prevent deportation in a foreign case. The Court of Appeal considered this question at paragraphs 33 to 42 of its judgment and, in agreement with SIAC, concluded that it would not. I have reached the same conclusion and would endorse the reasoning on this point of the Court of Appeal.
The admission of evidence that may have been obtained by torture
147. SIAC found that Mr Othman would be tried on the basis of the dossiers that had been placed before the court on the two occasions when he was convicted in his absence. These included confessions made by others that had incriminated Mr Othman. The confessions were made to the Public Prosecutor, but the makers alleged that they had been made consequent upon coercion of the makers and their families when detained by the GID that took the form of torture and inhuman treatment.
148. SIAC made the following findings in relation to the admission of confessions under Jordanian criminal procedure. It is illegal to obtain evidence by coercion. The Public Prosecutor cannot adduce confessions made to others unless he proves that they were made willingly. Where, however, confessions are made to the Public Prosecutor they can be admitted in evidence unless the makers prove that they were made as a consequence of prior coercion. The admission of the confessions that implicated Mr Othman had been challenged, unsuccessfully, before both the SSCt and the Court of Cassation in the previous trials.
149. SIAC made the following findings about these confessions. There was a real risk that the confessions were obtained by treatment that breached article 3, possibly amounting to torture. It would be open to Mr Othman to challenge the admission of these confessions, but the high probability was that the challenge would not succeed and that the confessions would be admitted. If so, they would be of considerable, perhaps decisive, importance against him.
150. SIAC did not consider that the fact that the burden of proof would be on Mr Othman to prove that the confessions were obtained by coercion was itself unfair. I have summarised earlier at paragraph 58 the features that SIAC considered amounted, cumulatively, to unfairness of the trial. They were the absence of precautions of a type common in this jurisdiction against obtaining evidence by duress and the fact that the court, lacking independence, might be reluctant to accept the possibility that the confessions had been obtained by coercion and would not examine such allegations closely or vigorously.
151. SIAC referred to the evidential difficulties of proving that the confessions were obtained by torture or inhuman treatment and summarised the position as follows at para 422:
However, with whatever deficiencies the legal system may have in terms of the burden of proof, the availability of evidence or in terms of judicial attitude towards such allegations, whether correct, sceptical, naïve or even indifferent, the admission of that evidence would be the consequence of a judicial decision, within a system at least on its face intended to exclude evidence which was not given voluntarily. We cannot say that that decision, on that burden of proof, would probably be wrong; still less that it would be manifestly unreasonable or arbitrary. Nor can we say that the original decisions on the admissibility of the evidence were wrong or manifestly unreasonable or arbitrary.
The conclusions of the Court of Appeal
152. SIAC concluded that the shortcomings that I have summarised, when viewed in the context of the trial process as a whole, did not amount to a total denial of the right to a fair trial". The Court of Appeal held that, in so concluding, SIAC erred in law. The reasoning of the Court of Appeal appears from the following key passages in the judgment of Buxton LJ:
45 . Counsel for the Secretary of State said that it was no part of his submission to say that if it is clear that a trial will take place on the basis of evidence obtained under torture, whether of the individual themselves, or third parties, that that would not involve flagrant denial of justice.
. . .
48. The use of evidence obtained by torture is prohibited in Convention law not just because that will make the trial unfair, but also and more particularly because of the connexion of the issue with article 3, a fundamental, unconditional and non-derogable prohibition that stands at the centre of the Convention protections. As the ECtHR put it in §105 of its judgment in Jalloh v Germany 44 EHRR 667:
Incriminating evidence-whether in the form of a confession or real evidence-obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture- should never be relied on as proof of the victims guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Art.3 of the Convention sought to proscribe or, as it was so well put in the US Supreme Courts judgment in the Rochin case 342 US 165, to afford brutality the cloak of law.
That view, that the use of evidence obtained by torture of ill-treatment is prohibited not just, or indeed primarily, because of its likely unreliability, but rather because the state must stand firm against the conduct that has produced the evidence, is universally recognised both within and outside Convention law. What is, with respect, a particularly strong statement to that effect, citing a multitude of equally strongly worded authorities, is to be found in §17 of the speech of Lord Bingham in A v Home Secretary (No2)  2 AC 221.
49. SIAC was wrong not to recognise this crucial difference between breaches of article 6 based on this ground and breaches of article 6 based simply on defects in the trial process or in the composition of the court. Rather, in its conclusions in §§ 442-452 of its determination, that are set out in § 32 above, it treated the possible use of evidence obtained by torture pari passu with complaints about the independence of the court: see in particular SIAC at §§449-450. That caused it not to recognise the high degree of assurance that is required in relation to proceedings in a foreign state before a person may lawfully be deported to face a trial that may involve evidence obtained by torture.
153. No criticism can be made of Buxton LJs statement of the fundamental prohibition of the admission of evidence obtained by torture and the reasons for this. I do not accept, however, the conclusion that he has derived from this, namely that it required a high degree of assurance that evidence obtained by torture would not be used in the proceedings in Jordan before it would be lawful to deport Mr Othman to face those proceedings. As Buxton LJ observed, the prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because the state must stand firm against the conduct that has produced the evidence". That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan. What is relevant in this appeal is the degree of risk that Mr Othman will suffer a flagrant denial of justice if he is deported to Jordan. As my noble and learned friend Lord Hoffmann said in Montgomery v H M Advocate  1 AC 641, 649
an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge".
154. The issue before SIAC was whether there were reasonable grounds for believing that if Mr Othman were deported to Jordan the criminal trial that he would there face would have defects of such significance as fundamentally to destroy the fairness of his trial or, as SIAC put it, to amount to a total denial of the right to a fair trial. SIAC concluded that the deficiencies that SIAC had identified did not meet that exacting test. I do not find that in reaching this conclusion SIAC erred in law.
155. For these reasons I would allow the Secretary of States appeal.
156. In these appeals the Secretary of State has made orders for the deportation of three aliens on the ground that it would be conducive to the public good (sections 3(5)(b) and 5(1) of the Immigration Act 1971). Two are Algerians who have been identified in these proceedings as RB and U. The third is Mohammed Othman, also known as Abu Qatada, who is of Jordanian nationality. When speaking of all three, I shall call them the aliens. They have challenged the deportation orders by appeal to the Special Immigration Appeals Commission (SIAC).
157. RB entered the country in 1995 as a visitor with leave to stay for 6 months and claimed asylum when arrested in 1999. The Secretary of States decision letter alleges that he has been closely associated with Islamist extremists in Algeria and a terrorist cell in London. U arrived via France in 1994 and claimed asylum, which was refused in 2000. Meanwhile, he had gone to Afghanistan, where the Secretary of State alleges that he held a high position in training camps for Mujahedin volunteers and had direct links to Al Qa'eda leaders. He is said to have been directly implicated in supporting terrorist plots, including a planned attack on the Strasbourg Christmas market in 2000. Abu Qatada arrived in the United Kingdom in 1993, when he was granted asylum on the ground that he had been tortured in Jordan. The decision letter alleges that he is a leading spiritual adviser and fundraiser for Islamist terrorist cells including the Al Qa'eda network. He has been twice convicted in his absence by a Jordanian court of participation in terrorist conspiracies to cause explosions in that country.
The grounds of challenge
158. All three aliens claim that deportation to their respective countries of nationality would violate their rights under article 3 of the European Convention on Human Rights (not to be subjected to torture or inhuman or degrading treatment) because there is a real risk that they would be tortured by the Algerian and Jordanian authorities respectively. Abu Qatada, who is likely to be retried in Jordan for the terrorist offences for which he has already been convicted in his absence, also claims that he would be deprived of his liberty by unreasonably lengthy detention incommunicado pending trial, contrary to article 5, and would not receive a fair trial, contrary to article 6, because the Jordanian military court which tries him will not be independent of the government and is likely to receive the evidence of witnesses who had been tortured. He also claims that his deportation would be contrary to the UN Convention relating to the Status of Refugees. The Secretary of States position is that although the records of both Algeria and Jordan might ordinarily suggest that there is a substantial risk that terrorist suspects would indeed be tortured, Her Majestys Government has been given specific assurances on the point which makes it unlikely that these three aliens will suffer ill treatment. SIAC dismissed all three appeals. As for the complaints under articles 5 and 6, the Secretary of State submits that these are relevant to the question of deportation only so far as there would be a flagrant denial of the rights in question and that any departure in Jordan from the standards required by articles 5 and 6 would not be sufficiently extreme. The Refugee Convention argument raises a short point of construction. SIAC dismissed all three appeals.
159. The Court of Appeal affirmed the decisions of SIAC under article 3 but upheld the appeal of Abu Qatada on the sole ground that evidence obtained by torture was likely to be used against him at his trial. His other grounds of appeal were dismissed. The Algerian aliens appeal to your Lordships House and the Secretary of State appeals against the decision in favour of Abu Qatada, while he cross-appeals against the dismissal of his case under article 3 and the rejection of his other complaints under articles 5 and 6 and the Refugee Convention.
SIAC: The use of closed material
160. In addition to the points raised before SIAC and the Court of Appeal, all three aliens submit to your Lordships that SIAC was not entitled to rely upon closed material, that is to say, material which the aliens and their advisers were not allowed to see. This is a radical submission because SIAC was set up as a court which could rely upon closed material. The 1997 Act was passed in response to the decision of the European Court of Human Rights (ECHR) in Chahal v United Kingdom (1997) 23 EHRR 413. At the time that case was decided, there was no appeal against a deportation order made on the ground that it was conducive to the public good, or against detention pending deportation pursuant to such an order: see section 15(3) of the 1971 Act. The alien could only make representations to the Secretary of States advisory committee. The ECHR held that the absence of any appeal or other effective remedy by an alien who was held in detention pending deportation on national security grounds infringed his rights under articles 5(4) (Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court) and 13 (Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy) of the Convention.
161. Although the ECHR recognised that the use of confidential material may be unavoidable where national security is at stake (paragraph 131) it said that techniques could be employed which accommodated legitimate security concerns and yet accorded the individual a substantial measure of procedural justice (ibid.) As an example of such a technique, it commended the procedure which had been developed by the Canadian Security Intelligence Review Committee, in the exercise of its supervisory powers over deportation on grounds of national security. This procedure, sketched in paragraph 144 of the judgment in Chahal, is more fully described in paragraphs 71-74 of the judgment of McLachlin CJ in Charkaoui v Minister of Citizenship and Immigration  SCC 9.
162. The Canadian procedure is clearly recognisable as a prototype of the procedure created by the 1997 Act and the Special Immigration Appeals Commission (Procedure) Rules 2003 SI No 1034 (the rules) made under powers conferred upon the Lord Chancellor by section 5 of the Act. By subsection (3), such rules may
(a) make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,
(b) make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him