|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)
197. I think there is little doubt that on these findings of fact, a trial held in the United Kingdom or another Member State would be in breach of article 6. SIAC so found: see paragraph 431. On the other hand, Member States are not in a position to regulate the conduct of trials in the foreign countries from which aliens come and to which they may have to be deported. Accordingly, a deporting state will be in breach of article 6 only if there is a real risk that the alien will suffer a flagrant denial of justice in the receiving state. That is perhaps not a very precise expression but Sir Nicolas Bratza, in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25 at paragraph O-III14 explained that the adjective flagrant was intended to convey the notion of
a breach of the principles of fair trial guaranteed by Art 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.
198. SIAC decided that this standard of unfairness had not been met. In Jordanian law, statements obtained by torture are inadmissible. The general rule is that the prosecution has to prove that evidence had been given voluntarily. But this rule does not apply to statements to the prosecutor, who is (in accordance with Continental practice) regarded as having judicial status. In the case of such statements, the burden is on the accused to show that they were the result of illegal coercion: paragraph 403.
199. At the earlier trial there had been allegations that statements had been obtained by ill-treatment which the court had rejected. SIAC said that, at a retrial of Abu Qatada, the court would not dismiss out of hand the allegations that incriminating evidence had been obtained by torture", although it was extremely unlikely that they would exclude it, not for any arbitrary or improper reason but because the accused was unlikely to have evidence to displace the conclusion reached at the earlier trial: paragraphs 412 and 413. But the ruling on whether the evidence was admissible would be a judicial decision and SIAC was unable to say that a ruling in favour of admissibility would be wrong, manifestly unreasonable or arbitrary. SIAC summed up its conclusion in paragraph 437:
Jordanian law does not permit evidence found to have been obtained involuntarily to be admitted, but it does require the defendant to prove that the statements which are most likely to be at issue here, those given before the Prosecutor, have been obtained in that way. A statement which may possibly have been given to a prosecutor as a result of prior duress is thus not excluded if the burden of proof is not discharged. We do not regard a legal prohibition on the admissibility of tainted material framed in that way as itself a factor which would make a trial unfair. The fact that under Jordanian law, statements to a Prosecutor which might have been obtained by prior duress are not excluded, because they have not been shown to have been so obtained, does not make the trial unfair. So to hold would mean that a fair trial required the Prosecutor/judge, in a civil law system, always to disprove an allegation that a confession made to him was obtained by prior ill-treatment; or it would involve the Courts of the deporting country holding that the Courts of the receiving country would not endeavour to apply its own laws. However, as to the first, the ECtHR treats the regulation of the admissibility of evidence as essentially a matter for the domestic legal system. The burden of proof in Jordan is reversed anyway where the statement at issue was made to the [prosecutor]. The majority decision in A and Others v Secretary of State for the Home Department (No 2)  2 AC 221, did not regard it as unfair, albeit with caveats, for evidence said to have been obtained by torture to be excluded only if that had been proved on a balance of probabilities by an appellant. We cannot conclude, particularly in the light of the incomplete information we inevitably have, that the evidence was probably obtained by treatment breaching Article 3. We can only conclude that that was a very real risk. The Jordanian Courts might agree.
200. The Court of Appeal allowed the appeal on the ground that SIAC had understated or misunderstood the fundamental nature in Convention law of the prohibition against the use of evidence obtained by torture": paragraph 45. Once SIAC had found that there was a very real risk that evidence had been obtained by torture, it was obliged to find that the trial would be a flagrant denial of justice unless satisfied that the evidence would be excluded or not acted upon. It cited in support a passage from Jalloh v Germany (2006) 44 EHRR 667. But that was a case on the requirements of article 6 in a Member State and not on what amounted to a flagrant denial of justice by a receiving state.
201. In my opinion the Court of Appeal was wrong and SIAC was entitled to find that there was no breach of article 6 in its application to a trial in a foreign state. The finding was that, given the burden of proof in respect of statements to the prosecutor in Jordanian law, evidence would not be excluded only because there was a real risk that it had been obtained by torture. In my opinion it is impossible to say that the application of such a rule would be a flagrant denial of justice". There is in my opinion no authority for a rule that, in the context of the application of article 6 to a foreign trial, the risk of the use of evidence obtained by torture necessarily amounts to a flagrant denial of justice.
202. The effect of the decision of the House of Lords in A and Others (No 2)  2 AC 221 is that a real risk that a statement has been obtained by torture is not enough to make it inadmissible in proceedings before SIAC. The burden is upon the appellant to satisfy SIAC on a balance of probability that the statement was so obtained. Thus the effect of Court of Appeals decision is that SIAC ought to have held that the Jordanian court would be perpetrating a flagrant denial of justice if it did not exclude evidence which would have been admissible before SIAC itself. That is too much of a paradox to form part of a rational system of jurisprudence.
203. In addition to the question of using evidence obtained by torture, Abu Qatada also submitted that his trial would be a flagrant denial of justice because it would take place before a military court, which was not for the purposes of article 6 an independent tribunal. SIAC found that although the judges were part of a military hierarchy and the court would therefore not have complied with article 6 in its application to a Member State, they would in fact act judicially and the trial would therefore not be a flagrant denial of justice. The Court of Appeal agreed and on this point I have nothing to add to the reasoning of SIAC and the Court of Appeal.
204. That leaves the two points taken by Abu Qatada in his cross-appeal, namely a potential breach of article 5 (deprivation of liberty) and a breach of the Refugee Convention. Jordanian law requires that an arrest be notified to the legal authorities within 48 hours and formal charges brought within 15 days of the arrest. But a judge may extend the period for up to 15 days at a time, up to a maximum of 50 days. During this period there is no right of access to a lawyer.
205. SIAC said that whether 50 day detention would be a breach of article 5 if it occurred in a Member State was debatable": paragraph 381. But it found that in reality a period of 50 days was unlikely to be sought: paragraph 382 and decided that in any event it would not amount to a flagrant denial of the right: paragraph 453. The Court of Appeal considered that SIACs finding of fact on the length of detention actually likely to occur was fatal to the complaint under article 5. I agree with both SIAC and the Court of Appeal.
The Refugee Convention
206. Abu Qatada was granted refugee status in 1994. But article 1(F) of the Convention provides that the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has been guilty of various acts, including (c) acts contrary to the purposes and principles of the United Nations". There seems little doubt that encouraging terrorism is contrary to those purposes and principles. But the alien submits that article 1(F)(c) can apply only to acts committed before he was granted refugee status. This argument was rejected by the Court of Appeal and I agree with its reasoning. In fact, the point seems to me to be hopeless. There is nothing in the language of paragraph (c) to suggest that it is confined to events which happened before refugee status was accorded. By contrast, paragraph (b) refers to the commission of a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee". If the draftsman of the Convention had wanted to confine paragraph (c) to prior events, appropriate language lay readily to hand.
207. I would therefore allow the appeal of the Secretary of State in Abu Qatadas case and restore the decision of SIAC.
LORD HOPE OF CRAIGHEAD
208. I accept with gratitude the description of the background to these appeals that has been provided so fully by noble and learned friends Lord Phillips of Worth Matravers and Lord Hoffmann. With that advantage I can confine my remarks to the principal issues. Like Lord Hoffmann, I shall refer to the three men whom the Secretary of State wishes to deport, where a reference to them collectively is appropriate, as the aliens and to Othman by his more familiar name which is Abu Qatada.
209. Most people in Britain, I suspect, would be astonished at the amount of care, time and trouble that has been devoted to the question whether it will be safe for the aliens to be returned to their own countries. In each case the Secretary of State has issued a certificate under section 33 of the Anti-terrorism, Crime and Immigration Act 2001 that the aliens removal from the United Kingdom would be conducive to the public good. The measured language of the statute scarcely matches the harm that they would wish to inflict upon our way of life, if they were at liberty to do so. Why hesitate, people may ask. Surely the sooner they are got rid of the better. On their own heads be it if their extremist views expose them to the risk of ill-treatment when they get home.
210. That however is not the way the rule of law works. The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into. The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word everyone". The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law - even those who would seek to destroy it - are in the same position as everyone else.
211. The paradox that this system produces is that, from time to time, much time and effort has to be given to the protection of those who may seem to be the least deserving. Indeed it is just because their cases are so unattractive that the law must be especially vigilant to ensure that the standards to which everyone is entitled are adhered to. The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone. It would be so easy, if it were otherwise, for minority groups of all kinds to be persecuted by the majority. We must not allow this to happen. Feelings of the kind that the aliens beliefs and conduct give rise to must be resisted for however long it takes to ensure that they have this protection.
The role of the Court of Appeal
212. The aliens accept that SIAC is the fact finding body in relation to the primary facts and that, as the Court of Appeal found in RB (Algeria) v Secretary of State for the Home Department  QB 533, para 93, it is their findings in fact that are in issue. In the ordinary case its findings could only be challenged on the ground of an error of law. But the aliens submit that different considerations apply where facts are applied to determine whether a persons removal amounts to a violation of his Convention rights. In such a case, they say, the ambit of what amounts to an error of law is enlarged. An error of law will have been demonstrated if the appellant can establish that the facts show that his Convention rights will be violated by his removal. They invite your Lordships to adopt the approach that the European Court takes to the question whether assurances provide adequate protection, as shown by the decision of the Grand Chamber in Saadi v Italy, (Application No 37201/06) (unreported) 28 February 2008.
213. In Saadi v Italy, para 128, the Grand Chamber said that in determining whether substantial grounds had been shown for believing that there was a real risk of ill-treatment incompatible with article 3, it would take as its basis all the material placed before it or, if necessary, material obtained by it proprio motu. In such cases, it said, the examination of the existence of a real risk must necessarily be a rigorous one: see Chahal v United Kingdom (1996) 23 EHRR 413, para 96, where the court said that this degree of scrutiny was necessary in view of the absolute character of article 3 and the fact that it enshrined one of the fundamental values of the democratic societies making up the Council of Europe. The aliens say that the appellate courts must adopt the same approach in such cases in domestic law, as they are public authorities within the meaning of section 6 of the Human Rights Act 1998. Why, asked Mr Drabble QC, when the Strasbourg court carries out its own evaluation, should the United Kingdom courts be powerless to intervene? He referred to Huang v Secretary of State for the Home Department  2 AC 167, para 8 where Lord Bingham of Cornhill, delivering the opinion of the committee, said that the object of the 1998 Act was to ensure that public authorities acted so as to avert or rectify any violation of a Convention right, with the result that such rights would be effectively protected at home, thus obviating or reducing the need for recourse to Strasbourg.
214. I agree with Lord Phillipss analysis of this argument in paras 62 to 73 of his opinion and with the way Lord Hoffmann disposes of it in paras 189-191 of his opinion. The extent of the jurisdiction that the Court of Appeal, and this House in its turn, may exercise in this case has been laid down by Parliament. In Huang v Secretary of State for the Home Department  2 AC 167, as the committee said in para 11 of its opinion, the legislation made it plain that the immigration appeal authority was not confined to a secondary, reviewing function. It had to decide for itself whether the impugned decision was lawful and, if not, to reverse it. In this case, however, the relevant provision is section 7(1) of the Special Immigration Appeals Commission Act 1997. It provides that where SIAC has made a final determination of an appeal, a further appeal may be brought only on any question of law material to that determination. It was not open to the Court of Appeal under this provision to conduct a rehearing of the questions of fact that the aliens objections to their removal give rise to, nor is open to your Lordships to do this. For very good reasons Parliament has entrusted an examination of the facts to a tribunal which is specially equipped to examine issues relating to the public good and the interests of national security. It has confined any appeal to a question of law. There is nothing in Convention law or section 6(1) of the 1998 Act that requires SIACs findings of fact on these issues, contrary to this provision, to be reopened on appeal.
215. The limitation of the grounds on which an appeal may be brought to a question of law only is a well-tried formula. The test which it invites was described by Lord Radcliffe in the context of an appeal on a question of law by way of a case stated by the General Commissioners of the Income Tax. In Edwards (Inspector of Taxes) v Bairstow  AC 14, 36 he said:
When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test.
He added that, for his part, he preferred the last of the three. In short the question is whether, as Lord Hoffmann has stated in para 191, no reasonable tribunal could have come to the same conclusion on the evidence.
216. Lord Phillips says in para 73 of his opinion that SIACs conclusions could only be attacked on the ground that they failed to pay due regard to some rule of law, had regard to irrelevant matters, failed to have regard to relevant matters or were otherwise irrational. This is the language of judicial review, as stated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223, 228. In Ashbridge Investments Ltd v Minister of Housing and Local Government  1 WLR 1320, 1326, Lord Denning MR said that the grounds on which the court could interfere with the decision of the Minister were identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law. So, although I prefer the way Lord Hoffmann puts it, I am willing to accept that the word irrational that Lord Phillips uses captures the same idea. If SIACs determination can be shown to have been one which no reasonable tribunal could have reached, or to have been irrational in the Wednesbury sense, the appellate court must assume that there has been an error in point of law which entitles it to intervene. That having been said, however, I think that it is preferable, in a statutory appeal from a fact-finding tribunal, to approach the question whether its determination was erroneous in point of law by asking whether it was one that no reasonable tribunal, properly directed, could have reached.
217. The important point is that the submission for the aliens confuses the jurisdiction that the Strasbourg court exercises under the Convention with that of the appellate courts under the domestic system. How the domestic system may deal with such issues is a matter for Parliament, for whose decisions the United Kingdom must answer if the need arises in Strasbourg. Parliament has entrusted the fact-finding function to SIAC. The counterpart of this arrangement is that the function of the appellate courts is confined to one that is essentially supervisory.
218. For the Secretary of State it was submitted that the approach to SIACs determinations should be that indicated by Baroness Hale in AH (Sudan) v Secretary of State for the Home Department  1 AC 678. In para 30 of her opinion in that case she said that the ordinary courts should approach appeals from expert tribunals with an appropriate degree of caution, as it is probable that in understanding and applying the law in their specialised field they will have got it right. Their decisions should be respected, she said, unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.
219. I think that careful attention needs to be paid to the context in which she made those observations. The decision that was under appeal in that case was one in which the Asylum and Immigration Tribunal had given reasons for its decision in terms that, when read in isolation, might have suggested that it had misdirected itself: see my opinion at para 19. The point Baroness Hale was making, with which I agreed, was that the reasoning which tended to invite this conclusion should not be subjected to an unduly critical analysis. That, for the reasons she gave, is the proper approach where the ground of complaint is directed to the way in its specialised field the tribunal has expressed itself. An appellate court should not be too ready to assume that it failed to understand and apply the law correctly. But appellate courts would not be performing their task properly if they were to exercise the same self-denying ordinance to decisions by judges sitting in the ordinary courts. Subject to the familiar rules that recognise the advantage that a judge enjoys who has seen and heard the witnesses, his decision is open to the widest scrutiny that is possible within the limits that the law places on the jurisdiction of the appeal court.
220. The statute provides that a sitting by SIAC is duly constituted if at least one of its members holds or has held high judicial office: 1997 Act, Schedule 1, para 5(a). In the present case its sittings were presided over by judges of very considerable skill and experience. It is proper to bear this fact in mind when the conclusions that it drew from the evidence are being scrutinised. But this is best seen as just one of the various factors that are relevant when consideration is being given to the question whether no reasonable tribunal could have come to the same conclusion on the evidence. Furthermore, the questions that the aliens raise in this case are directed not to particular passages in SIACs reasoning which might be said to raise doubts as to whether it misdirected itself in law, but to the conclusions which it reached on its consideration of all the evidence.
221. The issues in the cases of RB and U were whether there was a sufficient risk of their being tortured or subjected to inhuman or degrading treatment in breach of their rights under article 3 of the Convention on their return to Algeria. In Abu Qatadas case they were whether his deportation would result in detention for an unreasonably long period depriving him of his liberty under article 5 or would infringe his right to a fair trial under article 6. These were all issues of fact which, in view of the fundamental nature of those rights, SIAC was required to subject to anxious scrutiny. This level of scrutiny feeds its way into the appellate process too. The appellate court must apply the same standard when it is contemplating what a reasonable tribunal would have done. As Lord Radcliffe said in Edwards (Inspector of Taxes) v Bairstow  AC 14, 36 it must be assumed to have been properly instructed as to the relevant law. I would therefore reject any suggestion that SIAC is in a privileged position simply because of the specialised nature of the jurisdiction that it exercises.
The fairness of the procedure before SIAC
222. The aliens challenge the use of closed material in the determination of their cases on the grounds of procedural fairness. Mr Singh QC for RB and U submitted that it was not open to SIAC to rely on closed material as to issues of national security and safety on return because this was unfair to them as they had no opportunity to examine or challenge that material. He accepted that a decision to deport or expel an alien did not involve the determination of his civil rights and obligations within the meaning of article 6(1) of the Convention: Maaouia v France (2000) 33 EHRR 1037, para 35. Instead he submitted that there were four other gateways to this argument: (1) that article 6(1) applies because the aliens rights under articles 3 to 5 were being adjudicated upon; (2) that article 5(4) applies where aliens were being detained for deportation because a substantial measure of fairness was necessary to determine the lawfulness or otherwise of the detention; (3) that SIACs determination affected the aliens reputation as part of their rights under article 8, to which article 6(1) applies; and (4) that article 14 applies because the use of closed material in their case was discriminatory in respects that came within the ambit of those Convention rights.