OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
17
may lawfully be deported to face a trial that may involve evidence obtained by
torture.”
52. The Court of Appeal noted that SIAC had reached its conclusion that
there would not be a complete denial of justice in relation to the use of
evidence obtained by torture by relying on the process, admittedly not
wholly satisfactory, before the State Security Court and the Court of
Cassation. For the Court of Appeal that conclusion sat very ill with SIAC’s
own findings about the State Security Court process, in particular SIAC’s
own concern as to the difficulties in proving that evidence had been
obtained by torture. In the opinion of the Court of Appeal, SIAC’s concern
was “amply justified by the litany of lack of the basic protections against
prior ill-treatment” in Jordan. It also criticised SIAC’s “disturbing failure”
to give proper weight to the findings as to the defects in the State Security
Court. The Court of Appeal concluded:
“It was not open to SIAC to conclude on that evidence that the risk of the total
denial of justice that is represented by the use of evidence obtained by torture had
been adequately excluded. SIAC could not have so concluded if it had properly
understood the status in Convention law of this aspect of article 6.”
3. Proceedings before the House of Lords
53. The Secretary of State appealed to the House of Lords in relation to
the Court of Appeal’s conclusion on Article 6. The applicant cross-appealed
in relation to his other Convention complaints. The appeal was heard with
the appeals of two of the appellants in MT (Algeria), RB and U (see
paragraph 48 above). In the conjoined appeals the House of Lords was
therefore able to consider the use of closed material before SIAC, the
reliance on the assurances contained in the MOU and the applicant’s
Articles 5 and 6 complaints. The House of Lords gave judgment on
18 February 2009 unanimously allowing the Government’s appeal and
dismissing the applicant’s cross-appeal ([2009] UKHL 10).
(a) Article 3: the “closed” proceedings before SIAC
54. Lord Phillips held that SIAC was lawfully entitled to consider closed
material in evaluating safety on return and there were cogent considerations
of policy for doing so. A distinction had to be drawn between closed
material on safety on return and the use of closed material in other
proceedings, for example to establish the national security threat posed by
an individual. For the former, the individual would normally be aware of the
nature of any risk on return and, in any event, it was for the individual
himself, and not the State, to make out his case on whether he would be at
risk on return. It was not likely to be critically important for a special
advocate to be able to obtain input from the person to be deported in relation
to closed evidence. As regards the impracticality of obtaining an appropriate
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