9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) connected to Al Qa'eda who can be described as part of Al Qa'eda itself or associated with it. They are at least influenced from outside the United Kingdom… … 309… There are reasonable grounds, at least, for considering that there is a continuing direct terrorist threat to the United Kingdom from a group or groups or network of largely North African Islamic extremists, linked in various ways to Al Qa'eda…" 154. This grave and present threat cannot be neutralised by the processes of investigation and trial pursuant to the general criminal law. The reach of those processes is marked by what can be proved beyond reasonable doubt. But the danger of terrorist attack is by no means only presented by persons who might be convicted of criminal offences. Others, against whom little or nothing could be proved by evidence which could properly be adduced before a jury, may be the lively source of such a danger. The danger and its potential source may, however, be well established by available intelligence which does not amount to admissible evidence. 155. In these circumstances the State faces a dilemma. If it limits the means by which the citizens are protected against the threat of terrorist outrage to the ordinary measures of the criminal law, it leaves a yawning gap. It exposes its people to the possibility of indiscriminate murder committed by extremists who for want of evidence could not be brought to book in the criminal courts. But if it fills the gap by confining them without trial, it affronts "the most fundamental and probably the oldest, most hardly won and the most universally recognised of human rights": freedom from executive detention. 156. The issues in these appeals concern the ways and means by which in practice the State has sought to confront and resolve this dilemma. At this stage I give merely the broadest outline. By Part IV of the Anti-Terrorism, Crime and Security Act 2001 ("ATCSA") Parliament has conferred on the Secretary of State a power of executive detention in defined circumstances. The power is subject to substantial checks and controls, not least the right of appeal against the Secretary of State's decision (effected by a certificate issued by him) to SIAC, which is a specialist tribunal constituted as a superior court of record and presided over by a High Court judge. There is a right of further appeal to this court on any material point of law. I will give the detail in due course. In essence Part IV of ATCSA is concerned with the minimisation of risk: the risk of threats by terrorists to the national security of the United Kingdom. The ten appellants are all persons in respect of whom the Secretary of State issued a certificate, and whose appeals to SIAC have been dismissed. Their grounds of appeal to this court, advanced with permission granted by SIAC on 5 December 2003, reflect the dilemma I have described. By one route or another it is urged, in effect, that the law's abhorrence of executive detention should be given greater weight, and the State's duty to protect its citizens against violent outrage should be given less. 157. Given this overall perception of the appellants' arguments, I consider it worth making some general remarks at this stage about the law's approach to the avoidance, or minimisation, of risk. The paradigm of the common law's function is, I suppose, the case where A undertakes to prove a claim against B. Whether A is a public prosecutor or a private claimant, his case is won if it is proved and lost if it is not. Our long history of adversarial process conduces to a sense that this is the just way of doing things. The defendant is only subject to criminal sanction or civil redress if the case is properly proved against him, the standard of proof being appropriate to the subject-matter of the case. 158. But the law knows many instances in which a defendant is fixed with onerous legal consequences in the absence of any proof beyond a reasonable doubt or on the balance of probability; where, rather, all that can be shown is that there is a risk or a chance that this or that will eventuate. Such instances generally arise where the court is particularly called on to assess what may happen in the future. In the field of environmental law "risk theory", as it is sometimes named, plays an increasingly important role. Claimants for damages for personal injuries may recover for the loss of a future chance (say of advancement at work) or the burden of a future danger (say of contracting epilepsy). In the law of crime, a man may be sentenced to a term of imprisonment, and it may be life imprisonment, longer than would be justified by considerations of retribution or deterrence; its justification consists in the unpredictable future risk which he presents of danger to the public. Our asylum law is about the http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 32/113