9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) avoidance of risk of persecution. Legislation concerning the disclosure (in some circumstances) of unproved allegations of sexual misconduct has been enacted to minimise the risk of abuse of children and vulnerable adults. 159. Other instances may readily be called to mind. I refer to such cases only to show that our law is no stranger to the prevention of risk. Its processes are not limited to the allocation of legal consequences on proof of facts. This is unsurprising. The prevention of risk may be a very powerful imperative; powerful enough, in reason, to justify the imposition of legal sanctions or burdens where there is no conventional proof that this or that has happened or will happen. It is true that in the instances I have mentioned relating to personal injury and crime, a case will at least have first been proved against the defendant before he has to pay for unproved risks. He will have been shown to have been negligent, or to have committed the crime in question, according to the appropriate standard of proof. The sanction imposed upon him for the prevention of risk – additional damages, longer imprisonment – is not the whole substance of the case against him. It is for consideration whether the like is to any extent true of a person certified by the Secretary of State under ATCSA. Is the risk case effectively the whole case against him? Or, upon his appeal to SIAC, must the Secretary of State show that at least some facts, such as concrete links with a terrorist organisation, are proved against him if the certificate is to be held lawful? For reasons I shall give I am clear that the answer to that question is No; but this is merely a foretaste of the issues in the appeal. 160. Here the law's prevention of risk arises in a constitutional setting, forged by the dilemma I have described. It consists in the tension between these two constitutional fundamentals, the abhorrence of executive detention and the State's duty to safeguard its citizens and its own integrity. The first of these is in large measure the business of the courts, the second the business of government. We must see how far the fact of these different domains itself informs the resolution of the issues in the appeals. 161. However the appeals also involve a further, no less important, constitutional fundamental. Its essence consists in another abhorrence: the abhorrence, in any civilised community, of the use of torture. Concretely, the question is whether SIAC is obliged to exclude from its consideration any evidence adverse to an appellant before it which may have been procured by torture or other treatment in violation of ECHR Article 3. As I shall show this question needs careful refinement. So does the reach of the constitutional principle in question. But whatever the refinements, this is by far the most important point in the case. 162. The appeals disclose a number of themes, some of which interlock. Ordinarily the starting point would be to introduce the legislation. But in this case the legislation – Part IV of ATCSA – proposing as it did to allow indefinite executive detention without trial of a criminal offence, could not be passed consistently with the United Kingdom's obligations arising under ECHR Article 5(1). Accordingly the government effected a derogation from Article 5(1) pursuant to ECHR Article 15. The terms and in particular the scope of this derogation have played no little part in the arguments deployed before us, and these are matters to which I shall have to return. The derogation's legality has been tested, and in this court upheld, in A, X, Y & others v Home Secretary. An appeal against that decision is due to be heard in their Lordships' House in October 2004. 163. In what follows I propose first to describe the derogation, by reference to the Derogation Order (made under s.14 of the Human Rights Act 1998 ("HRA")) by which the derogation was heralded in our domestic law. Then I will set out the material legislative provisions. I will next introduce the outline facts of the ten cases (and in that context I will give some account of the SIAC decisions under challenge). In dealing with the facts, it will be convenient at that stage to dispose of two particular arguments raised respectively in C and D by Mr Manjit Gill QC, leading counsel for those appellants. The argument in C requires consideration of ATCSA s.33, together with provisions made by Articles 1F and 33 of the 1951 United Nations Refugee Convention. I will explain it when I come to it. The argument in D is to the effect that the Secretary of State unfairly sought to change his case at a late stage and was wrongly permitted to do so by SIAC. Next after the facts I will articulate the remaining issues in the appeals and explain how to my mind those issues are to be resolved. THE DEROGATION http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 33/113