9.11.2017
A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004)
"17. SIAC is required to come to its decision as to whether or not reasonable grounds exist
for the Secretary of State's belief or suspicion. Use of the word 'reasonable' means that
SIAC has to come to an objective judgment. The objective judgment has, however to be
reached against all the circumstances in which the judgment is made. There has to be
taken into account the danger to the public which can result from a person who should be
detained not being detained. There are also to be taken into account the consequences to
the person who has been detained. To be detained without being charged or tried or even
knowing the evidence against you is a grave intrusion on an individual's rights. Although
the test is an objective one, it is also one which involves a value judgment as to what is
properly to be considered reasonable in those circumstances ..."
237. There remains, on this part of the case, Mr Gill's submission about deference. In my judgment it is
entirely without substance. I have heard nothing to undermine SIAC's reasoning at paragraph 67 of the
open generic judgment, which I have set out. Mr Gill submitted that there was a material difference
between the kind of danger to national security being considered in Rehman and an emergency
threatening the life of the nation such as has given rise to the enactment of ATCSA. I have not been
able to understand the submission that less deference should be paid to the Secretary of State (or to the
State's security experts who advise him) in the latter case than in the former. Given the loose and
amorphous nature of at least some aspects of Al Qa'eda and its associates, and therefore of the threat
they pose, I should have thought, if anything, that the opposite should be the case.
238. I would reject all of Mr Gill's arguments on the scrutiny issue.
THE TORTURE ISSUE
239. It is first necessary to establish the factual basis on which, in its determination of this part of the case,
the court ought to proceed. I have already said that the torture issue first arose in E's appeal. At
paragraph 3 of their open specific determination in E SIAC refer to certain allegations to which Mr
Emmerson had drawn attention, for example that Beghal had stated that confessions made by him had
been forced out of him and were untrue. In the same paragraph SIAC conclude:
"… [T]here is no sufficient material which persuades us that we can conclude either that
torture or other treatment contrary to Article 3 of the ECHR was used or even that it may
have been used if (which we doubt) that is the test to be adopted."
In the open generic judgment SIAC had a little more to say about what Mr Emmerson was suggesting:
"72. … He [Mr Emmerson] referred to many observations made about treatment by the
Americans at, for example, Guantanamo Bay and allegations about ill-treatment of
particular individuals such as Moazzim Begg. Thus Abu Zubaida, said to be an important
terrorist with close links to Osama Bin Laden, had suffered a bullet wound when captured
and it was alleged that he was interrogated without any treatment being given for the
wound. It might apply to the partially retracted confession of Djamel Beghal in the United
Arab Emirates."
It is plain to my satisfaction that there was no evidence in any of the appeals which should have
persuaded SIAC that any material relied on by the Secretary of State had in fact been obtained by
torture or other treatment in violation of ECHR Article 3. Nor did SIAC think there was. In those
circumstances, while I myself have said that the torture issue is by far the most important point in the
case, I have thought it right to consider whether it is a point that should properly be pursued at all. For
good reason we do not generally adjudicate upon hypothetical questions.
240. SIAC also said this in the open generic judgment:
"80. We do, however, accept that if there is material which shows that torture or other
breaches of Article 3 may have been used to obtain the information relied on, those
advising the Respondent and we must consider that material since, at the very least, it will
bear on the proper weight to be given to the information. If torture is alleged, that must be
looked into, but the material will not fall within the embargo set out in Article 15 [sc. of
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html
60/113
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