9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) benefit of advice from their respective lawyers, or being able to establish, by various possible different means, that full disclosure has not taken place. 533. Quite apart from the assurances that we have been given by experienced and respected counsel, instructed by and in the presence of representatives of the Treasury Solicitor, there is nothing in the voluminous documentation, or as a result of cross-examination or any other source, which leading and junior counsel (including Special Advocate) and the two firms of solicitors instructed by the various appellants, have been able to put forward to suggest that the Secretary of State's disclosure has been partial or incomplete. 534. In saying this, I do not underestimate the difficulties in which an appellant finds himself in a case such as this, and the inevitable suspicion which many such appellants may have. However, even in litigation as sensitive as a s25 appeal, with all its unusually harsh features so far as an appellant is concerned, it seems to me that, while an appellant is entitled to expect the court to consider any complaint about disclosure particularly carefully, there is no alternative to the normal approach to disclosure. 535. Secondly, there is a complaint that, in one case, SIAC permitted the Secretary of State to change his case, in the sense of identifying the nature of the group and connection alleged against a particular appellant, rather late in the appeal. In my view, while proper regard must of course be had to the harsh consequences of an appeal failing, and the difficulties which an appellant has to face in light of the inquiry SIAC has to carry out on a s25 appeal, the question of whether or not to permit the Secretary of State to amend his case is classically a matter for SIAC's discretion. In the present instance, I have not heard any argument or seen any evidence to support the proposition that any relevant prejudice was suffered by the appellant as a result of the Secretary of State being permitted to amend his case. In my view, that factor alone is enough to dispose of the appeal on this point. 536. Finally, there is a complaint that, at least in the case of some of the appeals, the Secretary of State ceased gathering evidence well before the hearing. I accept that, particularly in the case of a person whose s21 certificate has not lapsed or been revoked, one would normally expect the Secretary of State to be seeking to compile evidence which bears on the question of whether or not there are "reasonable grounds" under s25 in relation to that person. First, by virtue of ss25 and 26, the question of reasonable grounds in relation to that person from time to time will have to be considered quite frequently by SIAC. Secondly, there must be almost a moral duty (and probably a legal duty as well) on the Secretary of State to take some steps to keep himself satisfied that there are grounds for continuing detention of that person pursuant to s21 of the 2001 Act. 537. Nonetheless, the fact that, in a particular case, the Secretary of State may not have any recent relevant evidence in relation to a particular person cannot mean, as a matter of law, that SIAC cannot be satisfied of the existence of present reasonable grounds sufficient to satisfy s25 of the 2001 Act. In each case, as I have already said, the question of whether that test is satisfied depends on SIAC's assessment of all the relevant facts available to it. I do not see how it can be said, save in the most extreme cases, that the fact that there was no relevant recent evidence can of itself mean that it is not open to SIAC to find that there are reasonable grounds sufficient to satisfy s25. 538. Accordingly, I would reject the three specific complaints upon which it is said that some or all of the appellants did not have a fair hearing in relation to their respective s25 appeals. Conclusion 539. In these circumstances, at least for my part, I would reject all the points raised by the appellants, save that: I would hold that, in an appeal under s25 of the 2001 Act, it is not open to SIAC to receive in evidence, or to take into account, a statement sought to be adduced by the Secretary of State, if that statement was made under torture, and this applies whether the statement was made by the appellant or a third party, and irrespective of the identity of the torturers; http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 112/113