9.11.2017
A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004)
imminent threat to national security from terrorist activity connected with Al-Qa'eda, to justify taking
the drastic step of passing Part 4 of the 2001 Act and derogating from ECHR to the extent (and indeed
for the reasons) identified in the Derogation Order.
333. The inevitable tension, indeed conflict, between two fundamental rights, the right of every individual
not to be detained by the UK government without due process, and the right of every individual to
expect the government to protect the security of the realm, must inform the consideration of all
arguments concerning the construction and application of the 2001 Act.
334. Secondly, as I have already mentioned, this is not the first time that the Court of Appeal has had to
consider Part 4 the 2001 Act. In A -v- Secretary of State the Court of Appeal held that the derogation
effected by the Derogation Order did not infringe ECHR Article 14 (reversing SIAC on that issue).
The Court of Appeal also held that, at least on the arguments raised in that case, proceedings before
SIAC and detention adopted by the 2001 Act did not contravene ECHR. That decision is under appeal
to the House of Lords.
335. In paragraph 44 of his judgment, Lord Woolf referred to "the deference which should be extended to
the executive on matters of national security", - as to which see also the fuller comments of Lord
Hoffmann in Secretary of State for the Home Department -v- Rehman [2003] 1 AC 153 at paragraphs
50-54. Lord Woolf also mentioned the threat identified by the United Nations Security Council "to
international peace and security" requiring all states to take measures "to prevent the commission of
terrorists attacks, including by denying safe haven to those who finance, plan, support or commit
terrorist attacks".
336. As Lord Woolf made clear in paragraph 42 of his judgment, Part 4 of the 2001 Act could only be
invoked by reference to what Brooke LJ referred to as:
"The terms of the derogation. This refers in terms to the threat to international peace and
security identified by the terrorist attacks on 11 September. In other words it identifies a
threat posed by Al-Qa'eda and its associated networks (and no-one else)" (at paragraph
98).
337. I should also refer to paragraph 57 of Lord Woolf's judgment, where he considered the impact of
ECHR Article 6. He rejected the contention that proceedings before SIAC were criminal, saying that
"they are civil proceedings within Article 6". He went on to say:
"The proceedings before SIAC involve departures from some of the requirements of
Article 6. However, having regard to the issue to be inquired into, the proceedings are as
fair as could reasonably be achieved."
338. In M -v- Secretary of State, after an inter partes hearing, the Court of Appeal refused permission to the
Secretary of State to appeal a decision of SIAC made under s25. Lord Woolf, having said in paragraph
2 that "SIAC is a superior court of record", then stated, in paragraph 11, consistently with his and
Brooke LJ's observations in A -v- Secretary of State, that:
"It is not enough that the person detained may have connections with a terrorist
organisation. It must be a terrorist organisation which has links with Al-Qa'eda."
339. In paragraphs 9 and 16 of his judgment, Lord Woolf said this:
"9. It will be observed that s25 refers to what SIAC considers the position to be. If SIAC considers
'there are no reasonable grounds for a belief or suspicion' then SIAC must cancel the certificate.
Similarly, it must do so if it considers that the certificate should not have been issued.
…
16. 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 reached against all the circumstances in
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html
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