9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 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 the individual's rights. Although, therefore, 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." 340. At paragraph 34(iv), Lord Woolf concluded: "This is not a case in which SIAC over-ruled the decision of the Secretary of State. SIAC had to come to its own decision on the material which … was tested in a way which it could not be tested before the Secretary of State." 341. With those introductory observations, I turn to the issues of construction identified in paragraph 291.i)above. The ambit of s25(2)(a) and (b) of the 2001 Act 342. At least on the face of it, the meaning of s25(2)(a) of the 2001 Act presents no real difficulty. It is expressed unambiguously in the present tense, which, in the absence of very cogent reasons to the contrary, strongly suggests that SIAC must consider for itself whether there are "reasonable grounds", and that it must judge that question by reference to all the material put before it at the date of the hearing. In other words, it is not to carry out the exercise by considering only the material available to the Secretary of State when he issued the certificate. SIAC is entitled, indeed bound, to take into account all the material available at the date of the hearing, which may include fresh material which assists the case of the appellant or that of the Secretary of State, which was not available to the Secretary of State, and may not even have been in existence, at the time he issued the certificate. 343. My view that that is what s25(2)(a) means is reinforced by the identical wording of s26(5)(a) of the same Act, which must be intended to refer to the material before SIAC at the relevant time. It was not suggested on behalf of any of the parties that s25(2)(a) could be read in any other way. Indeed, in light of what Lord Woolf said in paragraphs 9, 15 and 34(iv) of his judgment in M -v- Secretary of State, I do not think it would be open to this court to reach a different conclusion. 344. There is greater difficulty about the meaning of s25(2)(b). It appears to have been accepted by all parties, and indeed by SIAC, that, if SIAC concluded that the Secretary of State did not have the necessary belief and suspicion to satisfy s21(1), when he issued a certificate, SIAC would be entitled, indeed, in light of the mandatory opening wording of s25(2), obliged, to cancel the certificate, and that this would be SIAC's obligation even if it was satisfied that, by the date of the hearing, there was material giving rise to "reasonable grounds". That is because s25(2) requires cancellation of a certificate if either of its paragraphs is satisfied. 345. I must confess to having doubts about that proposition. It can be said to overlook the word "other" in s25(2)(b), and it leads to somewhat impractical results. The word "other" in s25(2)(b) indicates that s25(2)(a) is to be treated as representing a "reason the certificate should not have been issued". I accept that s25(2)(a) does not strictly satisfy that requirement, because it requires consideration of the grounds by reference to material available at the date of the hearing. However, what the word "other", at least arguably, shows is that the legislature intended the question of "reasonable grounds" for the issue of the certificate to be considered by reference to material available to SIAC at the date of the hearing, and that s25(2)(b) is concerned with reasons other than the existence of such reasonable grounds. On this basis, s25(2)(b) may have pretty limited application, but it was presumably included in the 2001 Act, in the light of the draconian effect of a s21 certificate, to ensure that any abuse of power by the Secretary of State in issuing such a certificate (other than being unable to satisfy SIAC that there are reasonable grounds) could be raised to challenge the certificate. 346. SIAC pointed out that, if a certificate was revoked because there was insufficient material to found "reasonable grounds" at the time the certificate was issued, there would be nothing to prevent the Secretary of State from issuing a further certificate on the basis that the more extensive material before SIAC now justified its issue. While I accept that that is possible and logical, it seems to me to be http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 81/113