9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) translated into support or assistance for a group. In fact, shortly after the conclusion of the appeal hearing which included D's case, the President of SIAC telephoned leading counsel for the Secretary of State to indicate that he felt that disclosure should be made to D and his advisers about aspects of the closed submissions on behalf of Secretary of State. That was done. On 5 August 2003 the Treasury Solicitor wrote to D's solicitors stating in terms that it was part of the Secretary of State's case that "… Beghal was a leading member of a terrorist network linked to Al Qa'eda", and that "[D] was a member of and/or had links to this network…". Extensive written representations were put in on D's behalf. It was submitted by Mr Gill (supported as I understand it to some extent by Mr Blake) that the admission by SIAC of this new case, if it was such, was irretrievably unfair to D, who would be deprived of a proper opportunity to test it. Before us Mr Gill repeated this argument. He went so far as to submit that the Secretary of State had perpetrated an abuse of the process which had "irretrievably compromised" the proceedings. 206. I have to say I think this point is a conspicuously bad one. It was comprehensively dealt with in SIAC's open generic judgment. I can do no better than cite these passages: "298… In these cases it has been clear from even the earliest material that the group or groups referred to in the letter [sc. explaining the decision to certify] do not constitute the complete expression of the Respondent's case… We do not think that Mr Blake and Mr Gill have a sound point of appeal to us as a matter of principle, even if the Respondent does change the basis or the emphasis of the case upon which he maintains that the certificate should be upheld. After all, it is universally agreed in relation to those detained that the Commission has to judge matters on the evidence before it as at the date of its decision. Indeed it is only realistic for them to deal with the case as it is in fact mounted by the Respondent at the hearing because, as Mr Blake recognised, the Secretary of State could re-certify on the changed basis… 299. The real issues are whether there has been a change which Appellant D has not had a proper chance to address in open or closed sessions and whether the changed basis or emphasis is sound on its merits. It is plain that there has been a change to some extent revealed in the Respondent's closed closing submissions. He continues to place reliance on the GIA, but, perhaps in recognition of the open evidential problems as to the current activities of the GIA itself and the absence of current organisational links to Al Qa'eda, has sought to show the links to an international terrorist group which is related to the public emergency, by elevating the associates of Beghal into a group which qualifies under the Act and the emergency. There is no doubt that D's association with Beghal formed a significant part of the case against him in open evidence. Mr Blake does not complain that he has been unable to deal with any closed material relevant to this point; his complaint is about the fact that there has been an additional emphasis on what hitherto had not really identified as a group as such. Likewise, Mr Gill and Appellant D himself have been able to deal with the association asserted between him and Beghal, and any other members of what the Respondent characterises as the group, both as to the nature and the significance of any associations with D or between Beghal and those others. He has been able to deal with the notion of a loosely co-ordinated network of mainly North African radical Islamists with anti-western terrorist agenda. Mr Gill refers to crossexamination and evidence which he was unable to provide; no particular aspect was identified. We do not regard this as a realistic point." 207. I have heard nothing which begins to refute this reasoning. If anything, SIAC took a position too favourable to Mr Gill's argument. Mr Burnett's skeleton argument (paragraph 10.4 ff) deploys material, from the Secretary of State's amended First Open Statement onwards, which demonstrates the Secretary of State's reliance on links between D and Beghal who had, to put it at its lowest, international terrorist connections. I will not lengthen this judgment by setting out the references. Mr Gill's only point is a barren one: that the "Beghal group" had not been so categorised at an earlier stage. I do not think it is shown that that circumstance occasioned the least unfairness to his client. THE PRINCIPAL ISSUES http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 50/113