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