9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) "… By the nature of their habitual tasks they [the police or the Security Services] deal with suspicion and risk rather than proof. They acknowledge "that there may be a gap between a seemingly suspicious activity and it giving reasonable grounds for suspicion in this context which cannot be filled by inference or assessment where it could verily be filled by further investigation". 39. At paragraph 58, the Commission stated, "… It would equally make a nonsense of the Act, in relation to the grounds for belief that an Appellant was a risk to National Security, to require specific factual allegations to be proved on a balance of probabilities before account could be taken of them in a risk assessment or before they could afford reasonable grounds for the necessary belief." 40. Dealing with the role of the Secretary of State's views and the concept of deference, the Commission stated, at paragraph 63: "The judiciary had to be willing to put an appropriate degree of trust in the ability of Ministers who are publicly accountable to satisfy themselves as to the integrity and professionalism of the Security Service." 41. At paragraph 61, the Commission stated: "It is plain that the Commission has to be satisfied as to the existence of reasonable grounds for suspicion and belief for the section 25 appeals by taking account of all matters even if not proved on the balance of probability; the Rehman decision is of no assistance to the Appellants in that context." 42. At paragraph 71, the Commission stated: "It is our task under Section 25 to examine the evidence relied on by the Secretary of State and to test whether it affords us reasonable grounds for the relevant belief and suspicion; it is not a demanding standard for the Secretary of State to meet. … The Commission must be careful to ensure that such deference or recognition of expertise as is appropriate does not mean that it forswears its own obligation to be satisfied that there are indeed reasonable grounds for the necessary belief and suspicion." In Rehman it was accepted that the Secretary of State's assessment of whether, on a given state of facts, a person's presence is a risk to national security is entitled to considerable deference (Lord Slynn at paragraph 26, Lord Hoffmann at paragraph 54). 43. Mr Gill submits that the Commission have applied too low a test. They have relieved the Respondent of any burden of establishing facts underlying the suspicions and beliefs. They have regarded a speculative state of mind of conjecture or surmise as sufficient. A rigorous, disciplined and structured approach is required of the Commission, it is submitted. Otherwise, the Secretary of State has too great a room for manoeuvre. To place a limit on the power of the executive to deprive a person of liberty, an analysis of the reasonableness of the Secretary of State's conduct is required. While citing it, the Commission failed to apply the principle stated by the European Court of Human Rights (ECtHR) in Murray v United Kingdom [1994] 19 EHRR 193, paragraph 56, that "the level of deprivation of liberty at risk may also be material to the level of suspicion required". The highest level of suspicion was required and exacting standards should have been applied, it is submitted. An approach culminating in the statement that "it is not a demanding standard for the Secretary of State to meet" was in error. 44. It is the impossibility of removing people lawfully which creates the need for the derogation and the 2001 Act. What would otherwise be a breach of Article 5 is rendered lawful by Part 4 of the 2001 Act but, in each case, it must be shown that certification is a strictly necessary measure by way of response to the emergency threatening the life of the nation. That confirms the need for extremely anxious scrutiny when Section 21 powers are exercised, it is submitted. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 11/113