9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 49. Reading the relevant part of the judgment as a whole, I am not persuaded that the Commission applied the wrong test under Section 25(2)(a) or in its consideration of Section 21(1) powers. The members approached the evidence on the correct basis. I regard the expression "not a demanding standard" in paragraph 71 as unfortunate but in using it, the Commission were in my view, making a comparison with standards by which facts are proved in judicial proceedings and were not departing from the statutory test. They wished to emphasise that the standard is a different one from that applied in ordinary litigation which is routinely concerned with finding facts. The context is different but, as Lord Hoffmann stated in Rehman: "it is a question of evaluation and judgment" and "the concept of a standard of proof is not particularly helpful". All the circumstances must be considered and, while in some situations specific acts must be proved, what matters is the "assessment made of the whole picture". 50. In their conclusions, at paragraph 253, the Commission stated: "Individual pieces [of intelligence or assessment] in isolation might be said to show little or nothing but should not then individually be laid aside and ignored. They should be looked at in the light of all the evidence; the individual pieces may then be seen to be part of a wider picture or to show a consistent pattern of significance. Likewise, we accept that a close and penetrating analysis of the material including the assessments and inferences is required, as the Appellants' advocates submitted". 51. The overall fairness of proceedings before the Commission was considered by Lord Woolf CJ in A & Ors, at paragraph 57: "The proceedings before the Commission involve departures from some of the requirements of Article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in Article 6, is given due weight, I am satisfied there is no contravention of that article." 52. I find no error of approach. The effect of the derogation 53. The second submission, also made on behalf of the Appellants by Mr Gill, is that the Commission erred by misunderstanding the scope of the derogation achieved by the 2001 Order. It drew the scope of the derogation too widely so as to render persons liable to certification who were not within the scope of the derogation. 54. The scope of the derogation was considered in this court in A and Ors. I have cited a passage from the judgment of Lord Woolf CJ. Both Brooke LJ and Chadwick LJ expressed agreement with Lord Woolf that the Secretary of State may not lawfully issue a certificate under Section 21 unless empowered to do so under the terms of the derogation. The Appellants rely on the further statement of Brooke LJ, at paragraph 98: "This [derogation] refers in terms to the threat to international peace and security identified by the terrorist attacks on 11 September. In other words it identifies the threat posed by Al Qa'eda and its associated networks (and no-one else), and the Secretary of State has put the matter beyond doubt by the way his authorised witness explained to the Commission the factors that lead him to identify a public emergency threatening the life of the nation". 55. The point arises because, under Section 21(1) of the 2001 Act, the Secretary of State must reasonably suspect, if he is to issue a certificate, that the person is a "terrorist". Terrorist is defined in the Section http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 13/113