9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 208. Three principal arguments were advanced by the appellants. I have already foreshadowed one, namely that relating to evidence obtained by means of torture or other ill-treatment in violation of ECHR Article 3. I will call this the torture issue. The second was that SIAC applied an insufficiently rigorous standard of scrutiny, of the facts and of the Secretary of State's case, in the exercise of its appellate function under ATCSA s.25. I will call this the scrutiny issue. The third was that SIAC misdirected itself in law as to the scope of the derogation under ECHR Article 15. I will call this the derogation issue. Mr Emmerson had the principal carriage of the torture issue; Mr Gill the other two. I must of course explain the nature and the basis of all of them. 209. In addition to the specific arguments in C and D with which I have dealt, there remain three further matters. One is the jurisdiction issue to which I have referred in setting out the facts in Ajouaou, and which arises also in F: did the Secretary of State's revocation of the certificates of those appellants, after they had left the United Kingdom, undercut the whole s.25 apparatus, so that there was nothing left against which to appeal and accordingly no jurisdiction to continue the appeal process? The second is a submission by Mr Gill that SIAC should have required of the Secretary of State higher standards than it did in two areas: the investigation of what were referred to as "obvious lines of enquiry", and the disclosure to appellants or to the special advocates (as appropriate) of potentially relevant unused material. The third is a submission, also advanced by Mr Gill, to the effect that the Secretary of State was required to undertake positive investigations, in the case of any prospective detainee, as to whether any other country was prepared to receive him before his detention could be justified on the footing that he could not be removed from the United Kingdom. 210. I find it most convenient to deal first with the derogation issue, the scrutiny issue and the torture issue in that order, and the three further points thereafter. THE DEROGATION ISSUE 211. The proposition advanced by Mr Gill at paragraph 54 of his skeleton argument is that SIAC misunderstood the scope of the derogation made under ECHR Article 15, drew it too widely, and in consequence held that "it caught persons who cannot fairly be said to [be] within the scope of the derogation". More concretely the submission is (I summarise) that SIAC wrongly accepted that a person's suspected connection with a loose unorganised group not directly linked to Al Qa'eda would in principle suffice to bring him within the reach of certification under ATCSA s.21(2)(b) or (c) read with s.21(3). In short, SIAC adopted too broad an approach to the sense to be given to the term "international terrorist group". In its open generic judgment SIAC articulated the argument as it had been advanced by one of the special advocates, Mr Macdonald QC: "105…. In order for the necessary link to the public emergency to be made, it was… necessary for the Respondent to show that there was a common aim, the aims of Al Qa'eda, which the Appellants pursued. The fact that there might be some evidence of some association with Al Qa'eda of which an Appellant might have been aware, was insufficient to show the connection to the public emergency; that required the pursuit of the common purpose. That could only be shown by evidence of material assistance and support for the core Al Qa'eda aims. Association with someone who was associated with someone who was connected with Al Qa'eda was not enough. There had to be support in terms of the threat to the United Kingdom; so if there was support for Al Qa'eda in conflicts in Chechnya or for other national purposes e.g. the change of regime in Algeria to an Islamic one, that could not provide the necessary link to the threat to the United Kingdom or the suspicion of one. The core aims of Al Qa'eda could be seen in the 1998 fatwa, which went beyond the encouragement to terrorism which was seen in Bin Laden's 1996 Declaration of Jihad against the US. It was in the 1998 fatwa 'Jihad Against Jews and Crusaders', addressed to all Muslims, that he ordered the killing of Americans and their allies, civilians and military, in any country in which that could be done. It was support for this global jihad, with indiscriminate killings as its aim, which had to be shown through membership of or support for a group which subscribed to the aims and to the means of that fatwa." http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 51/113