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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> XX v Secretary of State for the Home Department [2012] EWCA Civ 742 (15 June 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/742.html Cite as: [2012] EWCA Civ 742, [2012] WLR(D) 177, [2012] 4 All ER 692, [2013] 2 WLR 178, [2013] QB 656 |
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ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
Mr Justice Mitting
, Miss E Arfon-Jones and Mr S Parker
(SC/61/2007), BAILII: [2010] UKSIAC 61/2007
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RICHARDS
and
LORD JUSTICE DAVIS
____________________
XX |
Appellant |
|
- and - |
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Secretary of State for the Home Department - and - JUSTICE |
Respondent Intervener |
____________________
Robin Tam QC and Kate Grange (instructed by The Treasury Solicitor) for the Respondent
Anuja Dhir QC and Cathryn McGahey (instructed by the Special Advocates' Support Office) appeared as Special Advocates
JUSTICE made a written intervention settled by Eric Metcalfe (instructed by Herbert Smith LLP)
Hearing dates : 5-6 March 2012
____________________
Crown Copyright ©
Lord Justice Richards :
Introduction
SIAC's open judgment
The national security case against XX
SIAC's findings on article 3
"Mr XX is believed to have attended a training camp in the United Kingdom run by a person who has subsequently been charged with offences under theTerrorism
Act in relation to the provision of terrorist training.
Mr XX is also assessed to have participated in terrorist training in Somalia and is linked to individuals involved in the failed terrorist attacks in London on 21 July 2005.
Given his participation in terrorist training activity and his links to extremist individuals it is considered that there is a real risk that Mr XX will become involved in terrorist activity in the United Kingdom …."
"19. … The principal circumstance in which the Ethiopian Government might have believed that he posed a threat to Ethiopians – fighting against the Ethiopian troops in Somalia – no longer existed, following the withdrawal of Ethiopian troops from Somalia. Mr Otty submits that because the Security Service has asserted that XX attended a camp in Somalia in 2005 run by Adnan Ayro, the Ethiopian police and Security Service would regard him as a serious current threat to Ethiopian interests. We do not agree. In 2007 Adnan Ayro became the first acknowledged leader of a group which has now achieved notoriety by its claim (which may be false) of responsibility for the double suicide bombings in Kampala on 11 July 2010 – Al Shabaab. He was killed by an American missile strike in May 2008. Al Shabaab fought against the Ethiopian forces in Somalia until their withdrawal in January 2009. It claims to have driven them out and has, in Mr Debebe's words, 'declared war' on Ethiopia. It is a potential source of support for the ONLF. We readily accept that if XX were to be perceived as an active member or supporter of Al Shabaab, he might be regarded as a threat to Ethiopian interests; but that perception would be based on a chain of reasoning so stretched as to be fanciful – because he was trained at a camp which was run by a man who later became the declared leader of a group which later fought against Ethiopian troops and which might now support another group which threatens Ethiopian interests, so he must be regarded as a current threat. That might provide an excuse for detaining and prosecuting him … but it could not provide a sensible reason for doing so. XX was not ill-treated when detained and interrogated in December 2006 (at a time of particular concern for the Ethiopian authorities, because that was when Ethiopian forces were first deployed in Somalia). There is no reason to believe that, as far as prohibited ill-treatment goes, he would be treated any differently now …."
"1. If arrested, detained or imprisoned following his deportation, the person will be afforded adequate accommodation, nourishment, and medical treatment, and will be treated in a humane and proper manner, in accordance with the national and international obligations of the receiving state.
2. If the person is arrested or detained, he will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. The person will be entitled to consult a lawyer promptly.
3. If the person is a civilian and is arrested or detained, he will be brought promptly before a civilian judge or other civilian official authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided.
4. Any person who is detained but who at the end of a court-supervised investigation is not charged with an offence, or is found not guilty of any offence, will be released promptly.
5. The person will have unimpeded access to the monitoring body unless they are arrested, detained or imprisoned. If the person is arrested, detained or imprisoned within 3 years of the date of his return, he will be entitled to contact promptly, and in any event within 48 hours, a representative of the monitoring body. Thereafter he will be entitled to regular visits from a representative of the monitoring body and, in the event of an allegation of ill-treatment, the monitoring body will have access to the person without delay.
…
7. If the person is a civilian and is charged with an offence he will receive a fair and public hearing without undue delay by a competent, independent and impartial civilian tribunal established by law …."
"22. … We are satisfied that it is, and will be perceived by the Government of Ethiopia to be, in its interests to ensure that the assurances are fulfilled. It would have nothing to gain and much to lose if it did not do so. So would any government dominated by the successors of those now in office. It is primarily for that reason, rather than because of the arrangements which have been put in place for monitoring compliance … that we are satisfied that there is no real risk that he would be subjected to prohibited ill-treatment by NISS or any other interrogator."
"23. …. Our judgment is that it offers a reasonable partial safeguard against breaches of the memorandum. It could not, and would not, challenge a deliberate breach by the government, but could detect and would report upon unauthorised breaches by lower ranking officials. Its usefulness in the case of XX, accordingly depends upon the reasons stated above for believing that the Government will fulfil its promises: that it is in its interests to do so."
SIAC's findings on articles 5 and 6
"27. … Mr Debebe is of the opinion that on the facts known to the United Kingdom Government and communicated to the Ethiopian authorities … XX has committed no offence under Ethiopian law. He could only successfully be prosecuted if there were evidence that he had, by his activities, participated in some way in acts directed at and hostile to Ethiopia. Mr Debebe accepted that if XX had associated with members of Al Shabaab and had undertaken training to advance the aims of Al Shabaab which were hostile to Ethiopia, he could face prosecution and conviction for crimes against the national state …. On all of the information which we have, there is, as of now, no such evidence available to the Ethiopian authorities. Accordingly, we share Mr Debebe's expressed view that the prosecution of XX would be both very difficult and very unlikely."
"28. … For those reasons, we are satisfied that there are no substantial grounds for believing that there is a real risk that he would be subjected to a trial process so flagrantly unfair that the United Kingdom could not deport him without infringing his rights under Article 6. Mr Otty accepts that Articles 5 and 6 stand together for this purpose, so that that finding would preclude any separate finding that the United Kingdom would be in breach of its obligations to him under Article 5."
"29. … The jurisprudence is tentative and obscure …. Our view, for what it is worth, is that the United Kingdom would not be in breach of those obligations if it were to deport him to face a trial in those circumstances unless the evidential foundation for his prosecution and conviction was a confession procured by torture or ill-treatment of such severity as would amount to a breach of Article 3 in a Convention state."
SIAC's conclusion
"32. Applying the yardsticks identified in BB [i.e. the case reported on appeal to the House of Lords as RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110], we are satisfied that the assurances, if fulfilled, are such that XX will not be subjected to treatment contrary to Article 3, that the assurances have been given in good faith, that there is a sound objective basis for believing that they will be fulfilled and that, by reason of the right guaranteed to XX by paragraph 5 of the Memorandum of Understanding, to contact and receive visits from the EHRComm …, the assurances are capable of being verified. (If he is detained and no contact occurs, it will be obvious that something has gone wrong.). For substantially the same reasons, we are satisfied that the United Kingdom would not be in breach of its obligations to XX under Articles 5 and 6. Accordingly, we dismiss this appeal."
The grounds of appeal
(i) SIAC erred in law in failing to exclude evidence obtained from unofficial detention centres housing individuals held in incommunicado arbitrary detention, in particular if such evidence was obtained by the attendance of United Kingdom Security Service officers at such places of detention (ground 1);
(ii) SIAC's conclusion that there was no real risk of XX facing a flagrant breach of article 6 if returned to Ethiopia involved an irrational finding of fact as to the risk of his facing prosecution, and an error of law as to the meaning of flagrant breach (ground 2); and
(iii) SIAC's conclusion that there was no real risk of XX facing ill-treatment inconsistent with article 3, or of a flagrant violation of article 5, involved the error of law identified in ground 1, irrational findings of fact, and a failure to follow guidance of the House of Lords as to the mandatory prerequisites to be satisfied before a deportation pursuant to governmental assurances can be lawful (ground 3).
Ground 1: evidence relating to individuals held in secret detention
"But it does not follow that no evidence can be given about it except to prosecute the jailor – the effect of the application of the rule in torture cases. There is no internationally acknowledged principle – or jus cogens – prohibiting detention except in circumstances prescribed by internationally accepted laws, nor any international agreement that unlawful detention is a crime of such gravity that no evidence resulting from it – still less any evidence about it – should be admitted in proceedings before an English court. If there were such a rule, it could not be one-sided. In the illustration considered, Salim's account of his interrogation would be inadmissible as well."
"In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law."
A little later (at p.62F) he said that the courts could refuse to allow the police or prosecuting authorities to take advantage of abuse of power by regarding their behaviour as an abuse of process.
"52. … The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention …."
"87. … English law has developed a principle, illustrated by cases like [Bennett], that the courts will not shut their eyes to the way the accused was brought before the court or evidence of his guilt was obtained. Those methods may be such that it would compromise the integrity of the judicial process, dishonour the administration of justice, if the proceedings were to be entertained or the evidence admitted. In such a case the proceedings may be stayed or the evidence rejected on the ground that there would otherwise be an abuse of the processes of the court."
Ground 2: risk of flagrant breach of article 6
Risk of prosecution: (i) on the evidence before SIAC
Risk of prosecution: (ii) fresh evidence
"66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case [R v Criminal Injuries Compensation Board, Ex p. A [1999] 2 AC 330]. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
The court went on to consider the application of the principles in Ladd v Marshall [1954] 1 WLR 1489 to the admission of evidence relied on as showing the relevant mistake of fact.
Risk of flagrant breach of article 6 if prosecuted
"It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court's view that 'flagrant denial of justice' is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article."
The examples given in the preceding paragraph (para [259]) of forms of unfairness that could amount to a flagrant denial of justice were (a) conviction in absentia with no possibility subsequently to obtain a fresh determination on the merits of the charge; (b) a trial which is summary in nature and conducted with a total disregard for the rights of the defence; (c) detention without any access to any independent and impartial tribunal to have the legality of the detention reviewed; and (d) deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country.
Ground 3: risk of article 3 ill-treatment and/or flagrant violation of article 5
Article 3
Article 5
Conclusion
Lord Justice Davis :
The Master of the Rolls :