RB (Algeria) (FC) and another (Appellants) v Secretary of State for the Home Department; OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Original Appellant and...

on appeal from: [2007]EWCA Civ 808

[2008] EWCA Civ 290

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

RB (Algeria) (FC) and another (Appellants) v Secretary of State for the Home Department (Respondent) OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Original Appellant and Cross-respondent)

Appellate Committee

Lord Phillips of Worth Matravers

Counsel

Appellant (RB):	Respondent: (RB):
Rabinder Singh QC	Robin Tam QC
Hugh Southey	Robert Palmer

(Instructed by Fisher Meredith LLP)

(Instructed by Treasury Solicitors)

Appellant: (U):	Original Respondent (OO):
Richard Drabble QC	Edward Fitzgerald QC
Raza Husain, Hugh Southey	Guy Goodwin-Gill

(Instructed by Birnberg Peirce & Partners)

Raza Husain, Danny Friedman

(Instructed by Birnberg Peirce & Partners)

Original Appellant (OO):

Michael Beloff QC	Special Advocates Counsel:
Robin Tam QC	Martin Chamberlain (RB &U)

Time Eicke, Andrew O’Connor, Alan Payne	Angus McCullough (OO)
(Instructed by Treasury Solicitors )	(Instructed by Treasury Solicitors’ Special Advocates Support

Office)

Interveners (Justice & Human Rights Watch) (RB & OO) Interveners (Liberty) (RB)

David Pannick QC Ian Macdonald QC

Helen Mountfield, Tom Hickman Mark Henderson, Michelle Butler

(Instructed by Herbert Smith LLP) (Instructed by Liberty)

Hearing dates:
23, 27, 28, 29 and 30 OCTOBER 2008
ON
WEDNESDAY 18 FEBRUARY 2009

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

RB (Algeria) (FC) and another (Appellants) v Secretary of State for

the Home Department (Respondent)

OO (Jordan) (Original Respondent and Cross-appellant) v Secretary

of State for the Home Department (Original Appellant and Cross-

respondent)

[2009] UKHL 10

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,

Introduction

1. These appeals relate to three men whom the Secretary of State for the Home Department wishes to deport on the ground that each is a danger to the national security of the United Kingdom. Each contends that the Secretary of State cannot do so because deportation will infringe his rights under the European Convention on Human Rights (‘the Convention’). RB and U are Algerian nationals. They contend that deportation to Algeria will infringe their rights under article 3 of the Convention in that it will expose them to a real risk of torture or inhuman or degrading treatment. Mr Othman is a Jordanian national. He contends that if he is deported he will face a real risk of torture or inhuman or degrading treatment contrary to article 3 of the Convention, a real risk of a flagrant breach of his right to liberty under article 5 of the Convention and a real risk of a flagrant breach of his right to a fair trial under article 6 of the Convention, so that his deportation will infringe those three Convention rights.

2. An unsuccessful appeal against the order for his deportation was made by each to the Special Immigration Appeals Commission (‘SIAC’). Appeals by RB and U against SIAC’s decisions were made to the Court of Appeal. Insofar as is material to the present appeals they were dismissed. Mr Othman’s appeal to the Court of Appeal was

allowed on the single ground that his deportation would infringe his right to a fair trial under article 6 of the Convention. I shall describe RB, U and Mr Othman collectively as ‘the appellants’, this being the status that each had before SIAC. RB and U’s appeals to the House were heard immediately before the Secretary of State’s appeal in relation to Mr Othman and a cross-appeal brought by Mr Othman. Liberty intervened in support of RB and U. The House received interventions on behalf of Justice and Human Rights Watch. There are common issues, which include issues as to the legitimacy of SIAC’s procedures, and it is convenient to deliver a single judgment.

3. In each case closed material was put before SIAC, which gave open and closed judgments. The Court of Appeal considered the closed material and also gave open and closed judgments. The Secretary of State invited us to consider the closed judgments and some closed material. We decided that it was not necessary or appropriate to do so.

Background

4. The obligations imposed by the Convention relate primarily to the manner in which signatories treat those who are within their jurisdictions. The ECtHR has, however, made it clear that the act of deportation or extradition is capable of infringing Convention obligations by reason of the treatment that the individual is likely to receive in the country to which he is deported or extradited. In Soering v United Kingdom (1989) 11 EHRR 439 the court held:

“90. It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to article 3 by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that article.

91. In sum, the decision by a contracting state to extradite a fugitive may give rise to an issue under article 3, and hence engage the responsibility of that state under the

Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”

The court went on to observe:

“The right to a fair trial in criminal proceedings, as embodied in article 6, holds a prominent place in a democratic society. The court does not exclude that an issue might exceptionally be raised under article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.”

5. In R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323 at para 9 Lord Bingham of Cornhill coined the phrase “foreign cases” to describe those cases in which it is claimed that the conduct of a state in removing a person from its territory to another territory may lead to a violation of the person’s Convention rights in that other territory. In this opinion I shall use that phrase in the same way.

6. Chahal v United Kingdom (1996) 23 EHRR 413 was another foreign case. Like Soering the Convention right that was engaged was article 3. Article 3 is an absolute right. The ECtHR made it plain that the question of whether Article 3 prevented deportation was not influenced by the ground of deportation, even if this were that the individual under threat of deportation (‘the deportee’) posed a threat to national security:

“79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from

it is permissible under Article 15 even in the event of a
public emergency threatening the life of the nation.

80. The prohibition provided by Article 3 against ill- treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.”

7. In Ullah the question was raised whether deportation of an alien could infringe the Convention because of the risk of violation of a Convention right in the receiving country where that right arose not under article 3 but under some other Convention article. The ECtHR had stated in Soering that this possibility could not be excluded in the case of article 6. This House held that it could not be ruled out not merely in relation to article 6 but in relation to articles 2, 4, 5, 7, 8 and 9. The speeches emphasised that it was only in extreme cases that it was possible to envisage these rights being successfully invoked in foreign cases. Lord Steyn ended his speech with this comment:

“It will be apparent from the review of Strasbourg jurisprudence that, where other articles may become engaged, a high threshold test will always have to be satisfied. It will be necessary to establish at least a real risk of a flagrant violation of the very essence of the right before other articles could become engaged.”

8. This comment would seem well justified by the fact that, so far as I am aware, the ECtHR has not upheld a claim in any foreign case involving articles 4, 5, 6, 7, 8 or 9. Recently, however, this House upheld a claim in a foreign case where the right engaged was that arising under article 8 – EM (Lebanon)(FC) v Secretary of State for the Home

Department [2008] UKHL 64; [2008] 3 WLR 931. By invoking articles
5 and 6 Mr Othman invites the House to break further new ground.

9. In Chahal the ECtHR held that the possibility of judicial review of the Secretary of State’s decision did not constitute the “effective remedy” required by Article 13 of the Convention. This was because the Secretary of State had based his decision on matters of national security that had not been disclosed to the deportee. The court accepted that disclosure that would harm national security could not be expected. It commented at para 142 that, where questions of national security were in issue, an “effective remedy” meant “ ‘a remedy that is as effective as can be’, given the necessity of relying upon secret sources of information”. At para 144 the court commended what it understood to be a procedure introduced in Canada:

“…a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State’s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.”

10. SIAC was created by the Special Immigration Appeals Commission Act 1997 (‘the 1997 Act’) in response to these observations. The object of that Act was to provide as effective a remedy as possible for those challenging immigration decisions that involved information which the Secretary of State considered should not be made public because disclosure would be contrary to the public interest. Amendments have been made to the Act by, among others, the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’).

11. Section 82 of the 2002 Act gives those adversely affected by immigration decisions, including decisions to deport, the right to challenge the decisions by an appeal to the Asylum and Immigration Tribunal (‘AIT’). Section 84 sets out the grounds of appeal that may be advanced. These include that removal of the appellant would be incompatible with the appellant’s Convention rights. The right of appeal to the AIT is, however, subject to the provisions of section 97 of the Act. These preclude an appeal to the AIT where the Secretary of State’s decision was taken wholly or partly on grounds of national security or wholly or partly in reliance on information which in the Secretary of State’s opinion should not be made public in the interests of national security, the interests of the relationship between the United Kingdom and any other country, or otherwise in the public interest.

12. Where an appeal against a decision is precluded by these provisions a right of appeal lies instead, under section 2(1) of the 1997 Act, to SIAC. Schedule 1 to the Act provides for the appointment of members to SIAC by the Lord Chancellor. SIAC is deemed to be duly constituted if it consists of three or more members, at least one of whom holds or has held high judicial office, and at least one of whom is or has been a legally qualified member of the AIT. In practice SIAC customarily sits in a panel of three and the third member appointed is a person with experience in security matters.

13. Section 5 of the 1997 Act gives the Lord Chancellor the power to

make rules. The following subsections of that section are of particular
relevance:

“(3) Rules under this section may, in particular –

(a)	make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,
(b)	make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him,
(c)	make provision about the functions in proceedings before the Commission of persons appointed under section 6 below, and
(d)	make provision enabling the Commission to give the appellant a summary of any evidence taken in his absence….

(6) In making rules under this section the Lord Chancellor

shall have regard, in particular, to –

(a)	the need to secure that decisions which are the subject of appeals are properly reviewed, and
(b)	the need to secure that information is not disclosed contrary to the public interest.”

14. The Lord Chancellor has made the Special Immigration Appeals Commission (Procedure) Rules 2003 (“the 2003 Rules”) pursuant to section 5. These Rules have been amended, but at the time that the appeals of RB, U and Mr Othman were heard the original Rules were in force. Rule 4, which was headed “General duty of Commission”, provided as follows:

“4(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.

(2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).

(3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.”

15. The Rules go on to provide machinery to enable SIAC to give effect to these duties. Rule 34 provides for the appointment of Special Advocates. Rule 35 provides for the manner in which the Special Advocate is to perform his function of representing the interests of an appellant to SIAC. Rule 36 provides that the Special Advocate may communicate with the appellant or his representative up to the time that he is served with ‘closed material’ but not thereafter unless authorised so to do by SIAC. “Closed material” is defined by Rule 37(1) to mean material upon which the Secretary of State wishes to rely in any proceedings before the SIAC, but which the Secretary of State objects to disclosing to the appellant or his representative. Such material may only be relied upon if a special advocate has been appointed to represent the appellant’s interests: Rule 37(2). When serving closed material upon the special advocate, the Secretary of State must also serve a statement of the material in a form which can be served on the appellant, if and to the extent that it is possible to do so without disclosing information contrary to the public interest: Rule 37(3)(c).

16. Rule 38 provides for the procedure by which the Special Advocate may challenge the Secretary of State’s objections to disclosure of the closed material. SIAC may uphold or overrule the Secretary of State’s objection. If it overrules the objection, it may direct the Secretary of State to serve on the appellant all or part of the closed material which he has filed with the SIAC but not served on the appellant. In that event, the Secretary of State shall not be required to serve the material if he chooses not to rely upon it in the proceedings.

17. The procedures laid down by these rules have been supplemented by the Secretary of State by practices which were established at the time of the appeals with which your Lordships are concerned and which have since been inserted, by amendment, into the Rules. A wide search is carried out for ‘exculpatory material’, that is, material that will advance the case of an appellant or detract from the case of the Secretary of State. Exculpatory material is disclosed to the appellant save where this would not be in the public interest. In that event it is disclosed to the special advocate. Rule 38 applies to such material.

18. Section 7 of the 1997 Act confers a right of appeal to the Court of Appeal against a final determination of an appeal made by SIAC in England and Wales “on any question of law material to that determination”.

SIAC’s decision in relation to RB

19. RB left Algeria in 1992, but did not arrive in the United Kingdom until 4 May 1995. He was granted 6 months leave to enter. Contact with him was lost until February 1999 at which point he made a claim to asylum. This had not been resolved by September 2003 when he was arrested on charges that included offences under the Terrorism Act 2000. These charges were later withdrawn. He pleaded guilty to offences in relation to a false passport and was sentenced to three months imprisonment. On release in July 2004 on the expiration of his sentence he was granted temporary admission. On 15 September 2005 he was served with notice of the decision of the Secretary of State for the Home Department to deport him to Algeria on grounds of national security, pursuant to section 3(5) of the Immigration Act 1971. He appealed against this decision to SIAC on the ground, among others, that if he returned to Algeria he faced a real risk of ill-treatment contrary to article 3 of the Convention (‘article 3’).

20. RB was arrested on 15 September 2005 after he was served with notice of the intention to deport him and remained detained until 22 April 2008 when SIAC ordered his release on conditional bail, which was not opposed by the Secretary of State.

21. SIAC held both open and closed hearings. Their decision was delivered by Mitting J on 5 December 2006 in open and closed judgments. SIAC’s first finding was that RB was a threat to national security so that it would be in the public good for him to be deported. No reasons were given for this in the open judgment. SIAC explained that the reasons could only be discerned from the closed decision.

22. SIAC then turned to deal with the issue of ‘safety on return’. Mitting J set out the test to be applied, based on Chahal: “whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to article 3 if removed to another state, the responsibility of the contracting state to safeguard him or her against such treatment is engaged in the event of expulsion”. He commented that the assessment of risk was fact-specific and had to be related to the individual applicant. He then posed the question of what part assurances given by the receiving state could play in the evaluation of the risk. This, he said, was not a question of law but he none the less observed that the ECtHR had twice taken assurances into account in answering the basic question and once attached significance to the lack of such assurances (paragraph 4).

23. Mitting J stated that assurances given by the Algerian Government were central to the issue of safety on return. He then set out four conditions that had to be satisfied if the assurances were to carry the credibility necessary to permit RB’s return to Algeria:

i)         the terms of the assurances had to be such that, if they were fulfilled, the person returned would not be subjected to treatment contrary to Article 3;

ii)        the assurances had to be given in good faith;

iii)	there had to be a sound objective basis for believing that the assurances would be fulfilled;
iv)	fulfilment of the assurances had to be capable of being verified.

The first two conditions were axiomatic. The third required a settled political will to fulfil the assurances allied to an objective national interest in doing so. It also required the state to be able to exercise an adequate degree of control over its agencies, including its security services, so that it would be in a position to make good its assurances. As to verification, this could be achieved by a number of means, both formal and informal, of which monitoring was only one. Effective verification was, however, an essential requirement. An assurance the fulfilment of which was incapable of being verified would be of little worth.

24. Mitting J then turned to consider the general situation in Algeria. This had been exhaustively summarised by SIAC in its open decision in the case of Y delivered on 24 August 2006 and SIAC accepted and adopted this in relation to RB. SIAC had found a general amelioration of a situation of insurgency in Algeria. On 14 August 2005 President Bouteflika had presented a Charter for Peace and National Reconciliation, which was implemented by an Ordonnance of 27 February 2006. Pursuant to this 2,500 detainees, including persons convicted of terrorist offences committed within Algeria, had been released. On 11 July 2006 the UK and Algeria had signed four conventions on extradition, judicial co-operation in civil and commercial matters, the circulation and readmission of persons and mutual legal assistance in criminal matters. President Bouteflika had acknowledged and approved a letter from the Prime Minister which included the statement that “this exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms…” By longstanding diplomatic convention this amounted to a commitment on the part of the Algerian government to respect those rights.

25. Nonetheless, SIAC found that there was a residual risk that RB would be at risk of treatment at the hands of the security services that infringed article 3 were it not for assurances given by the Algerian authorities. The decisive issue was the worth of the Algerian Government’s assurances in relation to RB. It was thus necessary to consider the four conditions. As to the first SIAC referred to the relevant assurances, which were as follows:

“By a note signed by Mohammed Amara, an Algerian High Court Judge seconded as personal advisor to the Minister of Justice, and under the seal of that Ministry, the Algerian authorities gave the following assurance:

“Should the above named person (RB) be arrested in order that his status may be assessed, he will enjoy the following rights, assurances and guarantees as provided by the Constitution and the national laws currently in force concerning human rights:

a.	the right to appear before a court so that the court may decide on the legality of this arrest or detention and the right to be informed of the charges against him and to be assisted by a lawyer of his choice and to have immediate contact with that lawyer;
b.	he may receive free legal aid;
c.	he may only be placed in custody by the competent judicial authorities;
d.	if he is the subject of criminal proceedings, he will be presumed to be innocent until his guilt has been legally established;
e.	the right to notify a relative of his arrest or detention;
f.	the right to be examined by a doctor;
g.	the right to appear before a court so that the court may decide on the legality of his arrest or detection;
h.	his human dignity will be respected under all circumstances.”

SIAC held that this last assurance, couched in universally understood diplomatic language, constituted an express assurance not to torture or ill-treat RB, so that the first condition was satisfied.

26. As to the second condition, SIAC held that the assurances were given in good faith, indeed there had been no assertion to the contrary.

27. Turning to the third condition, SIAC was satisfied that it was in

the long term interest of the Algerian state to comply with the
assurances given in respect of RB for the following reasons:

“(i) For the reasons set out in Y, Algeria wishes to become, and to be accepted by the international community as, a normally-functioning civil society. To give and to break a solemn assurance given to another state would be incompatible with that ambition. So, too, would be a failure on the part of Central Government to ensure that its security services, at lower levels, did not frustrate them.

(ii)  There are significant and strengthening mutual ties between Algeria and the United Kingdom: UK investment in Algeria, said to be the largest of any foreign state; the supply and purchase of gas; the exchange of security and counterterrorism information; the assistance which the United Kingdom can give Algeria in its turn towards free enterprise and the use of the English language. Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties. It is barely conceivable, let alone likely, that the Algerian Government would put them at risk by reneging on solemn assurances. Nor is there any reason to suppose that the British Government would turn a blind eye if they did. The safe and lawful return of persons found to be a threat to national security to their countries of origin is a high political priority of the British Government. If there were real grounds for believing that the assurances of the Algerian Government had been breached, the subsequent deportation of a person on national security grounds would be problematic or impossible. Further, the actions of the British Government would be undertaken in the knowledge that they would be scrutinised, in any subsequent case, by SIAC.

(iii) RB is, as Mr Tam puts it in his written closing submissions, a “small fish”, by comparison with others who have been released by the Algerian authorities or allowed to return. He will return under the watchful gaze of the British Government, the British media and of non-governmental organisations such as Amnesty International. It would make no sense for the Algerian Government to renege on its assurances or even to fail to take steps to ensure that government agents at a lower level complied with them in the case of a man such as RB.”

28. SIAC were also reassured by the absence of ill-treatment of two other Algerians who had been deported by the United Kingdom. One of these, in respect of whom similar assurances had been given, was alleged to have had involvement in terrorism (I shall refer further to these when describing SIAC’s decision in relation to U). For these reasons SIAC were satisfied that the third condition was satisfied.

29. So far as the fourth condition was concerned, the United Kingdom government had sought to persuade the Algeria Government to agree to monitoring, but had not succeeded. For reasons given in the decision in relation to Y, SIAC concluded that there was nothing sinister in this. There were other ways in which the performance of the Algerian assurances could be verified. British Embassy officials would be permitted to maintain contact with RB, if not in detention, and prolonged detention would itself be indicative of a breach of the assurances. Amnesty International and other non-governmental agencies could be relied upon to find out if the assurances were breached and to publicise the fact. Accordingly SIAC found that the fourth condition was satisfied.

SIAC’s decision in relation to U

30. U arrived in the United Kingdom on 29 November 1994 and claimed asylum. In late 1996 he went to Afghanistan, where he remained until the spring of 1999, when he returned to the United Kingdom. Asylum was refused on 27 June 2000. In February 2001 he was arrested and charged with an offence in the United Kingdom. That prosecution was discontinued in May 2001. He was released but re- arrested on immigration grounds. Within two months he was released on immigration bail but rearrested following an extradition request made by the United States of America. That request was discontinued in June 2005. On 11 August 2005 he was served with notice of the Secretary of State’s decision to deport him to Algeria on the grounds of national security, pursuant to section 3(5) of the Immigration Act 1971. Like RB, he appealed to SIAC on the ground, among others, that if he were deported to Algeria he would face a real risk of ill-treatment contrary to article 3. He was granted bail on 15 April 2008 and has remained on bail, subject to conditions.

31. SIAC was once again chaired by Mitting J and held both open

and closed hearings. Their decision was delivered on 14 May 2007 in an
open judgment and a closed judgment on the issue of safety on return.

32. On 7 November 2006 U waived his right to contest the Secretary of State’s case that he posed a threat to national security without, however, making any admissions. This enabled SIAC to deal with the question of national security without the need for a closed judgment. It suffices to say that SIAC held that there were credible grounds for concluding that U had held a senior position in a Mujahedin training camp in Afghanistan, that he had had direct links with Usama Bin Laden and other senior Al Qa’eda figures and that he had been involved in supporting terrorist attacks including the planned attack on the Strasbourg Christmas market in 2000 and an earlier plan to attack Los Angeles airport. SIAC concluded that he posed a significant risk to national security.

33. Turning to the issue of safety on return, SIAC referred to assurances given in relation to U on 2 August 2006 by the Algerian Ministry of Justice that were in identical terms to those given in the case of RB. SIAC stated that they adopted the findings made in respect of Y and RB and one other Algerian applicant, G, in respect of the state of affairs in Algeria and the reliability of assurances given by the Algerian State. They went on to explain why evidence that had been adduced on behalf of U in relation to events that had occurred in Algeria since the decision in RB did not cause them to take a different view.

34. These events related to four Algerians who had been deported to Algeria in January 2007, each of whom had withdrawn appeals against deportation. Assurances identical to those given in relation to RB and to U had been given in relation to two of them and somewhat different assurances in relation to a third. Two of the men were detained pursuant to criminal proceedings that were brought against them on their return to Algeria. Their lawyers reported to the lawyers acting for U that they had, while in their cells, heard noises that appeared to be caused by others being tortured in the vicinity. This evidence conflicted with other reports about the experience of the two men while in prison. SIAC accepted that if they had been deliberately exposed to the sounds of others actually being tortured, or pretending to be being tortured, that would be capable of amounting to inhuman or degrading treatment. SIAC were unable, however, on balance of probabilities, to conclude that such events had occurred.

35. SIAC concluded that the Algerian State had fulfilled to the letter those parts of its assurances that could be conclusively verified. While there was a possibility that two of the men might have heard the noises of others being tortured, or pretending to be being tortured, information had been available about them from a number of sources and this did not establish that there were substantial grounds for believing them to have been ill-treated. In these circumstances there were no substantial grounds for believing that U would be ill-treated if deported. His appeal was dismissed.

RB and U’s appeals to the Court of Appeal

36. These appeals were heard together with that of a third similar appellant, Y or MT. Open and closed judgments of the court were delivered on 30 July 2007: MT (Algeria), RB (Algeria), U (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 808; [2008] QB 533. The determinations of SIAC were quashed and the appeals remitted to them on closed grounds of appeal identified by the Special Advocates. SIAC rejected the remitted appeals on 2 November 2007 and applications for permission to appeal have been stayed pending the decision of your Lordships in the current appeals. In those appeals your Lordships are concerned with issues dealt with by the Court of Appeal in the open judgment in respect of which RB and U were unsuccessful.

37. The first such issue was whether it had been open to SIAC to use closed, as well as open, material in reaching their conclusions on safety on return. The court rejected the argument that article 3 imposed a procedural requirement that the appellants and their (open) advocates should see all the relevant material. They also rejected the argument that such a requirement was imposed by principles of legality and fairness under domestic law, observing that the statutory scheme made it quite plain that Parliament intended that the particular procedure of SIAC, including the use of Special Advocates, should be employed in relation to the assessment of safety on return.

38. The second relevant issue related to the jurisdiction of the Court of Appeal. At the heart of RB and U’s appeals was the contention that SIAC had erred in the significance that they had attached to the assurances of the Algerian Government. The Court of Appeal raised the question of whether they had jurisdiction to entertain this argument, having regard to the fact that the appellants only enjoyed a right of appeal on a question of law. Having heard argument the court concluded that the submissions advanced in relation to assurances went not to a question of law but to the issue of fact of whether there was a real risk that deportation would render the appellants subject to treatment proscribed by article 3. It followed that the court had no jurisdiction to entertain the attack made by the appellants on SIAC’s findings.

39. Despite this finding, the Court of Appeal considered the attack made on the weight attached by SIAC to the assurances given by the Algerian government and rejected that attack. RB and U have sought to renew that attack before your Lordships.

SIAC’s decision in relation to Mr Othman

40. SIAC’s decision in relation to Mr Othman is 136 pages in length and it will be necessary to refer to parts of it in more detail in due course. At present I shall restrict myself to the short summary that is necessary to understand the issues raised before your Lordships.

41. Mr Othman, who is also known as Abu Qatada, was born in 1960 in Bethlehem, then administered as part of the Kingdom of Jordan. He arrived in the United Kingdom in 1993, having fled from Jordan and spent some time in Pakistan. He made an application for asylum on the ground that he had been tortured by the Jordanian authorities, a claim that SIAC accepted may well be true. His claim was successful and he was granted refugee status in 1994.

42. In April 1999 Mr Othman was convicted in Jordan in his absence of conspiracy to cause explosions, in a trial known as the ‘Reform and Challenge’ case. He was one of 13 defendants. He was sentenced to life imprisonment. The case involved an alleged conspiracy to carry out bombings in Jordan which resulted in successful attacks on the American School and the Jerusalem Hotel. The trial took place before the State Security Court (‘SSCt’), a military tribunal. Evidence against Mr Othman included an incriminating statement made to the State Prosecutor by a co-defendant, Mr Abdul Al Hamasher. Mr Al Hamasher was convicted and sentenced to life imprisonment. At the trial Mr Al Hamasher and a number of other defendants sought, unsuccessfully, to have reliance on their statements excluded on the ground that they had been obtained by torture.

43. In the autumn of 2000 Mr Othman was convicted in Jordan, again in his absence, in a case known as the ‘Millennium Conspiracy’, of conspiracy to cause explosions. The case against him included an incriminating statement made by a co-defendant, Mr Abu Hawsher to the State Prosecutor. Mr Othman was sentenced to 15 years imprisonment. Mr Abu Hawsher and other defendants alleged to be more deeply implicated in the conspiracy were convicted and sentenced to death. Once again he and other defendants sought unsuccessfully to have reliance on their statements excluded on the ground that they had been obtained by torture.

44. On 17 December 2001, pursuant to section 33 of the Anti- terrorism, Crime and Security Act 2001 (‘the 2001 Act’), the Secretary of State certified that Mr Othman was not entitled to the protection of article 33(1) of the Refugee Convention because article 1(F) or article 33(2) applied to him and that his removal from the United Kingdom would be conducive to the public good. In October 2002 he was detained under the 2001 Act. He was released on bail by SIAC on 11 March 2005 and made subject to a control order, under the Prevention of Terrorism Act 2005, on the following day. That order remained in force until 11 August 2005.

45. On 10 August 2005 a Memorandum of Understanding (‘MoU’)

was signed between the United Kingdom and Jordan. This contained the
following assurances:

“7. A returned person who is charged with an offence following his return will receive a fair and public hearing without undue delay by a competent, independent and impartial tribunal established by law. Judgment will be pronounced publicly, but the press and public may be

excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

8. A returned person who is charged with an offence following his return will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

An express undertaking was given that, if Mr Othman were deported to
Jordan, the MoU would be applied in his case.

46. On 11 August 2005 Mr Othman was served with a notice of the Secretary of State’s intention to deport him to Jordan on the ground that he was a threat to national security. He was detained pending deportation and remained detained until granted bail on 17 June 2008.

47. On 24 October 2005 the Adaleh Centre for Human Rights (‘Adaleh’) signed an agreement with the United Kingdom government under which it would monitor the due performance of the obligations undertaken by Jordan under the MoU.

48. Mr Othman’s appeal to SIAC was heard over 5 days in May 2006 and the decision of SIAC, under the chair of Ouseley J, was delivered on 26 February 2007. SIAC held both open and closed hearings, the latter relating both to whether Mr Othman posed a danger to national security and to whether he could safely be returned to Jordan. SIAC delivered both open and closed judgments, but stated that the closed evidence and SIAC’s conclusions on it were reflected in the open judgment.

49. Mr Othman advanced a number of grounds of appeal before SIAC. He challenged the Secretary of State’s finding that his

deportation was justified on the grounds of national security, although he did not advance a positive case in relation to this issue. He contended that he was protected from deportation by his status as a refugee and, in particular, that article 1F of the Refugee Convention had no application on the facts of his case. He contended that his deportation would infringe his rights under articles 2, 3, 5, 6 and 8 of the Human Rights Convention and that it was an abuse of power to subject him to deportation. Not all of these contentions are pursued before your Lordships.

50. SIAC dismissed Mr Othman’s appeal against deportation. So far as concerned the question of whether his deportation was justified by interests of national security they made findings of relevance not only to that issue but to the interest that the Jordanian authorities would pay to him on his deportation. Their conclusion was that he

“… has given advice to many terrorist groups and individuals, whether formally a spiritual adviser to them or not. His reach and the depth of his influence in that respect is formidable, even incalculable. It is not a coincidence that his views were sought by them. He provides a religious justification for the acts of violence and terror which they wish to perpetrate; his views legitimised violent attacks on civilians, terrorist group attacks more generally, and suicide bombings. He may have spoken against some grosser excesses, but that does not go very far. Even if his views are sometimes couched in careful language, their import is clear to those who take notice of what he says and know how to interpret it. His views, scholarly in any conventional sense or not, are important to extremists seeking to justify violence.”

51. This led SIAC to conclude that article 33(1) of the Refugee Convention, if it was applicable, could afford Mr Othman no protection against refoulement because he was a danger to the security of the United Kingdom and therefore fell within the exception in article 33(2). In the event, however, SIAC held that article 1F(c) had deprived Mr Othman of refugee status by reason of his terrorist activity since he was recognised as a refugee. Quite apart from these considerations, SIAC found, for reasons that I shall shortly explain, that there was no real risk that Mr Othman would be persecuted if he was returned to Jordan.

52. SIAC made the following findings in relation to those arguments based on the Convention that remain relevant to this appeal. So far as article 3 was concerned, in the absence of special circumstances there would have been a risk that Mr Othman’s deportation would infringe his rights under article 3. There would have been a real risk that he would be ill-treated in custody. As it was, the fact that he would have a very high profile coupled with the MoU, and the diplomatic capital invested in it, meant that the Jordanian authorities were likely to make sure that he was not ill-treated in custody or when he emerged from it.

53. So far as article 5 was concerned, Mr Othman had argued that he would be exposed to the real risk of being detained without charge for as long as 50 days, for under Jordanian law detention without charge could be extended for that period. The MoU provided, however, that any individual detained had to be brought ‘promptly’ before a judge or other person authorised by law to determine the lawfulness of his detention. SIAC held that, in the case of Mr Othman, the likelihood was that this provision would result in Mr Othman being brought before a judicial authority within 48 hours. It was unlikely that the full 50 day period would be used. It followed that there was no real risk of a flagrant breach of Mr Othman’s right to liberty under article 5.

54. The article that caused SIAC most concern was article 6. If deported Mr Othman faced a re-trial in respect of both charges on which he had been convicted in his absence. He made two objections to the trial process that he would face. The first was that he would be tried by the SSCt and that this was not an independent and impartial tribunal nor one before which the prosecutor would be independent and impartial. The second objection was that he would be at real risk of being convicted on the basis of the statements made by Mr Al Hamasher and Mr Abu Hawsher and that these statements had been obtained by torture.

55. SIAC accepted the submission that the SSCt and the prosecutor would not be independent. The judges and the prosecutor, while legally qualified, held military rank. They were appointed by and subject to removal by the executive. The fact that the prosecutor and the majority of the judges were part of the same military hierarchy did not add to the appearance of justice or independence.

56. So far as the incriminating statements were concerned, SIAC found that there was “at least a very real risk”, albeit that they could not find that this was a probability, that these were obtained as a result of treatment by officers of the General Intelligence Directorate (‘GID’) which “breached Article 3 ECHR” and which may or may not have amounted to torture. There was “a high probability” that such evidence would be admitted against Mr Othman and that it would be of considerable, perhaps decisive, importance against him.

57. SIAC found that Jordanian law did not permit evidence obtained involuntarily to be admitted, but that the onus lay on a defendant to prove that statements made to a State Prosecutor were other than voluntary. Mr Othman would be unlikely to discharge this onus for the following reasons:

“Its judges have legal training and are career military lawyers. There is a very limited basis beyond that for saying that they would be partial, and that has not been the gravamen of the complaint. Their background may well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence.”

58. SIAC concluded that these matters had the result that Mr Othman’s trial would be unfair by the standards of Article 6:

“To us, the question comes back to whether or not it is unfair for the burden of proof in Jordan to lie where it does on this issue; we do not think that to be unfair in itself. However, this burden of proof appears to be unaccompanied by some of the basic protections against prior ill-treatment or means of assisting its proof eg video or other recording of questioning by the GID, limited periods of detention for questioning, invariable presence of lawyers, routine medical examination, assistance from the Court in calling relevant officials or doctors. The decisions are also made by a court which lacks independence and does not appear to examine closely or

vigorously allegations of this nature. It is taking these points in combination which leads us to conclude that the trial would be likely to be unfair within Article 6 because of the way the allegations about involuntary statements would be considered.”

59. SIAC held, however, that the authorities established that this was not enough to render the United Kingdom in breach of Article 6 by deporting Mr Othman to Jordan. The test was whether there was a real risk of a “total denial of the right to a fair trial”. They concluded that when the picture of the trial was looked at as a whole this test was not satisfied. Aspects of the judicial system that weighed against a finding that there would be a total denial of a fair trial included the following:

“The retrial would take place within a legally constructed framework covering the court system, the procedural rules and the offences. The civil law system contains aspects anyway which may seem strange to eyes adjusted to the common law, but which do not make a trial unfair. The charges relate to offences which are normal criminal offences rather than, as can happen, offences of a nature peculiar to authoritarian, theocratic, or repressive regimes. There is some evidence, if admitted, which would support the charges.”

“The Appellant would be present at the retrial. The trial would be in public and would be reported. Even with local media restrictions, its progress would be reported on satellite channels. He would be represented by a lawyer and at the public expense, if necessary. He would know of the charges and the evidence; indeed he already knows some of it. There would probably be a shortfall in time and facilities for the preparation of the defence on the general background evidence but the particular position of the Appellant would probably obtain for him better facilities and time than most Jordanian defendants.”

“The civil law system dossier or file does not mean that evidence cannot be challenged. It can be. The Appellant could give evidence and call witnesses, including those whose statements were in the dossier and who claim that they were involuntary. The fact that one possible witness has been executed for other offences, (not to prevent his

giving evidence for he gave evidence at the first trial), does not show the trial system or the retrial to be unfair. His evidence could impact only tangentially, it would appear, on the Appellant’s involvement. The difficulties which other witnesses may face, notably Abu Hawsher, would not make the retrial unfair.”

“The existence of a legal prohibition on the admissibility of such evidence cannot be ignored, nor the fact that the SSCt would hear evidence relating to the allegations. The role of the Court of Cassation in reviewing and at times overturning the conclusions of the SSCt on this issue is material.”

Mr Othman’s appeal to the Court of Appeal

60. Mr Othman’s appeal to the Court of Appeal [2008] EWCA Civ 290; [2008] 3 WLR 798 succeeded on one point alone. The Court of Appeal, in a judgment delivered by Buxton LJ, held that deportation of Mr Othman to Jordan would involve a breach by the United Kingdom of Mr Othman’s rights under article 6 of the Convention. SIAC had rightly held that such a breach would only arise if Mr Othman faced a real risk of a flagrant denial of a fair trial in Jordan, by which was meant the complete denial or nullification of the right to a fair trial. SIAC had, however, erred in law in concluding that this test was not satisfied. The critical factor was that the unfairness in issue related to the possible use of evidence obtained by torture. The Convention imposed a “fundamental, unconditional and non-derogable prohibition” against torture. A “high degree of assurance” was required in relation to proceedings in a foreign state before a person could lawfully be deported to face a trial that might involve evidence obtained by torture. Once there was “a very real risk” of evidence in breach of a fundamental prohibition of the Convention being adduced, it was necessary for SIAC to satisfy itself that there could be excluded the further risk that such evidence would be acted upon by the Jordanian court (paragraphs 48 to 51).

Issues in relation to Mr Othman

61. The issue raised before your Lordships by the Secretary of State’s appeal is whether SIAC’s conclusion in relation to Article 6 was correct.

Mr Othman has, however, raised by cross-appeal a number of further issues, namely:

(i) Would Mr Othman’s deportation to face a trial by a military court lacking institutional independence constitute a “flagrant denial of justice” so as to be prohibited by article 6?

(ii) Would Mr Othman’s deportation in the face of a power to detain him for 50 days incommunicado and without access to a lawyer constitute a “flagrant denial of the right to liberty” so as to be prohibited by article 5?

(iii) Can individual assurances of a receiving state be relied upon where there is a pattern of human rights violations in the receiving state?

(iv) Is it permissible for SIAC to rely on closed material when

considering the issue of ‘safety on return’?

(v) Has article 1F(c) of the Refugee Convention any application
to acts of a person after he has been granted refugee status?

The third and fourth issues are common to both appeals. There is a fifth common issue, raised by the appellants in the first appeal and by submissions advanced by Justice and Human Rights Watch in relation to both appeals. This is whether compatibility with the Convention is itself a question of law, so that on each appeal the Court of Appeal had an unrestricted jurisdiction to review the conclusion on that question reached by SIAC. I propose to consider the common issues before turning to the additional issues that arise in Mr Othman’s case. It is logical to begin by addressing the jurisdiction issue.

The common issues

The jurisdiction of the Court of Appeal

62. The right to appeal to the Court of Appeal from a final determination of an appeal made by SIAC is stated by section 7 of the 1997 Act to be “on any question of law material to that determination”. SIAC’s determination involved the following stages. (1) SIAC had to direct themselves as to the appropriate test for a breach of the relevant article. (2) SIAC had to determine the relevant primary facts. (3) SIAC

had to determine whether those facts satisfied the appropriate test. There is no doubt but that the first stage involved a question of law. It is common ground that the second stage involved questions of fact against which there is no right of appeal. The dispute relates to the third stage. The appellants contend that the third stage involved determining a question of law. The Secretary of State contends that the relevant question was one of fact.

63. The following arguments were advanced by Mr Drabble QC and Mr Singh QC on behalf of the appellants and Mr Pannick QC, on behalf of the interveners Justice and Human Rights Watch. A broad approach must be adopted to the definition of what amounts to a ‘question of law’ in order to give effect to both the object and the express requirements of the Human Rights Act 1998. The object of the Act was to ‘bring human rights home’; to ensure that human rights issues were determined within this jurisdiction rather than by the ECtHR in Strasbourg. In order to achieve this object the Court of Appeal must adopt the same approach to human rights issues as the Strasbourg Court. This obligation is also imposed by section 6(1) of the Act, which provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. The Court of Appeal is a public authority and thus has a statutory duty, when considering the proposals to deport the appellants, to ensure that their deportation does not involve any infringement of Convention rights. The judgment of the ECtHR in Saadi v Italy (application 37201/06) delivered on 28 February 2008 lays down the appropriate approach:

“In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu….In cases such as the present the Court’s examination of the existence of a real risk must necessarily be a rigorous one.”

Your Lordships were referred to a number of authorities in support of this submission.

64. Neither the Convention nor the Human Rights Act requires the Court of Appeal to adopt the approach suggested. The requirement of the Convention is the same as that where a breach of the Convention has occurred, namely “an effective remedy before a national authority” – see article 13. This was made plain by the ECtHR in Chahal, which had this to say about the requirements of article 13 in the present context:

“151. In such cases, given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State.

152. Such scrutiny need not be provided by a judicial authority but, if it is not, the powers and guarantees which it affords are relevant in determining whether the remedy before it is effective.”

65. Thus the scrutiny that is required by the national authority does not have to be done by a court. Even less does it have to be subject to an appeal to a court. The United Kingdom has gone further to protect those facing deportation than the Convention requires. In SIAC it has instituted a specialist tribunal that by its composition is peculiarly well equipped to resolve the issues of fact that arise in the context of immigration decisions that involve issues of security and to apply the relevant law to the facts found. In addition a right to the Court of Appeal has been granted in relation to questions of law.

66. By restricting appeals to questions of law Parliament has deliberately circumscribed the review of SIAC’s decisions that the Court of Appeal is permitted to undertake, so that it falls well short of the review that will be carried out if the case reaches the ECtHR, as described in Saadi. There is good reason for this. The length of SIAC’s decision in Othman’s case, and the time that it took to deliver, evidences the size of the task that a rigorous scrutiny of the material facts in a case such as this can involve. It makes sense to reserve such a task to a specialist tribunal without providing for a full merits review by an appellate court. That does, of course, mean that decisions of SIAC may be reversed at Strasbourg, either because the ECtHR makes a different assessment of the relevant facts or because additional relevant facts have come to that court’s attention. This is a possibility that Parliament has chosen to accept.

67. The submission that section 6(1) of the Human Rights Act imposes a positive duty on the Court of Appeal to carry out a full review of SIAC’s decision in order to ensure that there is no breach of Convention rights is unsound. The Court of Appeal is a creature of statute and its powers are those conferred by statute. Section 6(1) cannot be so interpreted as to require public authorities to act beyond their powers. Were there any doubt as to this it would be resolved by section 6(2).

68. This part of the appellants’ case was founded in part on the following observations of Lord Bingham of Cornhill in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167:

“In the Human Rights Act 1998 Parliament not only enabled but required the Convention rights set out in Schedule 1 to the Act (including article 8) to be given effect as a matter of domestic law in this country. It did so (section 2) by requiring courts or tribunals determining a question which had arisen in connection with a Convention right to take into account any relevant Strasbourg jurisprudence, by requiring legislation, where possible, to be read compatibly with Convention rights (section 3) and, most importantly, by declaring it unlawful (section 6) for a public authority to act in a way incompatible with a Convention right. Thus immigration officers, the appellate immigration authority and the courts, as public authorities (section 6(3)), act unlawfully if they do not (save in specified circumstances) act compatibly with a person’s Convention right under article 8. The object is to ensure that public authorities should act to avert or rectify any violation of a Convention right, with the result that such rights would be effectively protected at home, thus (it was hoped) obviating or reducing the need for recourse to Strasbourg.”

260. Fortunately it is unnecessary in the present context to explore these problems further: Mr Othman is being expelled as an undesirable alien rather than extradited to stand trial and, if returned, tried and convicted, he will plainly suffer ample deprivation of liberty to warrant consideration of his case under article 6 before he comes to be expelled. All that said, I find SIAC’s judgment on this issue perfectly clear, measured and sensible and the Court of Appeal’s criticisms of it misplaced. Essentially the Court of Appeal appears to have held that SIAC’s finding that there exists “a very real risk” of evidence obtained by article 3 ill-treatment being used in Jordan to convict the accused of itself necessarily precludes his expulsion. Strikingly, both the authorities principally relied on to support this conclusion—Jalloh v Germany (2006) 44 EHRR 667 and A v Home Secretary (No 2) [2006] 2 AC 221—were domestic cases which simply never addressed what in this context would be required to constitute a flagrant denial of justice (so fundamental a breach of the principles of fair trial as to destroy the very essence of the right) and thus prevent expulsion. True it is that in cases envisaged by the majority of the House in A (No 2), SIAC, in deciding whether to exclude evidence as probably obtained by torture, would be altogether readier than it appears the Jordanian Court is likely to be to find that the accused has discharged the burden of proof upon him (to this extent I agree with paras 60 and 61 of the Court of Appeal’s judgment). It by no means follows, however, that the anticipated process in Jordan is to be characterised not merely as one which domestically would violate article 6 (as SIAC rightly held) but as one so fundamentally inconsistent with the right to a fair trial as to bar the alien’s expulsion. One day, no doubt, a case will come before the courts where, however compelling the security interests of the state which proposes to expel an alien, those interests will fall to be sacrificed to the alien’s article 6 right not to be returned to face a flagrantly unjust trial. If, however, as the majority of the Grand Chamber held in Mamatkulov, extradition was not unlawful even in the circumstances arising there, in my judgment expulsion most certainly is not unlawful here. SIAC’s judgment on the article 6 issue is to my mind no less persuasive and sustainable than on all the many other issues which it had to address in Othman’s case.

261. I too, therefore, would allow the Secretary of State’s appeal and

restore SIAC’s decision in Othman's case and in the other case would
reject RB's and U’s appeals.

LORD MANCE

My Lords,

262. I have had the benefit of reading in draft the speeches of my noble and learned friends, Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead and Lord Brown of Eaton-under- Heywood. I am in agreement with all of your Lordships as to the outcome of these appeals, and, in view of the large measure of my agreement with the reasoning in your Lordships’s speeches, there is little that I wish to add.

263. On the issue whether it was open to SIAC to use closed material relating to the issue of safety on return, I share the view that the statute unequivocally permits this. I do not consider that anything said by the European Court of Human Rights or by the junior Home Office Minister on the third reading of the Bill (see Lord Phillips’ judgment paras 79 and 80) related to the question whether sensitive material bearing on national security might be relevant to an issue of safety on return, and might require special treatment accordingly. In my view, all that the European Court was concerned to stress in Chahal v United Kingdom (and again in Saadi v Italy) was that there was no trade-off between the extent of any threat to national security that a person might pose in country A and the extent of any risk that he might be mistreated contrary to article 3 in country B to which country A was seeking to expel him.

264. Maaouia v France establishes that deportation proceedings in respect of an alien do not as such engage civil rights or therefore article 6 of the Convention. No question arises in these cases as to the legality of any detention. What is required in this country, in respect of any risk of mistreatment contrary to articles 3, 5, 6 or 8 in the countries (Algeria and Jordan) to which RB, U and Abu Qatada are proposed to be deported, is “independent scrutiny of the claim” which is, in my opinion, provided by SIAC and the statutorily regulated or authorised procedures under which it operates. I do not consider that the use of the closed material in the present context of deportation offends against either Convention or domestic principles of fairness. Assuming that such principles required sufficient disclosure to enable RB, U and Abu Qatada to meet the case against them, I also agree, for reasons given by Lord Phillips and Lord Brown, that nothing in the House’s decision in Secretary of State for the Home Department v MB and AF [2007] UKHL 46 leads to a conclusion that such disclosure was essential or that Rule 4 must be read down to permit such disclosure, in the different context of the present cases involving a challenge to deportation.

265. On the issues of reliance on the assurances given by the governments of Algeria and Jordan, I agree with the reasoning and conclusions of Lord Phillips in paragraphs 106-126, Lord Hoffmann in paragraphs 182-194 and Lord Hope in paragraphs 235-242. On the issues as to whether in the case of Abu Qatada there is a real risk that his right to a fair trial under article 6(1) will be violated in Jordan, I agree with their further reasoning and their conclusions (that there is no real risk that his trial in Jordan would be flagrantly unfair in character, course or consequences) contained in paragraphs 133-134, 195-203 and 243-249 respectively, as well as with Lord Brown’s further observations in paragraphs 258-260. I note only that, although the European Court of Human Rights’ reasoning does not make the connection explicitly, there appears to be a considerable and to my mind unsurprising resemblance, which might in another case be worth exploring further, between the concept of flagrant unfairness adopted by the Court of Human Rights and the concept of denial of justice in public international law generally: see, as to the latter, Jan Paulson: Denial of Justice in International Law (C.U.P.; 2005). Paulson at pp 60-61 states “The modern consensus is clear to the effect that the factual circumstances must be egregious if state responsibility is to arise on grounds of denial of justice”, while adding, realistically, that “this indispensable line between fundamental violations and others” is easy to draw in some instances, but less clear in others.

266. The issue raised by Abu Qatada with regard to article 5 of the Human Rights Convention is without basis for the reasons given by Lord Phillips in paragraphs 130-132 and by Lord Hoffmann in paragraphs 205-206. The further issue he raises under the Refugee Convention is also without basis for the reasons given by Lord Phillips in paragraphs 127-129 and by Lord Hoffmann in paragraph 207.

267. It follows that I agree that RB’s and U’s appeals should be dismissed, but that in the case of Abu Qatada the Secretary of State’s appeal should be allowed, Abu Qatada’s cross-appeal dismissed and SIAC’s conclusions on the points considered on these appeals restored.