Case No: FC3 1998/7436/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 28 January 2000
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte ABDULLAH TURGUT
I agree with the judgment of Simon Brown LJ. In particular, I agree with him
for the reasons which he gives that the courts under our law, even in article 3
cases, are not the primary fact finders. That undoubtedly is the traditional
approach to judicial review. Recently Parliament has enacted the Human Rights
Act after much debate. That Act comes into force next October. In those
circumstances I would not consider it appropriate, even if it is open to us, to
develop the law in this area in the meantime.
Adopting that approach, I also have anxiously considered the material which is in front of us. On the balance of the evidence it seems probable that, upon return to Turkey without any papers,
1. he would be detained and interrogated at length;
2. it would be established that he had left the country, did not have any papers, was a Kurd, and had left in order to evade military service;
3. he would be imprisoned in a military prison and
4. he would thereafter have to do his military service.
I incline to the view that if the Secretary of State had originally concluded that nobody facing expulsion to Turkey faced a real risk of treatment contrary to article 3 such a conclusion would have been perverse. But there has undoubtedly been an improvement and the risk of ill treatment differs from category of person to category of person. The crucial question upon which the Secretary of State had to make up his mind was whether substantial grounds had been shown for believing that Mr Turgut, if expelled to Turkey, would face a real risk of being subjected to treatment contrary to Article 3. I share My Lord's view that the Secretary of State was not perverse in concluding that he would not, albeit that I consider that he would not have been perverse had he come to the opposite conclusion. In those circumstances there are no grounds for intervention by this court.
I add a postscript about a procedural matter of general interest. One of the things which troubled members of the court in the preliminary stages of this case was the fact that in this case, which is typical of many others, the Secretary of State, the applicant and the court have been faced with a stream of evidence and counter evidence with the result that, as My Lord records, the total evidence now comes to more than 1500 pages. I wish to record my indebtedness both to the advocates for the parties who carefully took us to the salient passages and to Michael Fordham who appeared as an amicus curiae at the invitation of the Master of the Rolls to help us clarify what should be the approach of this court in such cases. In his admirable written submissions Mr Fordham collated and summarised the received learning on this topic and his summary met with no adverse criticism from anyone. The position is as follows.
The guiding principle is that the Secretary of State has undertaken not to send someone from here to a country where there are substantial grounds for believing that he would be at real risk of facing treatment proscribed by Article 3. If an applicant for permission to move for judicial review claims that the Secretary of State's decision is vitiated by some form of illegality he will file evidence to that effect. The Court will not shut out evidence which is relevant to the issues. Indeed, it may order disclosure of evidence necessary for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision. This was the unanimous view of the House of Lords in R v SSHD, ex p. Launder  1 WLR 839 at 860H-861B.
The application for permission to apply for judicial review will come first to the High Court and, if refused, may then be renewed before the Court of Appeal. The approach of each of these courts to the reception of evidence on such an application will be the same. What quite often happens is, that although the application for permission is in theory ex parte, the Secretary of State asks permission to put before the court evidence seeking to explain and justify his original decision. Such permission is frequently given. Sometimes the Secretary of State will seek permission to adduce evidence to the effect that he has considered the evidence filed by the applicant and that he has made a new, second, decision in the light of that evidence. Where that new decision is in favour of the applicant the case is usually disposed of by consent. Where however the second decision is to the same effect as the first decision and the applicant challenges the legality of the second decision the question then arises as to what is the proper approach of the court. Further litigation on the first decision will generally be pointless. In general it will be convenient to substitute the second decision for the first decision as being the decision challenged in the proceedings. The applicant may apply for permission to amend his application for permission so as to substitute the new decision and generally the court will grant such an application.
Sometimes, as in the present case, it happens that fairness requires that a significant amount of time will be required to enable one party to answer the evidence of his opponent. Since his situation or the situation in the country of intended deportation may well be changing, this may cast a new light on matters. In those circumstances it can happen, and did happen in the present case, that new evidence comes to light and, on that evidence being considered by the Secretary of State, he makes a third decision and indeed a fourth and fifth decision. The principles which guide the approach of the court to these further decisions will be the same as those set out above.
Once permission to apply for judicial review has been given, the principles in relation to the admission of evidence before the court of trial are the same as indicated above. That is so whether the court of trial is, as is usual, the High Court or whether, as happened in the present case, it is the Court of Appeal - this court having granted permission to move and reserved the trial of the matter to itself. This court will not usually reserve the trial of the matter to itself since such a trial in principle is a matter for the High Court which has more judicial resources available to examine the evidence.
If the trial takes place before the High Court and either party seeks to appeal, the principles governing the admission by the Court of Appeal of new evidence are different. At that stage it will not usually be appropriate for an attempt to be made before this court to substitute a new decision for the old and to litigate the legality of that new decision before this court. That is because in principle this court is a court of appeal not a court of trial. The normal rules governing the reception of evidence on appeals will normally apply. However, this court will in exercising its discretion bear in mind the passage in Launder to which I have already referred.
LORD JUSTICE THORPE:
I have had the advantage of reading both judgments in draft and I am in complete agreement with my Lords.