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

B e f o r e :

LORD JUSTICE SIMON BROWN
LORD JUSTICE SCHIEMANN
and 
LORD JUSTICE THORPE
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	R
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	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	
	ex parte ABDULLAH TURGUT	Applicant	
			
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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Mr A. Nicol QC and Mr. M. Henderson(instructed by  Howe & Co. of Wood Green ) for the Applicant
Mr N. Pleming QC and Mr M. Bishop (instructed by the Treasury Solicitor, London, SW1H 9JS ) for the Respondent
Mr M. Fordham (instructed by the Treasury Solicitor, London) as amicus curiae
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Judgment
As Approved by the Court

Crown Copyright ©

Friday 28 January 2000
JUDGMENT
Lord Justice Simon Brown:
	The applicant is an unmarried 30 year old Turkish Kurd who in March 1993 entered this country illegally, he says by concealment in the back of a lorry.   On 20 April 1993 he claimed asylum, a claim which was rejected by the Secretary of State on 19 January 1995 and rejected again by the Special Adjudicator on appeal on 20 March 1997.    The Special Adjudicator found him “entirely lacking in credibility”, his evidence “littered with discrepancies”, and that there was “no serious possibility that the events related by the appellant” had happened.   That the applicant is a draft evader from Turkish military service is not in doubt.   As for the rest, the probability appears to be that he entered Germany in December 1987, applied unsuccessfully for asylum there, but nevertheless managed to remain in that country for most if not all of the years prior to his arrival in the United Kingdom in 1993.   The applicant’s asylum claim in this country has now run its course:  the Immigration Appeal Tribunal refused him leave to appeal against the Special Adjudicator’s determination and against that refusal there was no challenge. 

	That, however, merely sets the scene for the present challenge, a challenge which was rejected by Carnwarth J on 22 May 1998 but which on 27 October 1998 the Court of Appeal (Lord Woolf MR, Henry and Clarke LJJ) permitted and indeed, retained for itself.   What is now impugned is the Secretary of State’s refusal to grant the applicant exceptional leave to remain, the alternative course to removing him back to Turkey as the illegal entrant he undoubtedly is.   His claim to exceptional leave rests on Article 3 of the European Convention on Human Rights - “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” - the Secretary of State having for some years past publicly undertaken not to expel someone where substantial grounds are shown for believing there to be a real risk that on return that person would face treatment proscribed by Article 3 (which for brevity’s sake I shall henceforth call Article 3 ill-treatment).

	The very fact that the applicant has been found so hopelessly wanting in credibility is what turns this challenge into the test case which both parties now recognise it to be.   It has to be put, and is put, on the unvarnished basis that any young male Turkish Kurd draft evader who is returned to Turkey as a failed asylum seeker without travel documents, will, by virtue of those facts alone, face a real risk of being subjected on return to Article 3 ill-treatment.    Although precise statistics are not available, it seems clear that many thousands of such claims for exceptional leave will turn upon its outcome;  the 60-odd challenges stayed in the Crown Office List pending its resolution represent but the tip of an iceberg.

	Two issues of fundamental importance are raised before us:
1.	Is it for this court to assume upon such a challenge the primary fact-finding role?   Must we, in other words, decide for ourselves whether on all the material before us we for our part regard the applicant (and those in like case) as subject to the risk in question?   Or are we exercising what still remains essentially a supervisory jurisdiction, heightened though our responsibilities would undoubtedly be in the context of so fundamental a human right as that at stake here?
2.	On whatever be the correct approach, how does the court assess the material before it?   Can this applicant properly now be returned to Turkey?

	Before turning to these issues, I should deal with one or two preliminary matters.   First, as all agree, the material date for the assessment of risk is the time of the court’s consideration of the case - see Chahal v United Kingdom (1997) 23 EHRR 413 at 461 where, in paragraph 97 of their judgment, the court said this:
"In determining whether it is has been substantiated that there is a real risk that the applicant, if expelled to India, would be subjected to treatment contrary to Article 3, the Court will assess all the material placed before it and, if necessary, material obtained of its own motion.   Furthermore, since the material point in time for the assessment of risk is the date of the Court’s consideration of the case, it will be necessary to take account of evidence which has come to light since the Commission’s review."

	Second, for that reason, the Secretary of State has of necessity more than once had to reconsider his assessment of risk in this case so that there are now before us no fewer than five successive decisions refusing the applicant exceptional leave to remain.    These were taken respectively on 13 March 1998, 23 October 1998 (four days before the Court of Appeal granted leave to move), 11 January 1999, 17 August 1999 and 13 December 1999.   In the result, the Court’s papers have grown ever more voluminous.   More and more reports have been assembled, more and more enquiries made.    The bundles before us now number no fewer than 1500 pages.   Whatever approach falls to be adopted, the Court’s burden is a heavy one.

	Let me next clarify by reference to the Strasbourg jurisprudence just what sort of ill-treatment Article 3 is directed to.    This I can conveniently do by reference to two cases in particular.   First, Soering v UK (1989) 11 EHRR 439 where in paragraph 100 of their judgment, the Court said this:
"As is established in the Court’s case law, ill-treatment, including punishment, must attain a minimum level of severity if it is to fall within the scope of Article 3.   The assessment of this minimum is, in the nature of things, relative;  it depends on all the circumstances of the case such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental affects and, in some instances, the sex, age and state of health of the victim."  (This formulation was repeated in Cruz Varas v Sweden (1991) 14 EHRR 1 at page 37.)

	Second, Selmouni v France (1999) 7 BHRC 1 at page 24:
"95.   The court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies.    Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. ... Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15(2) even in the event of public emergency threatening the life of the nation ...

96.   In order to determine whether a particular form of ill-treatment should be qualified as torture, the court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment.    As the European Court has previously found, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering ...

99.   The acts complained of [in Selmouni] were such as to arouse in the applicant feelings of fear, anguish, and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance.    The court therefore finds elements which are sufficiently serious as to render such treatment inhuman and degrading ... In any event, the court reiterates that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 ... 

101.   The court has previously examined cases in which it concluded that there had been treatment which could only be described as torture ... However, having regard to the fact that the Convention is a `living instrument which must be interpreted in the light of present-day conditions’, the court considers that certain acts which were classified in the past as `inhuman and degrading treatment’ as opposed to `torture’ could be classified differently in future ... It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies."

Issue 1 - the Court’s approach
	Critical to the Secretary of State’s successive decisions has been his assessment of risk.   Each time he has reconsidered this case, he has concluded that no substantial grounds exist for believing that the applicant would be at real risk of Article 3 ill-treatment if returned to Turkey.   These decisions are challenged on the ground of irrationality - the contention being that such a conclusion was not one properly open  to the Secretary of State on the facts - and the conventional approach to such a challenge is that set out in Sir Thomas Bingham MR’s judgment in R v Ministry of Defence ex parte Smith [1996] QB517 at 554:
"Mr David Pannick [for the applicant] submitted that the court should adopt the following approach to the issue of irrationality:

`The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.   But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important.    The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’

This submission is in my judgment an accurate distillation of the principles laid down by the House of Lords in Reg v Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514 and Reg v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696."

	At page 556 the Master of the Rolls added:
"It is now accepted that this issue [the impact of the Ministry’s ban on homosexuals in the armed services on the applicant’s rights under Article 8 of the Convention] is justiciable.   This does not of course mean that the court is thrust into the position of primary decision-maker.   It is not the constitutional role of the court to regulate the conditions of service in the armed forces of the Crown, nor has it the expertise to do so.   But it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power.   While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to `do right to all manner of people ... ‘"

	On this approach (which for convenience I shall call the Smith approach) it is clear that the court’s role, even in a case involving fundamental human rights, remains essentially supervisory.   It must, of course, as Lord Bridge observed in ex parte Bugdaycay, review the impugned decision (certainly in an Article 3 case) with “the most anxious scrutiny”.   But it must not adopt the role of primary decision-maker.   

	Mr Nicol QC submits, however, that, to adopt the Smith approach here would fail to satisfy the UK’s obligation under Article 13 of the Convention, the obligation to provide “an effective remedy” for those whose rights and freedoms are violated.   The common law, he therefore argues, should recognise - and if necessary develop the court’s supervisory jurisdiction to accommodate - the deeper role the court must now play.   

	Let me put aside for the moment the obvious difficulties involved in acceding to Mr Nicol’s invitation to develop the common law in such a way as to anticipate the coming into force of the Human Rights Act next October.   The critical initial question arising is whether such development is in fact needed for the fulfilment of the UK’s Article 13 obligation in a case like the present.   Let me, therefore, take a little time to examine the Strasbourg case law on this question:  the adequacy or otherwise of the Smith approach as a means of providing an effective remedy and thus satisfying the UK’s Article 13 obligation in an Article 3 case.

	The starting point is Soering v UK (1989) 11 EHRR 439, the case of a West German national who had unsuccessfully challenged the Home Secretary’s decision to extradite him to the USA to face trial in Virginia for capital murder, a trial which could expose him to the so-called “death row phenomenon”.   Soering’s complaint to Strasbourg succeeded under Article 3 but failed under Article 13.   For present purposes I need cite only paragraph 121 of the court’s judgment:
"In judicial review proceedings the court may rule the exercise of executive discretion unlawful on the ground that it is tainted with illegality, irrationality or procedural impropriety.   In an extradition case the test of `irrationality,’ on the basis of the so-called `Wednesbury principles,’ would be that no reasonable Secretary of State could have made an order for surrender in the circumstances.   According to the United Kingdom Government, a court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.   Although the Convention is not considered to be part of United Kingdom law, the Court is satisfied that the English courts can review the `reasonableness’ of an extradition decision in the light of the kind of factors relied on by Mr Soering before the Convention institutions in the context of Article 3."

	Soering was followed and applied in Vilvarajah v UK (1991) 14 EHRR 248, the case of five Tamils who were refused asylum in the UK and returned to Sri Lanka but who following return continued to suffer ill-treatment.    Their complaints to Strasbourg were in the event rejected under both Articles 3 and 13.   Mr Nicol, however, relies on one passage in the ECHR’s judgment with regard to Article 3:
"108.   The court’s examination of the existence of a risk of ill-treatment in breach of Article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of a democratic society making up the Council of Europe."

	As to Article 13 the court concluded:
"125.   It is not in dispute that the English courts are able in asylum cases to review the Secretary of State’s refusal to grant asylum with reference to the same principles of judicial review as considered in the Soering case and to quash a decision in similar circumstances and that they have done so in decided cases.   Indeed the courts have stressed their special responsibility to subject administrative decisions in this area to the most anxious scrutiny where an applicant’s life or liberty may be at risk.   Moreover, the practice is that an asylum seeker will not be removed from the U.K. until proceedings are complete once he has obtained leave to apply for judicial review.

126.   While it is true that there are limitations on the powers of the courts in judicial review proceedings the Court is of the opinion that these powers, exercisable as they are by the highest tribunals in the land, do provide an effective degree of control over the decisions of the administrative authorities in asylum cases and are sufficient to satisfy the requirements of Article 13."

	I come next to Chahal v UK (1997) 23 EHRR 413, a case heavily relied upon by Mr Nicol.   Chahal was a Sikh separatist leader who was refused asylum and whom the Secretary of State proposed to deport to India as a threat to national security here.   Following the failure of his judicial review challenge, Chahal succeeded in Strasbourg under both Articles 3 and 13.   I have already cited paragraph 97 of the court’s judgment as to the material date for the assessment of risk in an Article 3 case..  I should, however, at this stage cite also the two preceding paragraphs:
"95.   Under the Convention system, the establishment and verification of the facts is primarily a matter for the Commission.   Accordingly, it is only in exceptional circumstances that the Court will use its power in this area.

96.   However, the Court is not bound by the Commission’s findings of fact and is free to make its own assessment.   Indeed, in cases such as the present the Court’s examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one, in view of the absolute character of Article 3 and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe."

	Note the echo here of paragraph 108 of the judgment in Vilvarajah.

	With regard to Article 13 it is necessary to cite a longer passage from the Chahal judgment:
"150.   It is true, as the Government have pointed out, that in the cases of Klass and Others v Germany and Leander v Sweden, the Court held that Article 13 only required a remedy that was `as effective as can be’ in circumstances where national security considerations did not permit the divulging of certain sensitive information.   However, it must be borne in mind that these cases concerned complaints under Articles 8 and 10 of the Convention and that their examination required the Court to have regard to the national security claims which had been advanced by the Government.   The requirements of a remedy which is `as effective as can be’ is not appropriate in respect of a complaint that a person’s deportation will expose him or her to a real risk of treatment in breach of Article 3, where the issues concerning national security are immaterial.

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 needed 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.

153.   In the present case, neither the advisory panel nor the courts could review the decision of the Home Secretary to deport Mr Chahal to India with reference solely to the question of risk, leaving aside national security considerations.  On the contrary, the courts’ approach was one of satisfying themselves that the Home Secretary had balanced the risk to Mr Chahal against the danger to national security.   It follows from the above considerations that these cannot be considererd effective remedies in respect of Mr Chahal’s Article 3 complaint for the purposes of Article 13 of the Convention."

	Taking the cases chronologically (as I think is helpful), I pass next to a decision much relied upon by Mr Pleming QC for the respondent - D v UK (1997) 24 EHRR 423.   D was an AIDs sufferer whom the Secretary of State proposed to return to St. Kitts as a refused applicant for leave to enter the UK.   D’s complaint (like Soering’s) succeeded under Article 3 but not under Article 13.   Only the latter is presently relevant and I cite just two paragraphs from the court’s judgment:
"70.  In its Vilvarajah and Others judgment and its Soering judgment the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition.   It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate.   It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.

72.   The applicant maintained that the effectiveness of the remedy invoked first before the High Court and subsequently before the Court of Appeal was undermined on account of their failure to conduct an independent scrutiny of the facts in order to determine whether they disclosed a real risk that he would be exposed to inhuman and degrading treatment.   He relied on the reasoning in the Chahal v United Kingdom judgment.   However the Court notes that in that case the domestic courts were precluded from reviewing the factual basis underlying the national security considerations invoked by the Home Secretary to justify the expulsion of Mr Chahal.   No such considerations arise in the case at issue."

	I come finally to the recent judgment of the ECHR in Smith and Grady v UK (27 September 1999).   As is well known, this complaint succeeded under Article 8.   More importantly for present purposes, however, it succeeded also under Article 13.   Paragraph 138 of the court’s judgment was central to much of the argument before us:
"In such circumstances, the Court considers it clear that, even assuming that the essential complaints of the applicants before this Court were before and considered by the domestic courts, the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention.

The present applications can be contrasted with the cases of Soering and Vilvarajah cited above.   In those cases, the Court found that the test applied by the domestic courts in applications for judicial review of decisions by the Secretary of State in extradition and expulsion matters coincided with the Court’s own approach under Article 3 of the Convention."

	The first limb of paragraph 138 seems to me comparatively easy to understand.    Its opening words - “in such circumstances” - refer to various passages in the judgments both of the Divisional Court and the Court of Appeal which, as the ECHR put it in paragraph 137 of their judgment, “emphasised that, notwithstanding any human rights context, the threshold of irrationality which an applicant was required to surmount was a high one”.    That perhaps is best illustrated by reference to paragraph 38 where the ECHR make this comment on the Master of the Rolls’ judgment:
"He observed that to dismiss a person from his or her employment on the grounds of a private sexual preference, and to interrogate him or her about private sexual behaviour, would not appear to show respect for that person’s private and family life and that there might be room for argument as to whether the policy answered a `pressing social need’ and, in particular,was proportionate to the legitimate aim pursued.   However, he held that these were not questions to which answers could be properly or usefully proffered by the Court of Appeal but rather were questions for the European Court of Human Rights, to which court the applicants might have to pursue their claim."

	In effect the ECHR were saying in the first part of paragraph 138:   it is all very well to say that “the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable”;   if, however, the domestic court is prepared to regard a policy as justifiable whether or not it answers a pressing social need or is proportionate to the aims pursued, then this approach (the Smith approach) accords insufficient weight to  interference with human rights.   It is plain that by October 2000, the threshold of irrationality will have to be lowered in cases of that sort.   

	It is the second limb of paragraph 138 of the judgment, however, that is most directly pertinent to the present challenge.    And the meaning of that is rather more difficult to discern.

	Mr Nicol’s argument runs essentially as follows.   “The Court’s own approach under Article 3 of the Convention” (see the concluding words of paragraph 138) is, he says, plain.   It is that set out in paragraph 108 of its judgment in Vilvarajah and in paragraphs 95 - 97 of its judgment in Chahal:  the ECHR will rigorously examine all the material before it and make its own assessment of risk as at the date of the hearing.   That, therefore, must be the approach of the domestic court too:  only thus will it have “coincided with” the ECHR’s approach (as paragraph 138 states that it does) and so explain why the Court regards judicial review as an “effective remedy” in Article 3 cases (save, of course, in Chahal where the national security aspect of the case precluded the domestic courts from forming their own view upon it), but not in a case like Smith and Grady itself.

	Plausible though this argument appears, in my judgment it reads too much into paragraph 138.   As the cited passages from the court’s judgments show, the ECHR know full well the nature of the judicial review process and cannot be thought to suppose that the reviewing court ever adopts the role of primary fact finder.   It is one thing to say that an administrative decision to deport will be rigorously examined and subjected to the most anxious scrutiny:  quite another to say that the court will form its own independent view of the facts which will then necessarily prevail over whatever view has been  formed by the Secretary of State.

	Where, therefore, the Court in Soering, Vilvarajah and D speak of the domestic court in judicial review having the power to quash a decision “where it was established that there was a serious risk of inhuman or degrading treatment”, that can only mean “where it was established that on any reasonable view of the facts there was a serious risk of inhuman or degrading treatment,” i.e. where it was established that no rational Secretary of State could have reached a different conclusion upon the material in the case.

	This analysis of the Strasbourg jurisprudence, moreover, seems to me to gain support from the applicant’s own argument in Smith and Grady.   The ECHR note in paragraph 132 of their judgment:
"...the applicants pointed to the comments of the High Court and of the Court of Appeal as the best evidence that those courts lacked jurisdiction to deal with the substance of the applicant’s Convention complaints.   In this context, the Soering and Vilvarajah cases cited above could be distinguished because the test applied in judicial review proceedings concerning proposed extraditions and expulsions happened to coincide with the Convention test."

	I therefore conclude that the domestic court’s obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State’s decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State.   Only if it does will the challenge succeed.      

	All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State’s conclusion on the facts.   In the first place, the human right involved here - the right not to be exposed to a real risk of Article 3 ill-treatment - is both absolute and fundamental:  it is not a qualified right requiring a balance to be struck with some competing social need.    Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is placed before it.   Thirdly, whilst I would reject the applicant’s contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possiblity that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted  decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind.   In circumstances such as these, what has been called the “discretionary area of judgment” - the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant’s removal (see Lord Hope of Craighead’s speech in R v DPP ex parte Kebilene [1999] 3 WLR 972 at 993 - 994) - is a decidedly narrow one.   

Issue 2 - the Court’s assessment of the factual material
	Having regard to the massive amount of material now accumulated before the court, the composition of this part of the judgment presents daunting problems indeed.   There is simply no time (nor space within a judgment of manageable length) to deal in detail with all the many strands of both sides’ cases on the facts.    Ultimately I have thought it best - and I hope appropriate given the court’s true task on this challenge - merely to summarise in broad terms the essential nature of the material before us, to indicate the difficulties that exist in arriving at a confident judgment on the question of risk, and to state my own conclusion on the challenge.

	There is, as it seems to me, one report above all others in the papers which provides a convenient point of reference for the factual dispute:  it is recent, thorough, independent and authoritative.   I refer to the January 1999 report of Professor Sir Nigel Rodley, acting as the Special Rapporteur of the United Nations Commission on Human Rights, following a ten day visit which he made to Turkey in November 1998.   Let me quote just part of his conclusions:
"102.   As to the incidence of torture and similar ill-treatment, there was a wide disparity of views among those whom the Special Rapporteur met.   Numerous non-governmental sources insisted that the situation had not improved at all.   For them, torture was widespread and systematic, any recent changes in the law being merely `cosmetic’.   In this connection, the Special Rapporteur notes that the word `systematic’ in this context was used in at least three meanings:  first, to indicate that the practice was approved of and tolerated, if not expected, at the highest political level;  second, in the sense that it was a pervasive technique of law enforcement agencies for the purpose of investigation, securing confessions and intimidation, regardless of approval or disapproval at the higher levels of the public service or by the Government’s political leadership;  and, third, to indicate that it consisted of techniques applied, in any individual case, in a deliberate manner to break the will of detainees.

103.   The authorities propounded the view tht the situation had much improved in the previous few years (thus implicitly acknowledging that it was graver before), especially since the introduction of shorter periods of custody without access to legal advice or without being brought before a court.   For these interlocutors, the phenomenon was now confined to isolated cases that, in any event, enjoyed no official sanction.

104.   In the view of the Special Rapporteur, the reality conforms to neither of the paradigms.   He has no doubt, based upon extensive information reaching him over the years, that up to and including the first half of the 1990s, torture was practised systematically in all the senses mentioned above and on a widespread scale.   Authoritative findings of the Committee against Torture and the Council of Europe’s European Committee for the Prevention of Torture, have also buttressed this view.   However, he believes that the past two years have witnessed notable improvements.

105.   First, by and large, the new periods of incommunicado detention are being respected, thus restricting the amount of time available for the infliction of ill-treatment and the amount of time for visible signs of ill-treatment to heal.  However, there is sufficient information indicating a more than occasional practice by some law enforcement officials of detaining and torturing or ill-treating suspects without bringing them immeditely into custody.

106.   Second, possibly connected with the above, there has been a substantial reduction in the brutality of the methods used in some places.   Allegations of the use of falaka (beating on the soles of the feet), `Palestinian hanging’ (hands tied behind the back and the body suspended by the tied hands), electric shocks and rape have abated substantially in some parts of the country, notably Ankara and Diyarbakir.   On the other hand, blindfolding, the use of hosing with cold water, `straight hanging’ (suspension by the raised arms from a crossbar), rough physical treatment, sexual abuses and threats of rape, the use of grossly insulting language and the making of threats to the life and physical integrity of detainees or their families still seem rife in many parts of the country.   All of these torments are aggravated by the prolonged period of incommunicado detention still available in respect of anyone held on suspicion of involvement in (broadly defined) terrorist offences or in connection with ordinary offences involving, or thought to involve, more than two perpetrators;  this includes but is not limited to drug-related offences.   On the other hand, the worst of the practices described above still occur in some places.

107.   The improvements here described are sufficiently significant to lead the Special Rapporteur to conclude that the continuing problems cannot be attributed to a formal policy of the Government.   Indeed, he is disposed to consider the frequently reiterated official commitment to attaining European and international standards in law enforcement and the administration of justice as a reflection of an authentic political preference.   In this connection, he welcomes the information provided by the Government after the mission that it has agreed to the publication in January 1999 of the report of the European Committee for the Prevention of Torture.   In other words, he does not view the practices as systematic in the first of the three senses described above.   They may well, nevertheless, deserve that categorization in its second sense in numerous places around the country, especially if the less extreme, but still serious forms of torture or ill-treatment referred to in the previous paragraph are taken into consideration.   As far as the third use of `systematic’ is concerned, the Special Rapporteur considers this use too conducive to misunderstanding to apply it, since any incident involving sustained infliction of ill-treatment could fall within its scope.   On the other hand, the geographic spread of the allegations, the range of potential victims, as well as the number of testimonies received before and during the mission, compel a finding that the
practices referred to in the previous paragraph, in whatever specific combination, remain widespread.”

	Mr Nicol not surprisingly places great weight on this report, pointing out that even the two “notable improvements” identified by the Special Rapporteur as having occurred over the previous two years have still left in place the “widespread” practice of “the less extreme but still serious forms of torture or ill-treatment” described in the second part of paragraph 106 (described indeed as “rife in many parts of the country”).

	There are, however, certain features of the report which inevitably tend to undermine other parts of Mr Nicol’s evidence, notably (a) reports of earlier years (for example Amnesty International’s 1996 report which at one point says:  “No one who finds themselves in police custody in Turkey is safe from torture.”), because plainly the situation in Turkey is an improving one, and (b) statements made by Turkish non-governmental sources (one of the two paradigms expressly rejected by the Special Rapporteur as unreliable) such as - to take one of the many instances in the documents before us - Ms Aslan’s statement (she being a lawyer and committee member of IHD, one of the main Turkish human rights associations) in a letter to the applicant’s solicitors:
"The report you prepared is generally correct, however it is limited.   First of all, if a person is returned to Turkey without valid travel documents, the comment on that subject should be clear and definite.   Whatever way the person left the country, or for whatever reason, if their asylum application failed and they are returned to Turkey (mainly those of Kurdish origin) as soon as they arrive at the airport, the police will detain them immediately.   These people are taken to the airport police station where they are then abused, beaten and sworn at.   The police later contact the authorities in the area that the person was previously living in.   Whenever the person is returned to their residential area they are detained by the anti-terrorist branch and indiscriminately all those persons are then tortured, ill-treated and subjected to inhuman treatment.   These people are systematically tortured.   The torture and ill-treatment should be described.   Every treatment which contradicts humanity and human nature should be regarded as torture.   The words which are made against the person’s honour and personality are a form of torture.   They were beaten, stripped naked, sworn at, given electric shock and relatives were sworn at etc. are all against human nature and human beings should not be treated like this.   I would like to impress on you that all those persons returned to Turkey will indiscriminately be treated like this."

	Those points notwithstanding, one is left with feelings of inevitable disquiet about the general situation in Turkey and these, indeed, appear to be shared to some degree by the Secretary of State himself (certainly with regard to the recent past).    The Home Office’s latest Country Assessment for Turkey dated 4 September 1999 (a document of 47 pages excluding annexes) quotes a Council of Europe report of 1991 stating:
"Torture has very deep emotional and traditional roots in Turkey.   It is used as a measure of discipline, to intimidate detainees and as an interrogation method.   It forms part of a mentality of the way in which a civil servant respects his fellow citizens.    No doubt many Turks consider it as part of the criminal sanction.   In many Turkish families it is common that a husband beats his wife, a father his children.    Why should not the police do the same with criminals?"

	This too is quoted from a Special Rapporteur’s report of December 1997:
"According to the information, torture was practised against most persons interrogated by the Anti-Terror Branch of the police and gendarmerie, as well as against many persons detained by the police in ordinary criminal cases.   Torture was reportedly administered to `extract confessions’, to obtain information, to intimidate detainees into becoming police informants, or as informal or summary punishment for petty offences or suspected sympathy for illegal organisations."

	The Assessment further recognises that returned asylum seekers without documents will be subjected to “an in depth interrogation by the Turkish border police”, and that draft-evaders like this applicant “would be arrested when detected” and sentenced to imprisonment (probably for a term between six months and three years) before being required eventually to perform their military service.

	It is the Secretary of State’s case, however, that, generally speaking, none of this is likely to result in Article 3 ill-treatment.    “Everthing depends on the individual and his activities in Turkey and abroad”.   There are, Mr Pleming submits, certain features about this applicant which suggest that he would not be amongst those at particular risk of such ill-treatment.   He has had no connection with the PKK.   He is not wanted by the Turkish authorities for political crimes, for example with regard to Kurdish separatism.   He has no criminal or political record in Turkey.   He has never in the past been subjected to ill-treatment in Turkey.

	Included in the applicant’s evidence before us is a list of seventy individuals whom it is asserted over a ten year period were returned to Turkey from various European countries and then maltreated by the Turkish authorities.   Analyse these cases as one will (and the Secretary of State has clearly done his best to do so), it seems to me impossible to draw any very clear conclusions from them save only that some returnees are undoubtedly at risk of appalling ill-treatment (our papers indeed include hideous photographs of a branded back).    The real problem, of course, is in assessing the extent of this risk.    As the Secretary of State points out, the seventy cases reflect only 0.2% of the total numbers recorded as having been returned to Turkey over that period, just over 1% of the returned asylum seekers, and it is plain that many more were in fact returned than are recorded in these statistics.   There is on the other hand, I have no doubt, massive under-reporting of individual cases of ill-treatment.   No one can effectively monitor the position of all returnees and it is hardly surprising that many who are ill-treated do not choose to report the fact.   But that, although a countervailing factor, again leaves the true extent of each individual returnee’s risk a matter of conjecture.

	With these sorts of difficulty in mind the Secretary of State in May 1999 wrote to the Immigration Authorities of a number of European Union countries seeking their assistance in determining the level of risk involved in returning people to Turkey.    The letters asked “whether any country has received evidence of ill-treatment in respect of any returnee to Turkey in similar circumstances (the applicant being described as `a Kurdish draft evader who has no national documentation’) and enclosed a detailed annexe setting out `key questions’ with regard to the addressee’s own knowledge and experience of the treatment of returnees.    To take just one example of the responses to a particular question, the German authority replied in July 1999:
"2.   Is there a greater risk of ill-treatment if the rejected asuylum seeker falls into any or all of the following categories:

a)	Being of Kurdish origin does not in itself constitute a higher risk of inhuman treatment (Annex 1, Annex 3, Annex 4).

b)	Undocumented (i.e. travelling on an EU letter or similar)

A returnee who is not in possession of valid Turkish travel documents is likely to be kept in custody for an in-depth interrogation (which is to be distinguished from the routine identity check on arrival).   As a rule, the questions refer to personal data, date of and reasons for departing Turkey, possible criminal record in Germany and contacts with illegal Turkish organizations.   In some cases further inquiries will be made via other offices (e.g. prosecutor’s office, registrar’s office at the last Turkish residence of the returnee) in order to find out if the returnee is liable to prosecution for a criminal offence.   These inquiries can take from several hours up to several days, during which time the returnee will be kept in custody.   Currently available information indicate that undocumented returnees are generally not being maltreated while being kept in custody.   However, ill-treatment cannot be ruled out in cases where returnees are suspected separatists (Annex 2, p.8, 9).

c)	Liable to prosecution for draft evasion

Draft evasion is punishable by imprisonment according to the Military Penal Code (Annex 5).   Hence, a draft evader would be arrested on arrival.   In general, draft evaders, including those of Kurdish origin, are not being ill-treated (Annex 2, p.2)."

	Once again, the Secretary of State seems to me to have faithfully analysed all the responses but still been left with real difficulties of risk assessment.    Moreover, we should perhaps not overlook the fact that, despite the wide concern felt internationally about Turkey’s human rights record, the great majority of countries still continue to extradite to Turkey.    That is true of Germany, Finland, Austria, Denmark, Norway, France, Switzerland and Sweden.   Although the Dutch authorities suspended extraditions in July 1999 after the death of a rejected asylum seeker, on 10 December 1999 they resumed their policy of returning people.    Belgium now make no returns simply because of administrative difficulties.   The only countries whose policy is not to extradite refused asylum seekers are Greece and Italy.   Were this court to uphold the present challenge, it would in effect be condemning the practice followed by most European Union countries as an unlawful violation of their Convention obligations.   Although plainly we must not shrink from such a judgment if the material before us requires it, it is not one to be arrived at lightly.   Why, one wonders, if the position is as Mr Nicol submits, have not the ECHR themselves pronounced upon such a case?   There have been many thousands to choose from.   Again, however, the fact that Strasbourg has not yet received (or at any rate heard) any such complaint does not exonerate this court from its duty to decide the present application.

	I come at last to my conclusion.   It is not one I have found it easy to reach.   It can now, however, be stated very shortly.    Despite the great wealth of material available to show that grave human rights abuses still regrettably occur in Turkey, and despite the lingering sense of unease which one must inevitably feel at the return of those like this applicant to Turkey,  I am unable to hold that the Secretary of State was bound to find the risk of this particular applicant being ill-treated to be a real one.   Clearly there exists a conflict of opinion as to the degree of risk faced generally by returnees to Turkey.   I cannot say that the Secretary of State has not conscientiously appraised the question.   Whether I myself would necessarily have made the same judgment is immaterial.   His judgment, I conclude, was reasonable.   It is therefore unassailable.   I would dismiss the application.

	I add only this.   Since writing this judgment I have seen the draft judgment prepared by Schiemann LJ - I entirely agree with all that he says on the procedural aspect of this case.

Lord Justice Schiemann:
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 [1997] 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.

Order:  Application dismissed with costs not to be enforced against the Applicant without permission of the court.  Permission to appeal to the House of Lords refused.  Stay of execution refused with liberty to apply.

(Order does not form part of approved judgment).