COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE POTTER
LORD JUSTICE CLARKE
| The Secretary of State for the Home Department
|- and -
Mr Ben Emmerson QC and Mr Raza Husain (instructed by Birnberg Solicitors) for the "M"
Mr Angus McCullough and Mr Martin Chamberlain acted as Special Advocates
Hearing dates : 17 March 2004
Crown Copyright ©
The Lord Chief Justice
This is the judgment of the Court.
i) believes that persons presence in the United Kingdom is a risk to national security, and
ii) suspects that the person is a terrorist. (section 21(1) of the 2001 Act).
The Legislative Provisions
"(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably –
(a) believes that the person's presence in the United Kingdom is a risk to national security, and(b) suspects that the person is a terrorist.
(2) In subsection (1)(b) "terrorist" means a person who-
has links with an international terrorist group.
(3) A group is an international terrorist group for the purposes of subsection (2)(b) and (c) if –
it is subject to the control or influence of persons outside the United Kingdom andthe Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.
(4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.
(5) In this Part-
"Terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c.11), and"suspected international terrorist" means a person certified under subsection (1)."
"(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.
(2) On an appeal the Commission must cancel the certificate if-
it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), orit considers that for some other reason the certificate should not have been issued.
(3) If the Commission determines not to cancel a certificate it must dismiss the appeal.
(4) Where a certificate is cancelled under subsection (2) it shall be treated as never having been issued.""
"Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to an appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination."
This is the only way in which a decision of SIAC can be questioned in legal proceedings. (Section 1 of the 1997 Act as amended by section 35 of the 2001 Act.)
Preparation for the Hearing of this Appeal
"You are a member of a group of mujahideen engaged in active support for various international terrorist groups, including networks associated with Usama Bin Laden. Your activities on behalf of these networks include the provision of material support."
"We recognise that we must be careful not to place undue weight upon any particular piece of intelligence or assessment, since each must be looked at in the context of the whole. Equally, individual pieces of evidence looked at in isolation may seem to show little or nothing adverse to the appellant. But we must not discard them merely because of that. When the whole picture is considered, they may properly be given some weight. Equally, there may be innocent explanations for individual pieces of evidence relied on against the appellants. But we are concerned to decide whether reasonable suspicion is established and so the existence of an innocent explanation may not prevail. The question always is whether the suspicion was reasonable. We can only answer that question by submitting all the evidence to a close and penetrating analysis and then deciding whether it does establish a reasonable suspicion notwithstanding that there might be an innocent explanation."
"The Secretary of State "alleges and must establish albeit to the low standard of reasonable suspicion that the appellant has links to Al Qa'ida or has knowingly provided support to extremists who belong to loosely affiliated Al Qa'ida networks. We recognise that it is enough that he has supported one who in fact belongs to such a network if he has turned a blind eye. He does not have to know; it is sufficient if he ought to have known in all the circumstances."
"We have no doubt whatever they were entitled to be suspicious of the appellant's activities and to question whether they were limited to the promotion of the LIFG cause alone or to assistance of its members or supporters in a way which showed that the appellant did not know nor should have known that the assistance would benefit al Qua'ida linked extremists."
"We do not doubt that the respondent was entitled to suspect that the appellant is a terrorist within the meaning of the 2001 Act. Much of the material upon which the respondent relies could point in that direction, but only if a generally adverse view is taken of everything. Such a view is in our judgment not reasonable and, as we have said, we are concerned that too often assessments have been based on material which does not on analysis support them. We have thought long and hard before deciding on this appeal since we are conscious of the heavy responsibility that is placed upon us where the safety of the citizens of this country is at stake. There can be no doubt that Al Qa'ida and those who support its aims do constitute a very real threat. However, although we pay the greatest respect to the views of the respondent and those who advise him, we would be failing in our duty if we did not act on our own judgment. We believe that the assessments placed before us and the respondent are not reliable and that reasonable suspicion is not established. It follows that we must allow the appeal against certification and cancel the certificate.
There is also an appeal against the decision to make a deportation order. We recognise that the interests of national security as a ground for deportation may go beyond what is required to justify certification under the 2001 Act. But the reasons for the decision to make a deportation order were precisely the same as those which had led to the decision to certify. Accordingly, since we have not accepted that those reasons have been established, we must also allow the appeal against the decision to make a deportation order."
The Contentions of the Secretary of State
i) Having read the transcripts, we are impressed by the openness and fairness with which the issues in closed session were dealt with by those who were responsible for the evidence given before SIAC.
ii) We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process.
iii) While the need for society to protect itself against acts of terrorism today is self evident, it remains of the greatest importance that, in a society which upholds the rule of law, if a person is detained as "M" was detained, that individual should have access to an independent tribunal or court which can adjudicate upon the question of whether the detention is lawful or not. If it is not lawful, then he has to be released.
iv) This is not a case in which SIAC overruled a decision of the Secretary of State. SIAC had to come to its own decision on the material which as we have indicated was tested in a way which it could not be tested before the Secretary of State.