COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SPECIAL IMMIGRATION APPEALS COMMISSION
The Hon Mr Justice Ouseley, Senior Immigration Judge Jordan and
Mr J Mitchell
SC/42 & 50/2005
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LADY JUSTICE SMITH
| AS & DD (Libya)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and -
Mr Edward Fitzgerald QC, Mr Raza Husain, Mr Danny Friedman and Mr Hugh Southey (instructed by Messrs Birnberg Peirce and Partners for AS & TRP Solicitors for DD) for the Respondents
Special Advocates for AS: Mr N Garnham QC & Ms J Farbey (instructed by the Special Advocates Office)
Special Advocates for DD: Mr A Nicol QC & Ms J Farbey (instructed by the Special Advocates Office)
Mr Michael Fordham QC & Mr Tom Hickman (instructed by Liberty) for the Intervenor
Hearing dates: 26 & 27 February and 3,4,5 & 6 March 2008
Crown Copyright ©
Sir Anthony Clarke:
This is the judgment of the court to which each member of the court has contributed.
i) SIAC failed to give sufficient weight to the evidence of the FCO witness Mr Layden and/or wrongly substituted its own assessment for his and/or failed to give sufficient reasons for rejecting his evidence.
ii) SIAC failed to direct itself as to the correct test to measure the degree of risk that the respondents would suffer ill-treatment contrary to article 3 on return.
iii) SIAC erred in lowering the test for risk on return to take account of the unpredictability of future events in Libya.
iv) SIAC's findings of fact do not warrant, and are not capable of supporting, a conclusion that substantial grounds have been shown for believing that the respondents face a real risk of suffering treatment contrary to article 3 on return.
Background to issues in the appeal
"71. We are entirely satisfied that DD is a real and direct threat to the national security of the UK. He is an Islamist extremist. He is a member of the LIFG [ie the Libyan Islamic Fighting Group] and at least within the UK is a figure of some importance and influence. He has close links with a number of senior LIFG members. …
72. DD is a global jihadist with links to the Taleban and Al Qa'eda. Such differences as exist between those two groups have no relevance to the danger he poses. He left Libya earlier than he admits, and has travelled significantly. We are quite satisfied that the more sinister interpretations of his so called "family" website are correct and show his support for suicide operations. …
73. The evidence strongly supports the conclusions that he has probably been involved in the procurement and production of false documentation for use by LIFG members. …
74. DD is also a threat to the UK's national security because his opposition to the Qadhafi regime is a major aspect of his global jihadist outlook. Opposition to the Qadhafi regime, including opposition from an Islamist perspective i.e. from the viewpoint that the regime is anti-Islamic according to their particular strand of religious belief, is not of itself a threat to the UK's national security. It is the extremist Islamist opposition, which countenances and supports the use of violence against the regime, which is a threat; and particularly so where it is part of a wider jihadist outlook. These activities cannot sensibly be regarded as legitimate self-defence.
"104 The SSHD alleged that AS was a committed Islamist extremist who had been actively involved in providing logistic support to individuals linked to Al Qa'eda, and was linked to a terrorist cell based in Europe which was involved in raising funds, procuring forged documents and in facilitating the travel of recruits to terrorist training camps. He had links to individuals who were involved in attack planning in Europe, and himself had received terrorist training in Afghanistan. It was not alleged against him that he was a member of the LIFG, although the Libyans had accused him of being a member. …"
"The following human rights problems were reported in 2005: inability of citizens to change the government; torture; poor prison conditions; impunity; arbitrary arrest and incommunicado detention; lengthy political detention; denial of fair public trial; infringement of privacy rights; severe restriction of civil liberties-freedom of speech, press, assembly, and association; restriction of freedom of religion; corruption and lack of government transparency; societal discrimination against women, ethnic minorities, and foreign workers; trafficking in persons and restriction of labour rights.
The Libyan government continues to be repressive of any dissent and opposition political activists and opposition Islamic activities are generally not allowed to operate on any substantial scale within the country. If it is accepted that the claimant has in the past been involved in opposition political activity or is a radical Islamic activist for one of the opposition political or Islamic groups mentioned above then there is a real risk they will encounter state-sponsored ill-treatment amounting to persecution within the terms of the 1951 Convention. The grant of asylum in such cases is therefore likely to be appropriate."
Approach of the Court of Appeal
"30. … This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security  EWCA Civ 734,  3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. I cannot believe that this eminent Tribunal had indeed confused the three tests or neglected to apply the correct relocation test. The structure of their determination can be explained by the fact that this was a "country guidance" case: but that makes it all the more important that the proper approach to the internal relocation alternative, as explained by the House in this case, is followed in future."
It will be noted, relevantly to the task of this court of considering only points of law, that Baroness Hale's guidance as to the limited role of this court extends to decisions by a specialist tribunal on points of law as well as to the lower court's assessment of the facts.
"97. In the domestic jurisdiction as previously understood the question of whether an applicant faces a real risk of being subjected to treatment contrary to article 3 (the issue … , taken from  of the judgment of the ECtHR in Chahal) is a mixed question of fact and law. That expression is not here used, as it sometimes is, as a way of dressing up an issue of fact as an issue of law. Rather, it indicates that there are two discrete issues involved, one of fact and one of law. As Donaldson MR put it in O'Kelly v Trusthouse Forte  QB 90 at [122H]-[123A]:
"While it may be convenient for some purposes to refer to questions of "pure" law as contrasted with "mixed" questions of fact and law, the fact is that the appeal tribunal has no jurisdiction [under section 136(1) of the Employment Protection (Consolidation) Act 1978, which limited the jurisdiction of the Employment Appeal Tribunal to questions of law] to consider any question of mixed fact and law until it has purified or distilled the mixture and extracted a question of pure law."
In the present case the issue of fact that is distilled by proper analysis is the question of what treatment the applicant risks receiving when returned to Algeria. That is a pure issue of fact, no different from, for instance, the issue in a personal injury case of when the claimant will be free of disability. The second issue is, however, one of law: does the treatment found fall within the terms of article 3. That is to be decided according to legal rules, and in particular the jurisprudence of the ECtHR, as to the meaning of article 3.
109. … The issue of fact in this case is whether there is a sufficient risk of BB being tortured on return to Algeria. That is a single and undifferentiated question of fact, which it is for the fact-finding tribunal to determine. In making that determination the fact-finding court will no doubt assess the impact of other findings that it has made, just as it will assess the reliability of witnesses in deciding what findings to make. But that process is all part of the fact-finding process. That process of assessment is quite different from, and plays a quite different role from, for instance, the assessment that the court has to make, based on the found facts, of whether the defendant acted negligently: which is a matter of legal judgement, and not just a question of what is going to happen in certain circumstances in the future."
The correct test
"No one shall be subjected to inhuman or degrading treatment or punishment."
Although the nature of the correct test is the subject of the SSHD's second ground of appeal, it is convenient to address it first because it provides the basis for the consideration of the remainder of the questions in the appeal. It is common ground that the correct test is whether substantial grounds were shown for believing that the respondents would face a real risk of suffering treatment contrary to article 3 of the Convention on return to Libya. It was common ground before SIAC that that is the correct test and it is common ground now.
"It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. … Where such evidence is adduced, it is for the Government to dispel any doubts about it."
A considerable amount of evidence was put before SIAC, which considered it with care and, on the basis of it, concluded that there would be a real risk of the respondents being tortured on return to Libya. Thus SIAC applied the correct test.
"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 subject 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 in question, however undesirable or dangerous, cannot be a material consideration. …"
That test was repeated in the written closing submissions on behalf of the SSHD and no-one, including SIAC, suggested any different test.
"390. … What matters is whether such assurances in any individual case signify that there is no real risk that the individual would be subject to treatment breaching Article 3…".
As in the present case, the full test is not set out. We would add that we also accept the respondents' submission that the importance of the words 'substantial grounds for believing' is to stress that the decision as to the existence of a real risk must be based on evidence and not on mere assertion or speculation.
The correct approach to the evidence of Mr Layden
"Conclusions: the FCO evidence and deference
320. The SSHD has relied on the evidence of Mr Layden as to the reliability of the assurances which have been negotiated, and has also submitted that we should accord his views deference. Mr Layden was an impressive witness – forthright, completely honest, realistic, with a commitment to truth and fairness, and to the upholding of the UK's international human rights obligations. He had the advantages of long experience of diplomacy in the Middle East and of being an Arabic speaker. Above all, he had been the British Ambassador in Libya when the MOU was contemplated and negotiated; he was a participant in the negotiations. True it is that he is not an independent expert witness in the conventional forensic sense, and his roles in the process could suggest that he could be an enthusiast for the work which he had done. But he is retired and only fills his particular post because he has been asked to, and because he believes that the agreements which he has negotiated would assist the security of the UK without breaching the ECHR. He has been frank about why he would not have adopted that stance earlier in relation to Libya. His expertise is particularly relevant to the assessment of the significance of the course of negotiations, to the domestic political situation, to the relationship between the various personalities who feature in this case, and to the assessment of why the interests of a diplomatic relationship between Libya and the UK would suffice to prevent a breach of the MOU. Of course, when he says that a breach would be "well nigh unthinkable", that view commands considerable respect, although it is very strong indeed.
321. Nonetheless, for the reasons which we have given in Othman, in paragraphs 339-340, adopting [MT] in paragraphs 324-326, we do not treat his views with deference on those matters. They are entitled to weight according to the expertise, experience and cogency with which they were expressed and with which the difficulties were considered and dealt with. We have set out the areas in which he has particular expertise and experience.
322. This is not to downplay the value of the views of Professor El-Kikhia (the respondents' expert witness), and we do not do so. Although the disappearance of his cousin, probably at the hands of the Libyan authorities, might be capable of impairing his objectivity, we saw little evidence of that. Much of what he says accords with the evidence of Mr Layden. But as we have already said, there is a significant difference between them on the question of whether the Libyans can be trusted as the result of a number of incidents which arose during the initial stages of the rapprochement, including over the abandonment of WMD (weapons of mass destruction). On these, we conclude that Mr Layden has by a long way the greater immediate and direct knowledge; part of it was dealt with only in the closed material. We accept Mr Layden's evidence that the Libyans have proved in the end completely trustworthy in the way in which they have dealt with some very difficult issues, and have kept to what they said they would do, even if there have been some uncertainties and surprises along the way. It is in the very nature of their roles that Mr Layden's knowledge would be greater.
323. Mr Layden is also able to speak with a greater understanding than Professor El-Kikhia could have of the diplomatic relationship between the UK and Libya, its origin and its important components, the incentives on Libya to adhere to the obligations, and the sanctions open to the UK in the event of a reported breach of the MOU. There can be an advantage in the distance which Professor El-Kikhia has from Libya, but there is a much greater advantage in the personal immediacy and recentness of knowledge of people and events as they affect this relationship.
324. We also take Mr Layden as representing the considered and collegiate views and wisdom of the FCO, and as not pursuing some personal cause which the FCO has been pleased to see him promote if he felt able to do so."
"So it would be a clear breach of faith on the part of the Greek Government if he were detained in Greece otherwise than for the purpose of serving his sentence, and it appears to me to be impossible for our courts or for your Lordships sitting judicially to assume that any foreign Government with which Her Majesty's Government had diplomatic relations may act in such a manner."
Lord Morris said much the same at 279C-D and 280F.
"As for irrationality, which Mr Alun Jones said was the only real issue in the case, this also seems to me to be a complaint which is without any real substance. The question whether it is unjust or oppressive to order the applicant's return to Hong Kong must in the end depend upon whether the PRC can be trusted in implement of its treaty obligations to respect his fundamental human rights, allow him a fair trial and leave it to the courts, if he is convicted, to determine the appropriate punishment.
It cannot be stressed too strongly that the decision in this matter rests with the Secretary of State and not at all with the court. The function of the court in the exercise of its supervisory jurisdiction is that of review. This is not an appeal against the Secretary of State's decision on the facts. His decision has had to be taken amidst an atmosphere of mistrust and suspicion which a court is in no position to penetrate. The visible part is the framework of law which I have described. That part can be explained and analysed. The invisible part is about the hearts and minds of those who will be responsible for the administration of justice in Hong Kong after the handover. This is not capable of analysis. It depends in the end, upon the exercise of judgment of a kind which lies beyond the expertise of the court. That, no doubt, is why the decision whether or not to grant the warrant has been entrusted to the Secretary of State by Parliament."
"The emphasis that [the SSHD] gave to the legal framework was not just, as Mr Vaughan asked us to accept, an assertion that the law is the law. It was the basis of his decision, which I have said is not an irrational one, that the PRC – despite its actions elsewhere and in other circumstances – could be relied upon to respect the law in the applicant's case and not to interfere in the process of justice in bringing him to trial in Hong Kong and, if he is convicted, imposing and enforcing the appropriate penalties. If that assumption is made it provides a rational and complete answer to all the questions."
"It is often said that, while the Convention may influence the common law, it does not bind the executive. This view was reflected in the observation by Sir Thomas Bingham MR in Reg v Ministry of Defence, Ex parte Smith  QB 517, 558E that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the applicant in this case was the risk of an interference with the applicant's human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in Reg v Secretary of State for the Home Department, Ex parte Bugdaycay  AC 514, as Sir Thomas Bingham MR also recognised in Ex parte Smith, at p. 554H. Then there is the question whether judicial review proceedings can provide the applicant with an effective remedy, as article 13 requires where complaints are raised under the Convention in extradition and deportation cases: see Soering v United Kingdom (1989) 11 EHHR 248; D v United Kingdom, The Times, 12 May 1997. If the applicant is to have an effective remedy against a decision which is flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was to the rationality and legality of the decisions, and not to some independent remedy, that Mr. Vaughan directed his argument.
"The remaining part of Mr. Vaughan's argument can be dealt with under the heading of irrationality. He maintained that the Convention required detailed scrutiny and evaluation of the facts in an extradition case where the person's human rights were at risk. He referred to Soering v. United Kingdom, 11 EHRR 439 to illustrate his point that confidence in the legal system was not enough. There had to be an examination of the domestic law and practice as it was applied in reality. In that case, on the facts, practice in the United States was at serious risk of failing to conform to the standards of the Convention, so the decision to order the detainee's surrender to that country was held to involve a breach of the Convention. Mr. Vaughan said that the Secretary of State had based his decision on a formal interpretation of the Joint Declaration, asserting that the law was the law, rather than an analysis of practice in Hong Kong."
"Here again, however, the argument raises points which I have already dealt with under previous headings, and in particular in my examination of the question whether the decisions could be said to be irrational. I do not think that it is necessary to go over these points again. It is enough to say that the argument which Mr Vaughan presented under this heading seemed to me to be inextricably linked to those which he had already presented under the heading of irrationality. No new points of substance were raised in this branch of his argument. The decision which he says should have been taken would have had to have been based on the conclusion that, despite the provisions of the Joint Declaration and the Basic Law, the practice of the PRC in the field of human rights to date within its own territory showed that there was a serious risk that the provisions of these instruments would be departed from in Hong Kong SAR. But these arguments are not all one way on this point, as I have already sought to demonstrate. A reasonable Secretary of State could, on the material available to him, have concluded that the concerns were indicated by the PRC's actions in other places and in other circumstances were not so serious as to give rise to a serious risk of injustice or oppression in the applicant's case. The human rights context has not been overlooked in this assessment. On the contrary, it lies at the heart of the whole argument. It is precisely because it was not irrational for the Secretary of State to say that he was not persuaded that there was a case on human rights grounds for refusing extradition to Hong Kong that his decisions stand up to the required degree of scrutiny."
"In conclusion even though the Commission has powers of review both of fact and of the exercise of the discretion, the Commission must give due weight to the assessment and conclusions of the Secretary of State in the light at any particular time of his responsibilities, or of government policy and the means at his disposal of being informed of and understanding the problems involved. He is undoubtedly in the best position to judge what national security requires even if his decision is open to review. The assessment of what is needed in changing circumstances is primarily for him."
Although Lord Steyn noted at  that issues of national security do not fall outside the competence of the courts, he added that it is self-evidently right that national courts must give great weight to the views of the executive on matters of national security.
This does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary, so as to "defeat the purpose for which the Commission was set up": see the Commission's decision. It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive. The precise boundaries were analysed by Lord Scarman, by reference to Chandler v Director of Public Prosecutions  AC 763 in his speech in Council of Civil Service Unions v Minister for the Civil Service  AC 374, 406. His analysis shows that the Commission serves at least three important functions which were shown to be necessary by the decision in Chahal. First, the factual basis for the executive's opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the Commission to say that there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commission's ability to differ from the Home Secretary's evaluation may be limited, as I shall explain, by considerations inherent in the appellate process but not by the principle of the separation of powers. The effect of the latter principle is only, subject to the next point, to prevent the Commission from saying that although the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir had proper factual basis, it does not accept that this was contrary to the interests of national security. Secondly the Commission may reject the Home Secretary's opinion on the ground that it was "one which no reasonable minister advising the Crown could in the circumstances reasonably have held". Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his human rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative."
"The Commission has also been clear that the assessment of the value and effectiveness of assurances is less a matter of their text, though that can be relevant in showing what issues have been considered and what room may exist for a government to take a strictly legalistic view of what it has undertaken, and more a matter of the domestic political forces which animate a government and of the diplomatic and other pressures which may impel its performance of its obligations, or lead to quick discovery and redress for any breach."
That was a correct approach to the assurances and it is clear from SIAC's judgment that it appreciated that Mr Layden had particular expertise in identifying the forces and pressures which would or might govern the way in which Colonel Qadhafi responded to them.
Failure to apply the proper test
"The Minister of Foreign Affairs confirms that the Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial. The Minister would point out that Tunisia has voluntarily acceded to the relevant international treaties and conventions."
"Responsibility of Contracting States in the event of expulsion
124. It is the Court's settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens …. In addition, neither the Convention nor its Protocols confer the right to political asylum ….
125. However, expulsion by a Contracting State 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 deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Soering v. the United Kingdom, … §§ 90-91; Vilvarajah [(1989) 14 EHRR 248] …, § 103; Ahmed …, § 39; H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 34; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007).
126. In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment (see Mamatkulov and Askarov v. Turkey [(2005) 41 EHRR 25] § 67, …
127. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. 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 (see Ireland v. the United Kingdom, [(1978) 2 EHRR 25, § 163; Chahal, … § 79; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001-XI; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 335, ECHR 2005-III). As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim's conduct (see Chahal, … § 79), the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001, and Ramirez Sanchez v. France [GC], no. 59450/00, §§ 115-116, 4 July 2006).
Material used to assess the risk of exposure to treatment contrary to Article 3 of the Convention
128. 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 (see HLR v. France [(1997) 26 EHRR 29] § 37, and Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). In cases such as the present the Court's examination of the existence of a real risk must necessarily be a rigorous one (see Chahal …, § 96).
129. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it.
130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others …, § 108 in fine).
131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department (see, for example, Chahal, … §§ 99-100; Müslim v. Turkey, no.o53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, 5 July 2005; and Al-Moayad v. Germany (dec.), no.o35865/03, §§ 65-66, 20 February 2007). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others, … § 111, and Fatgan Katani and Others v. Germany (dec.), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov, … § 73, and Müslim, cited above, § 68).
132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis, Salah Sheekh, … §§ 138-149).
133. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal, …, §§ 85 and 86, and Venkadajalasarma v. the Netherlands, no. 58510/00, § 63, 17 February 2004). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court (see Mamatkulov and Askarov, … § 69). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive."
"On the contrary, [the court] reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3 (see paragraphs 125 and 132 above and the case-law cited in those paragraphs)."
"In consequence, the court considers that, in the light of the evidence in its possession, the facts of the case do not support "beyond any reasonable doubt" the assertion that, at the time when the Georgian authorities took the decision, there were no real or well-founded grounds to believe that extradition would expose the applicants to a real and personal risk of inhuman or degrading treatment, within the meaning of Article 3 of the Convention. There has accordingly been no violation of that provision by Georgia."
We do not think that in that passage the court can have intended to alter the principles which it had previously identified in a number of cases. Read in its context, we think that the reference to "beyond reasonable doubt" was a reference back to the discussion at , where (as just stated) the court was focusing on circumstances where it was alleged that there had been breaches of article 3. Historical breaches, which may of course be relevant to the assessment of risk, must be proved beyond reasonable doubt as defined by the ECtHR.
"In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment".
Lord Bingham then referred to a number of Strasbourg cases including Soering. In the jurisprudence of the ECtHR, as we have seen, the test is whether there are 'substantial' grounds for believing that there is a real risk of torture. We do not think that there is any difference between 'strong grounds' and 'substantial grounds'.
"Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment (see Jabari, cited above, § 39) in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion."
"Furthermore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, § 105). The weight to be given to assurances from the receiving State depends, in each case, on the circumstances obtaining at the material time."
"347. First, this combination of pragmatism with a mercurial personality, which we take to mean for these purposes changeability of view and unpredictability of reaction, highlights a contrast and even a conflict between a short term reaction and a longer term course to which the regime would revert after the short term reaction had worn off. This may mean that for a short period, but of uncertain duration, some course divergent from the longer term course could be followed. The regime may see that longer term course as continuing so far as it is concerned, possibly at some short term cost. It might see no incompatibility between its longer and shorter term courses.
348. Second, the way in which Colonel Qadhafi sees his pragmatic interest in his survival may itself be unpredictable and need not to western eyes, be rational or in his self-interest. That has been so in the past, and indeed there is plenty of evidence over many years of Colonel Qadhafi adopting an approach which must have reflected his assumed pragmatism for his regime's survival, but which Mr Layden saw as counter-productive, contrary to Colonel Qadhafi's own best interests. This had happened in the short term as well. Colonel Qadhafi may well see a course of conduct as necessary for his survival which Mr Layden would regard as unlikely to be conducive to that end.
349. Third, if Colonel Qadhafi has adopted a pragmatic approach in the past, based on his perception of what would preserve and enhance the regime's long term prospects of survival, that pragmatism is also compatible with torture, incommunicado detention, and unfair trials. Indeed, much of the purpose of those abuses would have been to enable the regime to remain in power. It would be possible to give a "pragmatic" interpretation to any of those, especially if reprisals are allowed as a rational form of policy. Such an interpretation could be attempted for the Lockerbie bombing."
There followed a consideration at  as to whether the Lockerbie attack had the blessing of Colonel Qadhafi. Mr Layden thought not but SIAC observed that that would mean that others could misunderstand what he intended.
"351. The willingness of the regime to endure international opprobrium and diplomatic pressure, whether in pragmatic mode or in short term changeable mode, in a way which cannot be explained other than by the vital importance of maintaining a particular domestic posture, can be seen in the way in which the Bulgarian medics have been dealt with. It is a dismal story of injustice, despite the high level, persistent diplomatic pressure and adverse publicity which the trial and detention have attracted. If it is the position, as we accept, that Colonel Qadhafi could determine the outcome of the trial, he plainly has not done so in response to that very considerable external pressure. There must be overriding considerations of domestic politics which outweigh in his mind all other considerations.
352. These may illustrate the difficulty which Colonel Qadhafi has in seeing a trial lead to acquittals when he has pronounced on the defendants' guilt, the difficulty he has in accepting that the medical system run by the state might have been to blame for the outbreak of HIV/AIDS, the effect of local pressure from the families for a guilty verdict and the counter-productive effect of public external pressure and publicity. We would accept that the outcome also suggests that Mr Layden has been over-optimistic in his assessment of when the ordeal would be over."
"We conclude that the pragmatism of the regime in its own self-interest is not sufficient itself to exclude a real risk that it would act discordantly with that long term course, temporarily or on occasions, whilst still taking the view that they were acting pragmatically to ensure its survival. The question is whether such temporary or occasional acts would lead the regime leaders or others to breach the MOU, particularly with regard to the way in which the Appellants would be treated in detention or during questioning. Certainly, the past and current practices of the regime and its security organisations show that violence and human rights abuses are regarded as legitimate, even necessary, weapons to be deployed to protect the regime or to punish opponents. There is no institutional or personal rejection of such acts when used to those ends."
Mr Sales submits that here, as in other parts of the judgment, SIAC erred in principle in asking itself whether the pragmatism of the regime was sufficient to exclude a real risk of torture. He submits that that is to put the test the wrong way round.
"361. Indeed, we would accept that there is an element of speculation about how any change of approach might occur in what we have set out. That is inevitable in this case for what we are satisfied about is that there is a considerable element of unpredictability which we do have to consider. That is where the risk first arises and it could result from a number of actions. We have to do what we can to assess its degree, causes and impacts. We are satisfied that there are real risks of such events occurring, which could lead to acts which diverge from the pragmatic course as Mr Layden would see it, even though the divergence would be occasional, responding to events, or temporary. These are not in our judgment unrealistic scenarios."
We reject Mr Sales' submission that SIAC there misapplied the test. It correctly said that it was for it to assess the degree, causes and impacts of the risk and said that it was satisfied that there were real risks of the contemplated events occurring. That was a correct statement of the test, with the nature of which SIAC was very familiar. Moreover the statement that those were 'not unrealistic scenarios' seems to us, when read in the context of the paragraph as a whole, to mean that they were realistic scenarios.
"First, while those returned under the MOU might well be spared any simple if widespread reprisal in the event of a violent attack against the regime, they could well be subjected to treatment which breached Article 3 during the course of interrogation as part of the investigation into such an attack. Second, any one of the three intelligence services could conclude that it wanted more information from the Appellants which it believed they had, whether for a trial of some other defendant or for intelligence purposes. These would be newcomers to them and could have information which they felt had not been divulged. An absence of co-operation could be resented if there were a growing body of LIFG members in Libya returning and rebuilding its infrastructure there, and especially so if the Libyans believed that the UK was unable or unwilling to obtain or provide the information which they felt they needed. The Libyan intelligence or security organisations may not always operate in harmony rather than in competition. Third, if some grievance or slight were felt against the UK, the reaction could be to place an Appellant in a political prison, and in the case of a prison run by the Judicial Police but which had a political wing, a transfer would not be difficult to arrange, nor a return. But life in the political wings or prisons would involve a probable breach of Article 3. Either of those last two reactions could occur at any stage during detention, before or after trial and conviction. Fourth, although it would not necessarily lead to a breach of Article 3, Colonel Qadhafi could give instructions, or be interpreted as having done so, for the conviction of the Appellants and for the sentence, whether as a long term of imprisonment or as the death penalty. Appeals and any commutation of the death penalty could then be long delayed or used as a bargaining counter with the UK. The judicial and the political part of the commutation process in the HJC could be delayed for any number of reasons. Fifth, any desire to obtain a conviction could be reinforced by interrogation in breach of Article 3, to obtain a confession."
"We have accordingly come to the conclusion that although it is probable that Mr Layden's judgment as to how the Libyans would observe the MOU in relation to the physical treatment of the Appellants is sound, and that they would not be ill-treated in a way which breached Article 3, we cannot adopt his conclusion that that would be well-nigh unthinkable. Instead we think that there is a real risk that that would happen. The need in this case to make a large allowance for the unpredictable reaction, which in the short term or occasionally diverges from the pragmatic path upon which the Libyans are set means that we cannot eliminate the real risk which we have identified. The fact that the direction of Libyan foreign relations would largely remain the same does not remove the risk. There are no domestic changes, institutions or considerations which would assist. Above all the risk is not reduced sufficiently by the monitoring system because it is at these times that its limitations would be most evident and felt. We have to bear in mind that the monitoring system is intended to deter and check on potential breaches which can occur quite quickly, and to alert the UK's diplomats to the problem rapidly. The diplomatic pressure which the UK could bring to bear and the responses adverse to Libya's interests which it could deploy, would not be engaged if the monitoring were ineffective to report on possible abuse. We do not therefore have the confidence which we need to have, for the return of the Appellants not to breach the UK's international obligations. In short there is too much scope for something to go wrong, and too little in place to deter ill-treatment or to bring breaches of the MOU to the UK's attention."