ON APPEAL FROM THE SPECIAL
IMMIGRATION APPEALS COMMISSION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE McCOMBE
| The Queen on the Application of "U"
|- and -
|The Special Immigration Appeals Commission
The Secretary of State for Home Department
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Mr James Strachan (instructed by Treasury Solicitors) for the The Secretary of State for the Home Department
Hearing date: 11 March 2010
Crown Copyright ©
Lord Justice Laws:
"3. It is the Secretary of State's case that from 1996 until February 2001, U was a leading organiser and facilitator of terrorist activity aimed mainly at overseas targets. To that end, it is claimed that he formed and led a terrorist group bearing one of the names which he had assumed in Afghanistan. Several of its members have been the subject of appeals to SIAC, against decisions by the Secretary of State to deport them on national security grounds. Claimed membership of the group formed part of the Secretary of State's case against each of them.
4. On 23 March 2006, FCO officials handed over to the Algerian Embassy a note which summarised the security service's view of U in the following terms:
'Senior position in Mujahedin training camp in Afghanistan. Direct links to UBL (Usama Bin Laden) and other senior AQ (Al Qaeda) figures. Involved in supporting terrorists including those involved in the planned attack on the Strasbourg Christmas Market in 2000, and an earlier plan to attack Los Angeles Airport. US sought his extradition but withdrew request August 2005 … DETAINED'.
There are credible grounds for believing each of these assertions.
5. In an unsigned witness statement dated January 2006, the appellant admits that, while in Afghanistan, he attended Khalden Camp (paragraph 16), at which individuals received training for 'resistance' in their own countries (paragraph 16). He stated that he 'was obliged, or felt obliged, to have some form of rudimentary military training' (paragraph 15). He admits attending the guest house in Jalalabad, at which others, suspected of terrorist activity, claimed to have met him (paragraph 26).
6. Some of the information about U's specific contacts and activities at both places was provided by Ahmed Ressam, who was arrested on 14 December 1999, in Port Angeles, Washington State, driving a van laden with explosives, which he said were destined for Los Angeles Airport. On 6 April 2001, Ressam was convicted of engaging in an act of terrorism and placing an explosive in proximity to a terminal and other offences, for which he was sentenced on 27 July 2005 to twenty-two years imprisonment – a substantial reduction on the sixty-five years minimum required by sentencing guidelines. He received that discount because he had provided information judged by the United States authorities to be true about others, including, in particular U. He said that he had received training in weapons handling and bomb making in Afghanistan, as part of a cell which included U as leader or trainer. Plans to bomb US targets were discussed at the training camps. Ressam understood that U's responsibilities included facilitating travel to and from the countries in which operations were to be carried out. (See paragraph 8 of the long form sealed complaint against U by the United States of America dated 2 July 2001.)
7. Ressam also stated that the proposed bombing of Los Angeles Airport was discussed with U in Afghanistan (paragraph 9) and that, as the date of the operation approached, U arranged that he would meet him in London when he had left the United States and assist him with travel to Algeria (Paragraph 11).
8. On the basis of Ressam's statements, the United States of America sought U's extradition from the United Kingdom. The application was withdrawn after, in April 2003, Ressam refused to testify against U. At a minimum, this calls into question the reliability of Ressam's statements about U.
What cannot be gainsaid, however, is that Ressam was engaged in a serious attempt to commit a major act of terrorism in the North West of the United States; and what is uncontradicted by the appellant is that a telephone number attributed to him – 7714620952 – was noted on a business card in Ressam's possession. Further, the appellant admits that he met Ressam at the guest house in Jalalabad (paragraph 26 of his statement of January 2006). At a minimum, a significant connection between a man caught in the act of furthering a major terrorist operation and U is established, with its origin in Afghanistan. Other information demonstrates that this was not just an unfortunate coincidence.
9. The appellant states that the 'sole purpose for returning to the United Kingdom was to mobilise support in this country for the Chechen people' (Paragraph 30 of his statement). He admits 'accessing' false documents to this end. Significantly, if euphemistically, he states that 'this related to the arranging of volunteers for Chechnya to go to Afghanistan to acquire some basic training' (Paragraph 36). The training was clearly military. Further, there is clear and credible evidence that, between March 2000 and February 2001, a group of three Algerians, led by him, purchased 230,000 pounds worth of high frequency radios, satellite telephones and airtime. (See the undated witness statement of Stuart Castell, Technical Manager of Integrated Communications Solutions Ltd.) This activity is wholly consistent with the role which Ressam said that U played at the camps in Afghanistan and in connection with his own operation.
10. On 10 March 2003, the High Court in Frankfurt convicted four Algerian men of planning an attack on the Christmas Market in Strasbourg in December 2000. The court stated 'connections to the Al Qaeda network could not be proven. However it was not contested that all four in the years 1999 and 2000 had received military training in Afghanistan. In the opinion of the court encouragement to carry out the attack, if not the actual direct order, came from fellow muslims surrounding (U).' This finding of the German Court, after a trial, deserves considerable weight; and is, again, consistent with the information about U's activities already referred to.
11. All of this material, taken together, satisfies us, on balance of probabilities, that the appellant has been involved in facilitating terrorist activity overseas; and, so, in consequence poses a significant risk to national security. We agree with the assessment of the Security Service, summarised in the note given to the Algerian Embassy on 23 March 2006. Further, despite the fact that the appellant has been detained continuously for six years, we share the Security Service's assessment that he remains a risk to national security. He has shown no sign of disavowing his former beliefs or associates. Indeed, his most recent witness statement dated January 2006 maintains that the accusations against him are false and that his purposes and actions were wholly benign. Only a credible and radical change in outlook could demonstrate that the risk has been eliminated or reduced to an acceptably low level. There has been none."
"If the House of Lords grants permission on the two identified grounds then we would consider it wholly reasonable for any Algerian appellant in detention to make a fresh application for bail which the Commission would attempt to determine at the earliest possible opportunity."
The House of Lords granted leave to appeal to U on 11 March 2008. Together with other Algerians detained pending deportation on national security grounds he applied for bail. The Secretary of State did not oppose the application but sought U's admission to bail at an address in Liverpool on a 22 hour curfew. U proposed an address in Brighton. For reasons not disclosed at the time the Secretary of State objected to the Brighton address. On 30 April 2008 SIAC ordered that U be released on bail to the Brighton address subject to stringent conditions including a 24 hour curfew. On 15 January 2009 a minor relaxation was allowed, permitting U to take twice-weekly accompanied walks of one hour.
"The principles of the deportation with assurances policy having been upheld by the House of Lords, each of these individuals will be aware that the prospects of deportation are now substantially higher, even if deportation is not yet quite imminent."
Other related arguments were deployed, which SIAC summarises at paragraph 19. They considered, however, that it was a "practical certainty" that the European Court of Human Rights would accept applications from the appellants (raising ECHR issues on the House of Lords' conclusions) as admissible, and give "an Article 39 indication" (that is, an indication that the appellants should not be deported until the Strasbourg court had ruled on the substance of the case). SIAC added (again paragraph 19):
"We do not accept, as a realistic assessment, the proposition that 'deportation in the near future is now a realistic prospect'. Nor do we accept that the appellants and their advisers will regard applications to the Strasbourg court as hopeless..."
"For the reasons which are wholly set out in the closed judgment, we are satisfied that the risk that U will breach his bail conditions has significantly increased."
"This judgment... sets out the approach which we will adopt to bail applications in the future and gives our reasons for the decision to revoke bail in U's case."
There follows some account of the history, then this:
"7. In the case of a new appellant, it is unlikely that the national security case will be fully deployed at the start, at least in the open material. We do not start with a presumption that he must be detained but, save in exceptional cases, we are unlikely to be able to determine, at least on the open material, whether or not the two risks [sc. the risk the appellant poses to national security, and the risk of his absconding if bailed] could be managed if an appellant were admitted to bail. A precautionary approach will be adopted. Removal of the vital tool of reliance on closed material will make it unlikely that SIAC will grant bail. The means of ensuring that detention is not arbitrary or even unduly prolonged will be to insist upon a tighter timetable for the taking of steps preparatory to an appeal than has hitherto been customary..."
"SIAC's assessment of the threat to national security posed by U is set out in paragraphs 1 to 11 inclusive of its open judgment in his case of 14 May 2007. Of all SIAC appellants he is, in our judgment, the one who would pose the greatest risk to national security if he were to abscond. Given his historical role as the leader of a terrorist group, it is likely that there are individuals with the incentive and ability to assist him to abscond. Tagged house arrest will not prevent him from doing so: the tag does not contain a tracking device. It merely alerts the monitoring company to the fact that he has left the house and garden to which he would be confined. However quick the response of the police, he would have sufficient time in which to abscond. If, as we believe likely, absconding would be assisted by others, there would be a substantial chance that he would then disappear from view and/or leave the country. The incentive for U to abscond is great and, now, quite urgent. He will be aware that, if deported under guard to Algeria, he is likely to be detained, charged and prosecuted and, if convicted, sentenced to a very long term of imprisonment under Article 87(a)(6) of the Algerian Criminal Code. His only hope of escaping that fate, apart from the success of his legal challenge, is to abscond. His domestic legal challenge has now nearly run its course. Not only was his appeal on the main grounds on which deportation with assurances has been challenged, rejected by the House of Lords, his challenge to the reconsidered decision of SIAC has also failed in the Court of Appeal, save in one respect: Z, G, BB, U, Y, VV, PP and W  EWCA Civ 1287 27 November 2009. Only one of the two grounds upon which permission to appeal has been granted relates to him: the claimed ability of an appellant to adduce 'reversed closed evidence'. If his appeal were to succeed on that ground, the result would not be that his appeal against the notice of intention to deport would be allowed, only that it be remitted to SIAC to admit further evidence on the 'reverse closed evidence' principle. He was given leave to argue that point in his original appeal, but did not, we are told for 'strategic' reasons do so. The failure of all but one of the grounds of challenge in domestic proceedings must, by now, have led him to a gloomy view about the likely prospects of success. His last and only hope would be an application to Strasbourg, the outcome of which is uncertain. He is a single man, without family ties or responsibilities in the UK. He has a good record of compliance with bail conditions, but only for 7 or 8 months. In his case, this factor is only of limited weight. Our assessment of the current circumstances in his case is that if we were to re-admit him to bail, there is a real risk or serious possibility that he will breach the condition of his bail which requires him to reside throughout the day and night at the address in Brighton at which he lived for seven or eight months or, on slightly less stringent terms, at another address in the United Kingdom. Removal of the opportunity to consider covert intelligence about an impending risk of absconding would make it impossible to manage that risk, even if (which we are not) we were prepared to take it. We are satisfied that the grounds for revocation of bail under paragraph 33(3)(a) of Schedule 2 to the 1971 Act are made out."
THE FIRST ISSUE: DID THE "PRECAUTIONARY APPROACH" PLAY ANY PART IN SIAC'S DETERMINATION OF 7 DECEMBER 2009?
MITTING J: The way in which Mr Tam [for the Secretary of State] seeks to [show that U's bail should be revoked] is to say U historically has posed a very serious threat to national security, the incentive for him to abscond because of what faces if he goes to Algeria lawfully, that is detention and retrial and a sentence up to life imprisonment is such that he is likely to abscond.
COUNSEL (for U): I had not understood that it was going to be possible to reinvent the wheel...
MITTING J: ... When bail was granted it was granted with the Secretary of State agreeing. What we declined to do when the previous Home Secretary wanted to withdraw bail from all five of the Algerian appellants [sc. in March 2009] was to examine each case individually in the light of our then understanding as to the way in which we should exercise our power. And now we know that was not right and we have got to go back to square one.
COUNSEL: It is my respectful submission that that is basically re-writing the position because everybody has proceeded on the basis that the reason why U remained in detention and everyone else was granted bail was because of the closed material unique to him. That is what differentiates him from all the others who were released.
MITTING J: Indeed that was the basis on which we reached our decision [sc. on 20 March 2009], but it does not mean to say that revisiting the matter we are inhibited from reaching a different decision on different material.
COUNSEL: Obviously the critical question is is there different material. I am not aware of any.
MITTING J: I do not mean new material. We did not consider whether in U's case his bail should be revoked because of the factors I mentioned to you a minute or two ago full stop. We decided it on the basis of closed material, but it does not mean to say that we cannot when revisiting the decision in the light of the law as we now know it to be, we are not [sic] prevented from approaching it afresh in the light of considerations which we did not then consider.
COUNSEL: ... [I]t would be my respectful submission that that is essentially seeking to go behind the effect of the judgment and that in truth there is no distinction between U and any of the others save for the national security [sc. meaning the closed] material.
MITTING J: That I do disagree with. On any view of the hierarchy of those with whom we are concerned U is at the top, the others are not.
"Removal of the opportunity to consider covert intelligence about an impending risk of absconding would make it impossible to manage that risk, even if (which we are not) we were prepared to take it."
The risk referred to is that U would breach the conditions of his bail. Miss Kilroy says, as I understood her, that this sentence somehow shows that on 21 December 2009, despite the decision in Cart, SIAC continued to have regard to closed material S
and/or were relying on the contentious precautionary approach.
THE SECOND ISSUE: LEGALITY OF THE "PRECAUTIONARY APPROACH"
CONCLUSION AND POSTSCRIPT
"As for bail, the court will not allow judicial review to be used as a surrogate means of appeal where statute has not provided for any appeal at all. In a sensitive area where the tribunal is called on to make fine judgments on issues touching national security, I would anticipate that attempts to condemn the refusal (or grant) of bail as violating the Wednesbury principle will be doomed to failure. A sharp-edged error of law will have to be shown."
Mr Justice McCombe: