Appeal Number: SC/39/2005
Date of Hearing: 14-17 November 2006
Date of Judgment: 5th December 2006
Appellant: Mr H Southey
Representative: Mr R Singh, Fisher Meredith
Respondent: Mr R Tam QC
Representative: Ms A Forgaard, Treasury Solicitor for the Secretary of State
Special Advocate: Mr N Blake QC and Mr M Chamberlain
Representative: Ms C Edwards, Treasury Solicitor for the Special Advocate.
Open Decision on National Security
Open Decision on Safety on Return
(i) the terms of the assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to Article 3;
(ii) the assurances must be given in good faith;
(iii) there must be a sound objective basis for believing that the assurances will be fulfilled;
(iv) fulfilment of the assurances must be capable of being verified.
"This exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms …".
By longstanding diplomatic convention, President Bouteflika's acknowledgement and approval of a letter containing those words, amounts to a commitment on the part of the Algerian government to respect those rights.
"Central figure in Finsbury Park Mosque, associated with Abu Hamza and with other people there including the accused in the ricin plot. Found in possession of information on bomb making, and instructions for creating chemical explosives, and propaganda material relating to … DHDS. Detained."
There is no reason to suspect that the Algerian authorities have undertaken any investigation into that statement, any more than the information supplied in January 2004. Worthwhile investigation could only take place in the United Kingdom. It was not suggested to Mr Layden or to witness E that British authorities, including the Security Service, were aware of any such enquiries. It is fanciful to think that there are. As Mr Layden accepts, the Algerian authorities will wish to interrogate BB about his activities in the United Kingdom and, to that end, will detain him for a period on his return. The only method of obtaining evidence against him of an offence under Article 87a 6 is interrogation. If, under proper methods of interrogation, BB provides evidence of such an offence, there is nothing to prevent his lawful prosecution for it. It is only if methods of interrogation involve torture or ill-treatment that the possibility of investigation or prosecution is relevant to the issue of safety on return. Thus, the issue turns upon the worth, or otherwise, of the assurances given by the Algerian authorities.
"Should the above named person (BB) be arrested in order that his status may be assessed, he will enjoy the following rights, assurances and guarantees as provided by the Constitution and the national laws currently in force concerning human rights:
a. the right to appear before a court so that the court may decide on the legality of his arrest or detention and the right to be informed of the charges against him and to be assisted by a lawyer of his choice and to have immediate contact with that lawyer;
b. he may receive free legal aid;
c. he may only be placed in custody by the competent judicial authorities;
d. if he is the subject of criminal proceedings, he will be presumed to be innocent until his guilt has been legally established;
e. the right to notify a relative of his arrest or detention;
f. the right to be examined by a doctor;
g. the right to appear before a court so that the court may decide on the legality of his arrest or detention;
h. his human dignity will be respected under all circumstances."
The assurances were repeated in a similarly signed and sealed document on 16 September 2006, with minor modifications:
(g) was deleted, but the following was added:
"he may benefit from the suspension of the death penalty which has applied since 1993, in the same way as other Algerian citizens who have received the same sentence."
It was not suggested that there was any significance in the deletion of paragraph (g).
(i) For the reasons set out in Y, Algeria wishes to become, and to be accepted by the international community as, a normally-functioning civil society. To give and to break a solemn assurance given to another state would be incompatible with that ambition. So, too, would be a failure on the part of Central Government to ensure that its security services, at lower levels, did not frustrate them.
(ii) There are significant and strengthening mutual ties between Algeria and the United Kingdom: UK investment in Algeria, said to be the largest of any foreign state; the supply and purchase of gas; the exchange of security and counter-terrorism information; the assistance which the United Kingdom can give Algeria in its turn towards free enterprise and the use of the English language. Very considerable efforts have been made at the highest political levels on both sides to strengthen these ties. It is barely conceivable, let alone likely, that the Algerian Government would put them at risk by reneging on solemn assurances. Nor is there any reason to suppose that the British Government would turn a blind eye if they did. The safe and lawful return of persons found to be a threat to national security to their countries of origin is a high political priority of the British Government. If there were real grounds for believing that the assurances of the Algerian Government had been breached, the subsequent deportation of a person on national security grounds would be problematic or impossible. Further, the actions of the British Government would be undertaken in the knowledge that they would be scrutinised, in any subsequent case, by SIAC.
(iii) BB is, as Mr Tam puts it in his written closing submissions, a "small fish", by comparison with others who have been released by the Algerian authorities or allowed to return. He will return under the watchful gaze of the British Government, the British media and of non-government organisations such as Amnesty International. It would make no sense for the Algerian Government to renege on its assurances or even to fail to take steps to ensure that government agents at a lower level complied with them in the case of a man such as BB.
MR JUSTICE MITTING