Case Comment: Fairness versus diplomacy: protecting witnesses in national security cases, W (Algeria) v SSHD  UKSC 8
15 Thursday Mar 2012
On 7 March 2012, the Supreme Court gave judgment in seven linked cases, now known as W (Algeria) v Secretary of State for the Home Department  UKSC 8. For the background to the case and an introduction to the legal issues, see here.
The decision concerns a relatively narrow, but very important, point about fairness in the national security context. Can an appellant keep the identity of a witness (‘W’) secret, where they have important evidence to give and would face danger if their identity was known?
By the time the case reached the Court of Appeal, the parties agreed that SIAC had the power to make such an order. The Secretary of State argued, however, that it would never be appropriate for it to do so. There were two essential concerns:
(1) That if the Secretary of State cannot reveal the identity of the witness, she cannot take steps to check the reliability of the witness’ evidence, in particular through the Algerian authorities
(2) That the information provided by the witness may be material which the Secretary of State would wish to share with other States. Among other examples, she raised the spectre of being unable to pass the information on to prevent a terrorist attack on a friendly State. If that State discovered that she had had this information but not passed it on, this would cause diplomatic embarrassment.
These concerns carried the day in the Court of Appeal. [Link to case preview] But they did not impress the Supreme Court. In a punchy 12 pages, they allowed the appeal.
The leading judgment was given by Lord Brown. Since the legal framework was no longer in dispute, he went straight to the key issues. The Court of Appeal had been very concerned about issue (2) above – the possibility that the Secretary of State could not divulge information which could help to prevent a terrorist attack. Lord Brown dealt with this robustly:
‘Even, however, were such a scenario to play out and culminate in a terrorist atrocity in country C and it were later to emerge that the Secretary of State had known, but failed to warn, country C about W’s move there, it must surely be a substantial defence to any diplomatic complaint by country C that the Secretary of State was subject to a final and absolute court order prohibiting her from acting differently.’ 
In Lord Brown’s view, these diplomatic concerns were ‘an insufficient ground on which to deny A and SIAC the possible benefits of W’s evidence.’  He acknowledged that such an order ‘could be thought to come perilously close to offending against basic principles of open justice.’  As well as problem (1) above – the inability of the Secretary of State to investigate the reliability of the evidence – the order could have the perverse effect of hampering the appellants by reducing the weight of W’s evidence (since SIAC would have to treat it as not having been thoroughly tested). However, this was clearly preferable to not hearing the evidence at all. In Lord Brown’s view, none of the practical problems ‘outweighs the imperative need to maximise SIAC’s chances of arriving at the correct decision on the Article 3 issue before them and their need, therefore, to obtain all such evidence as may contribute to this task.’  Such orders should ‘most sparingly used’, but are at the end of the day ‘the lesser of two evils’. 
Lord Brown went on to give some procedural guidance. When seeking such an order, appellants should give SIAC a detailed statement or proof of evidence from the witness and a full explanation of his or her fears, how his evidence came to the appellants, and what steps they have taken to persuade him or her to give evidence in the usual way. There should be an inter partes hearing at which the Secretary of State can argue that SIAC should not admit the evidence. 
In a short additional judgment, Lord Dyson started by observing, with some understatement, that ‘National security issues continue to present difficult challenges to the courts.’  He agreed that, in the stark situation faced by SIAC in these cases, the balance is firmly in favour of making an irrevocable non-disclosure order. The making of such an order
‘is a striking step for any court to take and is contrary to the instincts of any common lawyer. It is inimical to the fundamental principles which we rightly cherish of open justice and, above all, procedural fairness… any such order requires compelling justification.’ 
But the circumstances called for ‘unusual and undesirable remedies’ . Endorsing Lord Brown’s guidance on procedural safeguards, Lord Dyson emphasised that W’s evidence was not going to be withheld from the Secretary of State herself. She is able to deploy a range of objective material in an attempt to discredit it, and will have every opportunity to do so. But he did not shy away from accepting that, in some cases, an irrevocable non-disclosure order may ‘inhibit the ability of the Secretary of State to resist the appeals.’ 
Lord Dyson ended his judgment by emphasising that he had struck the balance in this way because the appellants’ case involved a risk of ill treatment contrary to Article 3 of the Convention. Risks to life under Article 2 would be treated in the same way, but he indicated that where other Convention rights (such as Article 8) formed the basis of the appellant’s case, ‘the balance will almost certainly be struck the other way.’ 
The problems faced by people who cannot see the evidence against them, including in SIAC, are obvious, and the imbalance and potential unfairness inherent in such a situation have been criticised for many years. The Supreme Court has had to grapple directly with those issues on a number of occasions. Their Lordships were keen to disavow any suggestion that their decision in this case was based on a desire to ‘level the playing field’ by allowing appellants also to rely on secret evidence. The issue had to be judged in its own right.
In any event, the situation is clearly not symmetrical – not only because, as Lord Brown acknowledged, the Secretary of State has broader public duties and is not just a ‘party’ to the case, but because there was no suggestion of keeping the witness’s evidence from the Secretary of State. She would be fully aware of it – she just had to keep it confidential.
This is a classic case which turned, ultimately, on the impression which various competing considerations make on different courts. At the heart of the case was a balancing exercise, the result of which was not determined, or even guided, by previous caselaw (not a single authority is cited in the two judgments). Factors which the Court of Appeal found compelling and decisive were seen differently in the court above. Considerations of diplomacy and international relations have, historically, been something of a trump card for the government. But in this case, the diplomatic argument simply did not strike the Court as persuasive, when weighed against the concrete situation of the individual appellants.
The dilemma at the heart of the case was, ultimately, of the Secretary of State’s own making. If she chooses to deport people to states where torture is endemic, those people must be able to challenge that decision in an impartial tribunal. That requires due process. It is quite possible that ‘defence’ witnesses will be unwilling to be named, for exactly the same reasons as the appellants are frightened of the consequences of deportation. Vague considerations of diplomacy are one thing: deporting somebody to a risk of torture because witnesses were too afraid to give evidence to help them is another. The Supreme Court acknowledged the importance of open justice. It is fundamental to our legal system, and is currently under threat from a number of directions, including the government’s current proposals for secret trials. The orders which the Supreme Court endorsed are clearly exceptional, and are in tension with the ‘open’ part of the principle. But the Court was right to hold that, in very rare cases, unusual remedies may be needed to protect the ‘justice’ part of the equation. Where the alternative is deportation to torture, such remedies really are the lesser evil.