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On appeal from: [2010] EWCA Civ 898

The appellants are Algerian nationals suspected of terrorist offences whom the Secretary of State proposed to deport to Algeria. Despite assurances from the Algerian Government that the appellants’ rights to not be tortured or subjected to ill-treatment would be respected, it was accepted that Algeria was a country where state officials systematically practised torture without fear of being prosecuted for it. The appellants challenged the Secretary of State’s decision to deport them for national security reasons in SIAC proceedings on the grounds that they would be at risk of torture if deported, contrary to ECHR, art 3.

One of the appellants wanted to adduce evidence he wished to remain confidential – a witness prepared to give evidence to SIAC that the appellants were likely to be subject to torture or ill-treatment in Algeria, but on the absolute condition that his identity and any evidence would by order remain confidential to SIAC. The witness was concerned that if his evidence were communicated to Algerian authorities he and his family would be in peril. The Secretary of State’s objections were twofold: the inability to test the validity of the witness’s evidence, and that the information may reveal something that would indicate a threat to national security abroad, but bound by SIAC’s order she would be unable to alert the foreign state, affecting diplomatic relations.

It was for the Supreme Court to determine whether it was open for SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of the witness’s evidence and identity.

The appeals were unanimously allowed. It was held that the Secretary of State’s concerns were unpersuasive in relation to the imperative need to maximise SIAC’s chances of arriving at the correct decision concerning the safety of the appellants on return to Algeria. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant of (a) the proposed evidence from the proposed witness, (b) the particular circumstances in which the witness claims to fear reprisals, and (c) how the applicant and his legal advisers came to hear about the witness’ proposed evidence and what if any steps they have taken to encourage the witness to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private). It was also noted that the power to make such orders must be used sparingly, however, and that as this case rested on a possible breach of ECHR, art 3 it carried a different weight to one involving an article besides art 2 or art 3.

For judgment, please download: [2012] UKSC 8
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