Hilary Term [2012] UKSC 8 On appeal from: [2010] EWCA Civ 898


W (Algeria) (FC) and BB (Algeria) (FC) (Appellants) v
Secretary of State for the Home Department
PP (Algeria) (FC) (Appellant) v Secretary of State for the
Home Department (Respondent) (formerly VV (Jordan)
(FC) and PP (Algeria) (FC) (Appellants) v Secretary of
State for the Home Department (Respondent))
Z (Algeria) (FC), G (Algeria) (FC), U (Algeria) (FC) and
Y (Algeria) (FC) (Appellants) v Secretary of State for the
Home Department (Respondent)
Lord Phillips, President
Lord Brown
Lord Kerr
Lord Dyson
Lord Wilson
7 March 2012
Heard on 30 January 2012
Appellant Respondent
Michael Fordham QC Robin Tam QC
Stephanie Harrison Robert Palmer
(Instructed by Luqmani
Thompson & Partners;
Birnberg Peirce &
Partners; Tyndallwoods)
(Instructed by Treasury
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1. From time to time over many years the Secretary of State for the Home
Department has been concerned to deport a foreign national on the grounds of
national security. Sometimes, indeed with increasing frequency, those facing such
deportation decisions have wished to contest them, either by challenging that they
present a national security risk, or by invoking the European Convention on
Human Rights and contending that they would be at risk of article 3 ill-treatment if
returned to their home country.
2. To enable such cases to be properly heard, Parliament, by the Special
Immigration Appeals Commission Act 1997 (the 1997 Act) established SIAC and,
as will be very familiar to all with any interest in this area of the law, provided for
an appeal system which allows where necessary for closed material procedures and
the appointment of special advocates. All this has been rehearsed time and again in
a succession of judgments – not least, indeed, in paras 4-15 of the judgment below
– and no useful purpose would be served by my repeating it all here. Put very
shortly, if the Secretary of State wishes to adduce evidence which, for reasons of
national security or other sufficient public interest reasons, cannot safely be
communicated to the appellant, SIAC’s rules and procedures provide for this to be
done – just how satisfactorily being a matter of continuing debate into which,
happily, there is on this appeal no need to enter.
3. The difficulty raised by the present case is a very different one and, it
should be recognised at once, one that faces the court with what can only be
regarded as the most unpalatable of choices. It is lesser evils which the court is
searching for here, not perfect solutions. The difficulty and dilemma now before us
can most easily be illustrated by my immediately sketching out a notional set of
4. Suppose that an appellant before SIAC (A) is a suspected terrorist whom it
is proposed to return to Algeria. Such, indeed, is the position of each of the
appellants now before us. Suppose – this, too, is no mere supposition; it has been
common ground before SIAC in a number of cases – that Algeria is a country
where torture is systematically practised by the DRS (Information and Security
Department) and that no DRS officer has ever been prosecuted for it; and that: “in
the absence of [certain assurances from the Algerian Government] there would be
a real risk that on his return to Algeria A (and persons in a similar position) would
be tortured or subject to other ill-treatment” (SIAC’s judgment of 8 February 2007
in G v Secretary of State for the Home Department: Appeal No SC/02/05 – G
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being one of the appellants now before us). Suppose that the Algerian authorities
are hostile to any independent scrutiny of their actions in the human rights sphere:
human rights organisations such as Amnesty and Human Rights Watch are not
permitted to operate there; even the International Red Cross is denied access to
DRS facilities. And suppose, as is also here the case, that the Secretary of State
obtains assurances from the Algerian Government that A’s rights will be respected
on return, the value of these assurances being the principal question at issue on A’s
SIAC appeal.
5. Suppose, then, that A wishes to adduce evidence from someone with inside
knowledge of the position in Algeria asserting that, notwithstanding the Algerian
Government’s official assurances, those in A’s position on return to Algeria are in
fact likely to be subject to torture or other article 3 ill-treatment. Perhaps this
prospective witness (W) was himself ill-treated on return. Perhaps W is a
“whistleblower” working within the Algerian prison service: an official or an
interrogator or a medical practitioner. Perhaps he is a journalist or other outsider
who has obtained particular information as to the fate of those like A on their
return. Suppose that W (whether or not himself still in Algeria) is in a vulnerable
position: he fears future torture or ill-treatment either of himself or of someone
near and dear to him. Perhaps at an earlier stage he had raised his concerns
internally and been threatened that if ever he voiced them abroad his wife or
children would suffer for it.
6. Suppose finally that, such being the circumstances, W is not prepared to
give evidence in A’s appeal to SIAC save only on one unalterable condition,
namely that his identity and evidence will forever remain confidential to SIAC and
the parties to the appeal (A and the Secretary of State). He is concerned in
particular that the Secretary of State might seek to communicate something at least
of his evidence to the Algerian authorities (or indeed to others in such a way as
may bring him to the attention of the Algerian authorities) if only to seek to assess
its veracity and reliability, and that her doing so might place him or his family in
peril, something he is simply not prepared to risk. W, therefore, requires an
absolute and irreversible guarantee of total confidentiality before he will permit his
identity and evidence to be disclosed to the Secretary of State. Is it open to SIAC
to make an order providing for such a guarantee? That, as will shortly appear, is
the central question now before us.
7. It is not, I should make clear at this stage, the appellants’ case that, SIAC
having made an absolute and irreversible order giving W the guarantee he seeks,
W’s evidence will necessarily then have to be regarded by SIAC as properly
before them when finally it comes to their determining the disputed issue as to A’s
safety on return. Rather the appellants propose an intermediate, inter partes
hearing, by which time the Secretary of State must have been provided with full
information as to W’s identity and intended evidence, and at which she will be
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able to contend that, for whatever reason, it would be wrong for SIAC to admit
W’s evidence on the substantive appeal. She may suggest that in reality W has
advanced no coherent case for saying that he is at risk of reprisals. Or she may say
that W’s proposed evidence is inherently implausible and that, without her being
afforded the least opportunity to check its authenticity or credibility or reliability it
would simply not be right to afford it any weight whatever. Or she may have other
arguments to advance. If, having heard them, SIAC then chooses to shut the
evidence out, so be it. If, however, SIAC admits the evidence, then, reluctant
though doubtless they will be to give it the weight it might have been expected to
carry had the Secretary of State been permitted to check it, at least it will be before
them (when ex hypothesi it would otherwise not have been) and in the result SIAC
will have the benefit of the fullest possible picture on a critically important issue in
the appeal: the question of A’s safety on return. It is on this basis and in this
context that the question now arises: in such circumstances can SIAC ever
properly make an absolute and irreversible order (necessarily on an ex parte
application by A without the Secretary of State having an opportunity to resist it),
prohibiting the Secretary of State from ever disclosing to anyone anything of W’s
identity or evidence?
8. This question the Court of Appeal on 29 July 2010 answered in the
negative: [2010] EWCA Civ 898. Giving the only reasoned judgment (with which
Jacob and Sullivan LJJ simply agreed), Sir David Keene (at para 27) concluded
“[I]t is not open to SIAC to make an order giving the absolute and
irrevocable guarantee which is sought by the appellants. This may
create a difficulty for the appellants, because of the reluctance of
their potential witnesses, but it is inescapable. The adverse effect on
them can be mitigated by such steps as anonymity orders and
hearings in private, but irrevocable orders preventing the Secretary
of State from disclosing material to a foreign state in any
circumstances cannot properly be made by SIAC in advance of the
Secretary of State seeing that material. As counsel for the Secretary
of State said at the SIAC hearing, such a proposal is unworkable and
in my view falls outside the scope of SIAC’s powers to give
directions, broad though those powers are.”
9. Before turning to the Secretary of State’s objections I should observe that,
although Sir David there spoke of the appellant’s proposals “fall[ing] outside the
scope of SIAC’s powers”, he had earlier, at para 20, recorded that:
“Mr Tam QC, on behalf of the Secretary of State, accepts that SIAC
could give directions under the Procedure Rules preventing the
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Secretary of State from disclosing such material to any other person,
including the Algerian authorities. He acknowledges that SIAC’s
power under rule 39 (1) to ‘give directions relating to the conduct of
any proceedings’ is expressed in wide and unlimited terms and could
be used in conjunction with the rule 43(2) power to conduct a
hearing in private for any good reason so as to prevent disclosure to
other persons, including the authorities of the appellant’s country of
And that, indeed, I understand to remain the Secretary of State’s position. It is not
for want of jurisdiction that SIAC should never make an order of the sort here
contended for; rather it is because, so the Secretary of State submits, such an order
could never properly be made; it can never be appropriate.
10. Such being the case, I shall not burden this judgment with an exposition and
analysis of all the various rules which arguably bear upon SIAC’s powers but
instead shall turn at once to the Secretary of State’s principal reasons for saying
that no order of the kind here sought should ever be made, notwithstanding that,
for want of it, evidence directly going to the issue of A’s safety on return will on
occasion not be available to SIAC when otherwise it would have been.
11. Essentially, it seems clear, the Secretary of State’s fundamental objection to
an order of the sort proposed is this: such an order having been made, the Secretary
of State may then find herself in possession of information which (whether or not
appreciated by SIAC, A or even W himself) might in one way or another suggest
the existence of a terrorist threat abroad or some other risk to national security.
Viewed in the context of myriad other pieces of information, it may be seen to
form part of a jigsaw or mosaic (one is well familiar with the concept) whereby
such risks come to be recognised. Because, however, of SIAC’s order, the
Secretary of State will be unable to alert the foreign state to the risk, thereby
gravely imperilling future diplomatic relations. True, but for the order, the
Secretary of State would never have been put in possession of the information in
the first place. But, runs the argument, the Secretary of State is in fact worse off
with it than without it. Without it she cannot be criticised. But with it, yet bound
by SIAC’s order to keep it to herself, she may become deeply embarrassed if the
risk were then to eventuate.
12. The court below, at paras 24 and 25 of Sir David Keene’s judgment,
accepted this argument:
“SIAC cannot, it seems to me, tie its hands in advance and say that,
whatever the fresh slant on the material provided by the Secretary of
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State, it will in no circumstances allow disclosure to the authorities
of a foreign state. How could it? It might be that the appellant’s
material, innocuous when seen in isolation, becomes of vital
diplomatic importance once combined with material in the
possession of the Secretary of State. As was explored in argument, it
might reveal a potential terrorist risk within the foreign state. It
might indicate that, instead of the appellant having been the
perpetrator of a terrorist outrage, as suspected hitherto, the true
culprit remains at large in a foreign state and presents a real and
immediate threat to that state.
It is no answer for Mr Fordham to argue that, without the cast-iron
and irrevocable guarantee of non-disclosure, the British Government
would not even come into possession of the information. That is true,
but the consequences for the United Kingdom’s diplomatic relations
differ radically between the two scenarios. If this country’s
government is in possession of information indicating the existence
of a risk of a terrorist outrage in a foreign state with which we have
friendly relations and it does not warn that state, the potential impact
on the United Kingdom’s diplomatic relations with that state could
be very serious indeed if it ever became known that our government
knew of the risk. If, however, the government does not possess such
information, then while the terrorist risk to the foreign state may
remain the same, this country could not be accused of withholding
vital information, and our diplomatic relations would not be
13. I confess to finding the argument a good deal less persuasive than did the
Court of Appeal. Nor to my mind was it made good by a post-hearing note
submitted by the Secretary of State at our invitation giving five examples of
prospective scenarios (understandably at a high level of generality) suggested to
illustrate the problem. In all five examples, as it happens, the Home Secretary’s
stated concern is at her inability to communicate not with the country to which she
proposes deporting A (here Algeria) but rather with some other foreign country
(country C) to which, let us suppose, W, a known terrorist mastermind who trains
suicide operatives, now says that he has moved (following torture on his return to
Algeria), something about which the Secretary of State would wish to inform
country C (an example in fact suggested by Lord Kerr during the hearing).
14. 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
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State was subject to a final and absolute court order prohibiting her from acting
15. After all, as the appellants point out, a number of recent international
instruments are replete with statements urging states to ensure that witnesses are
protected against ill-treatment or intimidation, particularly in a human rights
context – see, for example, article 13 of the UN Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment; Principle 3(b) of
Annex I to the Istanbul Protocol Principles on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment; paras 3, 7, 12, 13 and 20 of the 28 July 2010 Report of the United
Nations High Commissioner for Human Rights on the Right to the truth; and para
3.2.8 (under the heading, Handling reluctant Sources) of the November 2010 EU
common guidelines on (Joint) Fact-Finding Missions.
16. In short, I regard the Secretary of State’s concerns at learning more than she
is permitted to divulge as an insufficient ground on which to deny A and SIAC the
possible benefits of W’s evidence. That said, I do not overlook the radical nature
of orders of the sort proposed here, nor, indeed, the kinds of difficulty they may
bring in their wake. In the first place, such orders could be thought to come
perilously close to offending against basic principles of open justice. There is
nothing novel, of course, in the making of ex parte orders. But it is difficult to
think of any other situation in which a respondent would be unable to seek release
from a permanent injunction – in this case, not to communicate his knowledge to
others. The respondent can, as indicated, object at the inter partes hearing to the
material being used at the eventual substantive hearing. But that is by no means
the same thing as seeking to overturn the original order.
17. There is, moreover, as the respondent points out, the further difficulty that,
even though theoretically it will be open to SIAC at the inter partes hearing to rule
out W’s evidence, it may be difficult for them to ignore it entirely. SIAC are, after
all, required by section 5(6)(a) of the 1997 Act and by rule 4(3) of their 2003 Rules
to ensure that on the material before them they can properly determine the
proceedings. And there could hardly be a more important issue in those
proceedings than that of A’s safety on return. It is that consideration, indeed,
which weighs so very heavily in A’s favour in justifying the making of these
proposed orders in the first place, given that without them SIAC will by definition
never see the material. There is the obvious further problem with regard to
evidence adduced on the basis proposed that the Secretary of State will be largely
unable to investigate it and will find it difficult, therefore, to explain or refute it.
Accordingly, the very making of the initial order must to a degree undermine the
likely weight of the evidence and devalue its overall worth.
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18. In the last analysis, however, none of these considerations to my mind
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.
19. I would rule, therefore, that it is open to SIAC to make such absolute and
irreversible ex parte orders as are here contended for and that on occasion it may
be appropriate to do so. This is, I conclude, the least worst option open to us – the
lesser of two evils as I put it at the outset. But at the same time I should make plain
that I am far from enthusiastic about such orders and would certainly not expect a
rash of them. Rather it would seem to me that the power to make them should be
most sparingly used. There is, of course, the risk that the very availability of such
orders may be exploited by the unscrupulous in the hope that SIAC may thereby be
induced to receive untruthful evidence which, had it in the ordinary way been
subject to full investigation, would have been exposed as such.
20. I would advocate that before making one of these proposed ex parte orders,
SIAC should require the very fullest disclosure from A of (a) W’s proposed
evidence (namely a detailed final statement or proof of evidence depending upon
whether it is proposed to adduce the evidence orally or in writing, and if the latter
why in writing), (b) the particular circumstances in which W claims to fear
reprisals, and (c) how A and his legal advisers came to hear about W’s proposed
evidence and what if any steps they have taken to encourage him to give that
evidence in the usual way subject to the usual steps generally taken to safeguard
witnesses in these circumstances, namely by anonymity orders and hearings in
21. If, moreover, one of these orders is made and it does then come to appear to
the Secretary of State that the information disclosed may indeed be of some
importance with regard to national security concerns, whether here or abroad, it
should be open to the Secretary of State to try to persuade SIAC either to seek
from A and W a sufficient waiver of the ex parte order forbidding any further
communication of the information to enable these national security concerns to be
met or, if such waiver, unreasonably in SIAC’s view despite their recognition of
W’s fears, proves unobtainable, to shut out (or regard with additional scepticism)
the evidence submitted. This power, in other words, should be exercised sensibly
as well as sensitively, there being ample room for flexibility in its operation
notwithstanding the absolute and irreversible nature of whatever order may
initially be made.
22. I should perhaps add this. In striking the balance in this way, I am in no way
influenced by the consideration that, as earlier stated, there are circumstances in
which the Secretary of State for her part is on occasion entitled to adduce evidence
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in closed proceedings divulged only to a special advocate and not to A. I do not
see the scope for orders of the sort contended for here as, so to speak, “levelling
the playing field” or “providing equality of arms” between the parties. The plain
fact is that the Secretary of State is acting in these cases in the wider public
interest, not as an interested party. She is, for example, obliged (now under the
rules) to search for and disclose material, both open and closed, which may
possibly assist A’s case. (He, of course, is under no corresponding duty towards
the Secretary of State.) And the special advocate will to the best of his ability serve
A’s interests, procuring on occasion rulings which may preclude the Secretary of
State from relying on material however apparently damning to A’s cause. As Sir
David Keene observed below (at para 26): “The reality is that the position of an
appellant and the position of the Secretary of State are not comparable, because of
the public responsibilities of the latter.”
23. Since completing this judgment I have seen in draft the judgment of Lord
Dyson and agree with him also.
24. I would accordingly allow these appeals to the extent indicated. It must, of
course, now be for SIAC to consider what, if any, impact our decision has upon the
outcome of these appellants’ individual appeals: whether there is a need now to
reopen them and what, if any, orders should now be made. It is to be hoped that no
further order (save as to costs as to which the parties may have 28 days for written
submissions) is required from this court.
25. National security issues continue to present difficult challenges to the
courts. Lord Brown has explained the problem that is raised by the facts of the
present case. The appellants are all Algerian nationals whom the Secretary of State
for the Home Department decided under section 3(5)(a) of the Immigration Act
1971 to deport to Algeria on the basis that their presence in the United Kingdom is
not conducive to the public good on grounds of national security. They appealed to
the Special Immigration Appeals Commission (SIAC) who held that they posed a
risk to national security and that the decisions to deport them were lawful and
compatible with the European Convention on Human Rights (“the Convention”).
Their appeals were dismissed by the Court of Appeal.
26. The issue in all these cases is whether, if returned to Algeria, there is a real
risk that the appellants would be subjected to ill-treatment at the hands of the
Algerian Authorities (AAs) contrary to article 3 of the Convention. One of the
appellants (Z) was in a position to put forward material from a source or sources in
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Algeria which was relevant to safety on return. But the source(s) feared reprisals
in Algeria if there were to be any disclosure of their identity to the AAs. They
were willing to tell their story to SIAC (and indeed to the Secretary of State), but
only on an absolute and irrevocable assurance that there would be no onward
disclosure to the AAs.
27. Rule 4(1) of the Special Immigration Appeals Commission (Procedure)
Rules 2003 (SI 2003/1034) (“the SIAC Rules”) provides that, when exercising its
functions, SIAC shall secure that information is not disclosed “… in any other
circumstances where disclosure is likely to harm the public interest”. Rule 39(1)
confers on SIAC the power to give directions “relating to the conduct of any
proceedings”. Subrule (2) provides that the power to give directions is to be
exercised subject to the obligation in rule 4(1); and subrule (5) provides that
directions under rule 39(1) may in particular “(e) relate to any matter concerning
the preparation for a hearing”. Rule 43(2) enables SIAC to conduct a hearing or
part of a hearing in private for any good reason (in addition to the reason identified
in rule 43(1) which is not material to the appeal). It is common ground that these
rules are wide enough to give SIAC the jurisdiction to make an absolute and
irrevocable order prohibiting the Secretary of State from disclosing material to any
person and to do so at or after a hearing from which the Secretary of State is
excluded. The question is in what circumstances (if any) it may be appropriate to
make such an order (which I shall refer to as “an irrevocable non-disclosure
28. For the appellants, Mr Fordham QC submits that SIAC has the power to
make such an order although it has not received informed representations from the
Secretary of State as to whether the order should be made. It is able subsequently
to hear informed representations from the Secretary of State as to the admission of
the material in evidence.
29. For the Secretary of State, Mr Tam QC accepts that there may be cases
where an appellant is found to have good reasons for wishing to keep certain
material confidential and this might provide a sound basis for SIAC to exercise its
power to hold a private hearing under rule 43 and make an irrevocable nondisclosure order. But he submits that it is never appropriate to make such an order
on the basis of a hearing from which the Secretary of State is excluded and she
should always be given the opportunity to apply subsequently to vary or discharge
the order.
30. In testing these submissions, it should be borne in mind that, as is illustrated
by the circumstances of the present appeals, two conflicting considerations are in
play here. On the one hand, the appellants say that, unless the order that they seek
is made, they will be unable to place material before SIAC which may be crucial to
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their case that, if returned to Algeria, they face a real risk of ill-treatment by the
AAs contrary to article 3 of the Convention. If they are able to persuade SIAC of
this risk, their appeals will succeed. Thus, the appellants say that it is essential to
their case that they are able to place this evidence before SIAC: the stakes could
hardly be higher for them (short of a risk to life itself). They also rely on rule 4(3)
of the SIAC Rules which provides that subject to paragraphs (1) and (2), SIAC
“must satisfy itself that the material available to it enables it properly to determine
proceedings”. In other words, it has a duty to ascertain all relevant facts.
31. On the other hand, it is said on behalf of the Secretary of State that there are
important countervailing considerations both in relation to the conduct of the
appeals and more generally. So far as the conduct of the appeals is concerned, the
ability of the Secretary of State to participate in them effectively may be seriously
undermined by an irrevocable non-disclosure order. There are two aspects to
consider. First, the cogency and validity of the reasons asserted by the source(s) in
support of the claimed need for confidentiality may be open to question, but the
Secretary of State will be denied the ability to test the reasons or to obtain
information and/or adduce evidence from or with the assistance of the AAs to
demonstrate that the asserted reasons for the claim to confidentiality are
32. Secondly (and of perhaps even greater importance) is the fact that the
Secretary of State may be seriously disadvantaged in her ability to test and
challenge the substance of the evidence of the witness(es). The effect of the order
may be to deprive the Secretary of State of the ability to place before SIAC
relevant evidence which it should properly consider in deciding the substantive
issues arising in the appeals. This would occur, for example, if the AAs were able
to provide information bearing on the issue of safety on return of the appellants,
but could not do so unless the identity of the witness(es) and what they have to say
are disclosed to them. Once the authorities know the identity of the witness(es) and
the substance of their evidence, the authorities might be able to demonstrate that
what is said about the risk to the appellants on return to Algeria is false. I should
add that the SIAC Rules do not make provision for the appointment of special
advocates to represent the interests of the Secretary of State and it is (rightly) not
suggested that SIAC could appoint special advocates under any of the powers
conferred by the general rules. It follows that the difficulties to which the Secretary
of State draws attention cannot be overcome or even mitigated by the appointment
of a special advocate.
33. In addition to the problems that are likely to be suffered by the Secretary of
State in relation to the appeals, she says that irrevocable non-disclosure orders may
also cause collateral prejudice. It became clear during the course of the argument
that this prejudice is the potential risk of harm to future diplomatic relations with a
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friendly foreign state. This is a factor which carried considerable weight with the
Court of Appeal and which Lord Brown deals with at paras 11 to 15.
34. In weighing these competing considerations, I have no doubt that the scales
come down in favour of making an irrevocable non-disclosure order where SIAC
is satisfied that such an order is necessary in the interests of justice. I agree entirely
with what Lord Brown says at paras 19 to 21 as to how the power to make an order
should be exercised. SIAC should be astute to guard against the danger of abuse
and should scrutinise with great care and test rigorously the claimed need for an
order. But if SIAC (i) is satisfied that a witness can give evidence which appears to
be capable of belief and which could be decisive or at least highly material on the
issue of safety of return and (ii) has no reason to doubt that the witness genuinely
and reasonably fears that he and/or others close to him would face reprisals in
Algeria if his identity and the evidence that he is willing to give were disclosed to
the AAs, then in my view an irrevocable non-disclosure order should be made.
35. I accept that to make 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. To make an order without giving the Secretary of State an
opportunity to be heard is a clear breach of the principles of natural justice. Any
such order requires compelling justification.
36. Regrettably, however, the circumstances of a case sometimes call for
unusual and undesirable remedies. Ultimately, the court has to decide what is
demanded by the interests of justice. In weighing the prejudice that the Secretary
of State may suffer in the appeal process as a result of an irrevocable nondisclosure order, it should not be overlooked that the appeals themselves will be
conducted entirely inter partes. In particular, no material that is placed before
SIAC by the appellants will be withheld from the Secretary of State. She may be
able to demonstrate that the claimed need for confidentiality is without foundation
and to persuade SIAC to give the evidence little or no weight for that reason alone.
She may also be able to test the evidence of the witness(es) effectively even
though she has been unable to discuss it with the AAs. For example, she may be
able to show on the basis of objective general material about the conditions in
Algeria that the evidence of the witness is unlikely to be true; and even where the
evidence is more specific, she may be able to obtain information from the AAs
which will enable her to rebut the evidence without divulging the name or identity
of the witness or saying anything which might lead to his or her identification. It
will, of course, depend on the nature of the evidence to be given by the witness. I
do not wish to suggest that the effect of an irrevocable non-disclosure order may
not inhibit the ability of the Secretary of State to resist the appeals. In some cases,
such an order will undoubtedly have that effect. But it cannot safely be said that it
is bound to do so in every case.
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37. As regards the collateral prejudice claimed by the Secretary of State, like
Lord Brown I consider that this has relatively little weight for the reasons that he
38. In my view, if SIAC concludes that the two conditions to which I have
referred at para 34 above are satisfied, then the countervailing considerations relied
on by the Secretary of State should not outweigh the need to ensure that the
appellants are able to deploy any material which might show that, on return to
Algeria, they would face a real risk of treatment contrary to article 3 of the
Convention. The same considerations and the same result would follow if the case
raised a question under article 2 of the Convention. But if the ground on which an
appellant is resisting deportation is an alleged risk of breach of some other article
of the Convention, the balance will almost certainly be struck the other way. For
example, in many appeals against orders for deportation, the ground of appeal is
that to deport the appellant would involve a breach of his or her article 8 rights. I
find it difficult to conceive of a case in which it would be appropriate to make an
order in order to protect the wish for confidentiality of a witness in those
39. For these reasons as well as those given by Lord Brown (with which I am in
entire agreement), these appeals should be allowed to the extent indicated.
40. We agree with both the judgments of Lord Brown and Lord Dyson.