Assuring witness of total confidentiality

The Court of Appeal had also dismissed the appellants’ appeals from the Special Immigration Appeals Commission which had rejected their challenges to the Home Secretary’s decisions to deport them on grounds of national security.

The appellants appealed to the Supreme Court only on the issue of the Court of Appeal’s ruling.

Mr Michael Fordham, QC and Ms Stephanie Harrison for the appellants; Mr Robin Tam, QC and Mr Robert Palmer for the Home Secretary.

LORD BROWN referred to the basis on which the appeals had been brought: an appellant (A), a suspected terrorist to be deported to Algeria, feared ill-treatment on return in breach of article 3 of the European Convention on Human Rights despite the Home Secretary having obtained diplomatic assurances to the contrary;

A wished to adduce evidence of inside knowledge from W on that issue; but fearing reprisals, W required an absolute and irreversible guarantee of total confidentiality before he would permit his identity and proposed evidence to be disclosed to the Home Secretary;

If such an order were made (necessarily ex parte without the Home Secretary being able to resist it), the appellants proposed that an inter partes hearing would then be held at which the Home Secretary, provided with full information of W’s identity and intended evidence, could contest admission of the evidence on the substantive appeal.

His Lordship said that the Home Secretary accepted that the commission had power to make such an order, but submitted it could never properly be made; it could never be appropriate.

He referred to her fundamental objection, which the Court of Appeal had accepted, that if the order were made she might be in possession of information suggesting a terrorist threat abroad, which she could not disclose, thereby imperilling future diplomatic relations.

His Lordship did not regard that objection as sufficient to deny A and the commission the possible benefits of W’s evidence. His Lordship did not overlook the radical nature of the proposed orders: they could be thought to come perilously close to offending against basic principles of open justice.

There was nothing novel in making ex parte orders. But it was difficult to think of any other situation where a respondent could not seek release from a permanent injunction. The Home Secretary could object at the inter partes hearing to the material being used at the substantive hearing, but that was by no means the same thing.

Even though the commission could rule out W’s evidence at the inter partes hearing, it might be difficult for them to ignore it entirely. They were, after all, required by section 5(6)(a) of the Special Immigration Appeals Commission Act 1997 and rule 4(3) of the Special Immigration Appeals Commission (Procedure) Rules (SI 2003/1034) to ensure that on the material before them they could properly determine the proceedings.

There could hardly be a more important issue in those proceedings than that of A’s safety on return. It was that consideration that weighed so heavily in A’s favour in justifying the orders, given that without them the commission would by definition never see the material.

There was the obvious further problem that the Home Secretary would be largely unable to investigate the proposed evidence and would therefore find it difficult to explain or refute it. Accordingly the very making of the order to a degree undermined the likely weight of the evidence and devalued its overall worth.

But none of those considerations outweighed the imperative need to maximise the commission’s chances of arriving at the correct decision on the article 3 issue and its need, therefore, to obtain all such evidence as might contribute to that task.

His Lordship would rule that it was open to the commission to make such absolute and irreversible ex parte orders and that on occasion it might be appropriate to do so. But he was far from enthusiastic about the orders; the power to make them should be used most sparingly.

Before such an order were made, the commission should require the fullest disclosure from A of: (a) W’s proposed evidence; (b) the particular circumstances in which W claimed to fear reprisals; and (c) how A and his legal advisers came to hear of the proposed evidence and what, if any, steps they had taken to encourage W to give that evidence in the usual way subject to the usual safeguards for witnesses in such circumstances.

His Lordship would allow the appeals to that extent. It was now for the commission to consider what impact, if any, the Supreme Court’s decision had on the outcome of the individual appeals: whether there was now a need to reopen them and what, if any, orders should now be made.

Lord Dyson delivered a concurring judgment. Lord Phillips, Lord Kerr and Lord Wilson agreed with both judgments.

Solicitors: Luqmani Thompson & Partners, Wood Green; Birnberg Peirce & Partners; Tyndallwoods Solicitors, Birmingham; Treasury Solicitor.