XX v Secretary of State for the Home Department

This is an appeal against a decision of the Special Immigration Appeals Commission (“SIAC”) by which they dismissed XX’s appeal against a decision of the Secretary of State for the Home Department to deport XX to Ethiopia for reasons of national security. The issues in the appeal to this court go to the question whether SIAC erred in law in finding that XX’s deportation would not be in breach of articles 3, 5 and 6 of the European Convention on Human Rights. Permission to appeal was granted in July 2011 following a contested hearing (see [2011] EWCA Civ 860).

XX is an Ethiopian national who came to the United Kingdom in 1992 and was subsequently granted indefinite leave to remain. Between 2000 and 2005, having become a committed Muslim, he made various trips to Ethiopia. In May 2005 he went to Somalia. In September 2005 he flew from there to Dubai and then to Ethiopia, where he learned that one of his brothers, his two sisters and the husband of one of them had been arrested and were detained in connection with the failed bombing attacks in London on 21 July 2005. He remained in Ethiopia until December 2006, when he attempted to return to the United Kingdom. He was stopped at Bole airport and was transferred into the custody of the Ethiopian Security Service (“the NISS”). He was detained for two weeks and questioned about his trip to Somalia, the failed attacks of 21 July 2005 and those involved in them. He was then released and, after a short time with his family in Addis Ababa, he flew to the United Kingdom on 27 December 2006.

A few days earlier a decision had been taken to exclude him from the United Kingdom; and on his arrival he was detained and refused leave to enter. His indefinite leave to remain was cancelled. In January 2007 he was arrested under the Terrorism Act 2000, questioned and released without charge into immigration detention. He filed a notice of appeal to SIAC against the decision to exclude him. Eventually, on 11 January 2008, he was again granted indefinite leave to remain, with the result that his appeal was treated as abandoned. On the same day he was served with a non-derogating control order. In a judgment handed down on 12 August 2008, Keith J held that the statutory conditions for making and upholding a control order were satisfied but that the cumulative effect of the terms imposed on XX by the order was such as to render the order unlawful. There were subsequent appeals to the Court of Appeal and the Supreme Court but it is unnecessary to deal with them because the control order was revoked on 2 July 2009.

Revocation of the control order followed a decision by the Secretary of State on 21 May 2009 to deport XX on conducive grounds. XX appealed to SIAC against that decision and was meanwhile released on bail. SIAC dismissed the appeal on 10 September 2010. That is the decision against which the present appeal is brought.

In setting out the reasons for their decision SIAC gave not only an open judgment and a closed judgment but also a third, confidential judgment, arising out of the fact that certain documents that should have been treated as closed material had been disclosed mistakenly to XX’s open advocates and, rather than requiring those advocates to hand back the documents and put them out of mind, SIAC directed that the part of the hearing relating to those documents should be held in private, excluding the public and XX himself but not XX’s open advocates. At the hearing before us we followed, by agreement of the parties, the same procedure as had been adopted before SIAC, so that in addition to open hearings and a closed hearing we had short hearings in private to deal with the subject-matter of SIAC’s confidential judgment. Similarly, the reasons for our decision on this appeal are contained in three separate judgments: an open judgment, an “in private” judgment and a closed judgment. The nature of the case, however, is such that the principal reasons for our decision can be given in the open judgment.

For obvious reasons I confine my attention here to SIAC’s open judgment. SIAC did not suggest that the conclusions expressed in their open judgment were altered by anything contained in the confidential or closed judgments.

The judgment dealt shortly with the national security case against XX, which he did not challenge. The case was based on four propositions, of which three were found to be material: (i) XX attended what the Security Service strongly assessed to have been a terrorist training camp in Cumbria in May 2004; (ii) he regularly associated with known extremists in the United Kingdom; and (iii) he was assessed by the Security Service to have participated in terrorist training in Somalia between May and September 2005. Having considered each of those matters, SIAC were satisfied on the balance of probabilities that XX was, in 2004 and 2005, closely associated with individuals who went on to carry out terrorist acts in and against the United Kingdom; that he shared and supported their views; and that he then posed, and continued to pose, a threat to the national security of the United Kingdom.

SIAC then turned to examine the ECHR grounds on which XX resisted deportation, dealing first with article 3 and then with articles 5 and 6.

As to the risk of ill-treatment contrary to article 3, they referred to the “extensive, well documented and well founded criticisms of the [Ethiopian] government’s record on political and human rights”, including reported instances of arbitrary detention and abuse and mistreatment of detainees. They considered evidence relied on by the appellant concerning the treatment of certain individuals held in detention, concluding that the experience of those individuals did not support XX’s case that he would face article 3 ill-treatment on return. They rejected a contention, pursued before us in the first ground of appeal, that they were not entitled to take into account any evidence or information adverse to XX’s case arising out of or to do with the unlawful detention of such individuals.

They then considered material showing that “the Ethiopian Government faces a continuing threat from its traditional internal and external enemies – the ONLF, the OLF, Eritrea and Somalia (or at least significant armed groups in Somalia)”. They readily accepted that, assurances apart, there would be substantial grounds to believe that anyone in that category would face a risk of article 3 ill-treatment. But they pointed to the fact that in each case considered by the Strasbourg Court, “the Court was concerned with the risk to the individual applicant in the light of what the security forces of the receiving state would know or believe about him”, and they therefore proceeded to examine what the Ethiopian authorities would know or believe specifically about XX.

As to that, they referred to a Note Verbale dated 23 June 2009 by which the proposal to deport XX was notified to the Ethiopian authorities. The Note gave the reasons as follows:

“Mr XX is believed to have attended a training camp in the United Kingdom run by a person who has subsequently been charged with offences under the Terrorism Act in relation to the provision of terrorist training.

Mr XX is also assessed to have participated in terrorist training in Somalia and is linked to individuals involved in the failed terrorist attacks in London on 21 July 2005.

Given his participation in terrorist training activity and his links to extremist individuals it is considered that there is a real risk that Mr XX will become involved in terrorist activity in the United Kingdom ….”

SIAC were satisfied that the British Government had not made any further relevant allegation about XX to the Ethiopian authorities. Further, XX’s account of his interrogation by the NISS in December 2006 confirmed that which SIAC knew from other sources, that the Ethiopian authorities had precisely the same information about him in December 2006 as they were told in summary form in the Note Verbale of June 2009. It was therefore possible to establish with confidence what the Ethiopian authorities knew about him. He had done nothing directly to threaten the interests or security of the government and inhabitants of Ethiopia. He was not associated with any of the groups which posed an active internal threat to the Ethiopian Government or state. The judgment continued, in a passage about which specific criticism is made in the second and third grounds of appeal:

“19.

… The principal circumstance in which the Ethiopian Government might have believed that he posed a threat to Ethiopians – fighting against the Ethiopian troops in Somalia – no longer existed, following the withdrawal of Ethiopian troops from Somalia. Mr Otty submits that because the Security Service has asserted that XX attended a camp in Somalia in 2005 run by Adnan Ayro, the Ethiopian police and Security Service would regard him as a serious current threat to Ethiopian interests. We do not agree. In 2007 Adnan Ayro became the first acknowledged leader of a group which has now achieved notoriety by its claim (which may be false) of responsibility for the double suicide bombings in Kampala on 11 July 2010 – Al Shabaab. He was killed by an American missile strike in May 2008. Al Shabaab fought against the Ethiopian forces in Somalia until their withdrawal in January 2009. It claims to have driven them out and has, in Mr Debebe’s words, ‘declared war’ on Ethiopia. It is a potential source of support for the ONLF. We readily accept that if XX were to be perceived as an active member or supporter of Al Shabaab, he might be regarded as a threat to Ethiopian interests; but that perception would be based on a chain of reasoning so stretched as to be fanciful – because he was trained at a camp which was run by a man who later became the declared leader of a group which later fought against Ethiopian troops and which might now support another group which threatens Ethiopian interests, so he must be regarded as a current threat. That might provide an excuse for detaining and prosecuting him … but it could not provide a sensible reason for doing so. XX was not ill-treated when detained and interrogated in December 2006 (at a time of particular concern for the Ethiopian authorities, because that was when Ethiopian forces were first deployed in Somalia). There is no reason to believe that, as far as prohibited ill-treatment goes, he would be treated any differently now ….”

Thus, SIAC were satisfied that, despite the background evidence of serious human rights abuses in Ethiopia, there was no real risk that XX would be subjected to article 3 ill-treatment during or for the purposes of interrogation about the allegations made against him by the British Government or about any other topic.

Nevertheless they went on to consider the effect of a Memorandum of Understanding (“MoU”) signed by the British and Ethiopian Governments on 12 December 2008, together with a related exchange of side letters. The MoU included agreement by the governments to comply with their human rights obligations under international law regarding any person in respect of whom assurances were given under the MoU. Provision was made for an independent monitoring body. The MoU itself contained eight numbered assurances, including the following:

“1.

If arrested, detained or imprisoned following his deportation, the person will be afforded adequate accommodation, nourishment, and medical treatment, and will be treated in a humane and proper manner, in accordance with the national and international obligations of the receiving state.

2.

If the person is arrested or detained, he will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. The person will be entitled to consult a lawyer promptly.

3.

If the person is a civilian and is arrested or detained, he will be brought promptly before a civilian judge or other civilian official authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided.

4.

Any person who is detained but who at the end of a court-supervised investigation is not charged with an offence, or is found not guilty of any offence, will be released promptly.

5.

The person will have unimpeded access to the monitoring body unless they are arrested, detained or imprisoned. If the person is arrested, detained or imprisoned within 3 years of the date of his return, he will be entitled to contact promptly, and in any event within 48 hours, a representative of the monitoring body. Thereafter he will be entitled to regular visits from a representative of the monitoring body and, in the event of an allegation of ill-treatment, the monitoring body will have access to the person without delay.

…

7.

If the person is a civilian and is charged with an offence he will receive a fair and public hearing without undue delay by a competent, independent and impartial civilian tribunal established by law ….”

SIAC noted and examined the concern of reputable and experienced human international rights organisations that the assurances would be disregarded or flouted if the Ethiopian Government thought that it was in its interests to do so. They observed that the giving of the assurances had been expressly authorised and approved at the highest levels of the Ethiopian Government. The Government had also agreed to accept XX’s return under the terms of the MoU. In SIAC’s view, the circumstances in which that assurance was given, which were set out in the confidential and closed judgments, confirmed the commitment of the Government and all necessary elements within it to fulfilment of the assurances in the specific case of XX. The judgment continued:

“22.

… We are satisfied that it is, and will be perceived by the Government of Ethiopia to be, in its interests to ensure that the assurances are fulfilled. It would have nothing to gain and much to lose if it did not do so. So would any government dominated by the successors of those now in office. It is primarily for that reason, rather than because of the arrangements which have been put in place for monitoring compliance … that we are satisfied that there is no real risk that he would be subjected to prohibited ill-treatment by NISS or any other interrogator.”

They said that without that confidence they would not have held that the relevant monitoring body, the Ethiopian Human Rights Commission, could, simply by reason of its existence and the rights given to it under the MoU, have prevented or deterred state agencies from ill-treating XX. It was not an independent body and it was effectively beholden to the Government. SIAC said of it:

“23.

…. Our judgment is that it offers a reasonable partial safeguard against breaches of the memorandum. It could not, and would not, challenge a deliberate breach by the government, but could detect and would report upon unauthorised breaches by lower ranking officials. Its usefulness in the case of XX, accordingly depends upon the reasons stated above for believing that the Government will fulfil its promises: that it is in its interests to do so.”

Turning to articles 5 and 6, SIAC referred to the evidence of the expert witnesses, Mr Debebe for the Secretary of State and Mr Semeneh for XX. They described Mr Debebe in glowing terms, as a lawyer of probity and a man of courage, and they accepted his evidence about Ethiopian law and practice and expressed confidence in his opinions. As to the risk of prosecution of XX, they said this:

“27.

… Mr Debebe is of the opinion that on the facts known to the United Kingdom Government and communicated to the Ethiopian authorities … XX has committed no offence under Ethiopian law. He could only successfully be prosecuted if there were evidence that he had, by his activities, participated in some way in acts directed at and hostile to Ethiopia. Mr Debebe accepted that if XX had associated with members of Al Shabaab and had undertaken training to advance the aims of Al Shabaab which were hostile to Ethiopia, he could face prosecution and conviction for crimes against the national state …. On all of the information which we have, there is, as of now, no such evidence available to the Ethiopian authorities. Accordingly, we share Mr Debebe’s expressed view that the prosecution of XX would be both very difficult and very unlikely.”

They said that the evidential gap could only be filled by a confession by XX, first that he had received or participated in terrorist training and secondly that it was in some way directed against the Ethiopian state. For the reasons already given, however, there was no reason to think that he would be ill-treated for the purpose of coercing him to make a confession, any more than when he was detained and questioned in December 2006. Further, paragraphs 1 and 2 of the numbered assurances in the MoU would suffice to protect him from ill-treatment intended to procure a confession. The judgment continued:

“28.

… For those reasons, we are satisfied that there are no substantial grounds for believing that there is a real risk that he would be subjected to a trial process so flagrantly unfair that the United Kingdom could not deport him without infringing his rights under Article 6. Mr Otty accepts that Articles 5 and 6 stand together for this purpose, so that that finding would preclude any separate finding that the United Kingdom would be in breach of its obligations to him under Article 5.”

SIAC referred next to the fact that it was common ground that there were very serious shortcomings in the Ethiopian criminal justice system, as identified by Mr Debebe. There were long delays between detention by the police and final disposal of the case. Except in cases in which an individual could afford to pay privately for the services of a lawyer, legal representation was usually only available immediately before and during the final stages of the trial process. Prison conditions were poor and prison visiting difficult or impossible. Most judges did not understand and apply human rights law accurately. The independence of the judiciary was regularly questioned, though Mr Debebe’s own example suggested that the question might not always or even often be justified: in his view it was the competence of the judges, rather than their independence, which was the fundamental problem. In some political cases, the police disregarded court orders. SIAC posed the question whether it would be a breach of articles 5 and 6 if, contrary to their view, there was a real risk that XX would be exposed to trial in a system of justice with those shortcomings. They answered the question in this way:

“29.

… The jurisprudence is tentative and obscure …. Our view, for what it is worth, is that the United Kingdom would not be in breach of those obligations if it were to deport him to face a trial in those circumstances unless the evidential foundation for his prosecution and conviction was a confession procured by torture or ill-treatment of such severity as would amount to a breach of Article 3 in a Convention state.”

Returning to the MoU, SIAC referred to the views of Mr Semeneh and Mr Debebe on the topic (albeit it was outside their expertise as lawyers). Mr Semeneh said that the Ethiopian Government would pretend to fulfil its bilateral promises to the United Kingdom; Mr Debebe was confident they would in fact do so. His view corresponded with that of Mr Layden, the principal witness for the Secretary of State. SIAC said that their joint view carried great weight, and accepted it. Accordingly they were satisfied that the Secretary of State could rely securely on the promises made by the Government of Ethiopia in the MoU.

All this led in the open judgment to a concluding paragraph expressed in these terms:

“32.

Applying the yardsticks identified in BB [i.e. the case reported on appeal to the House of Lords as RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110], we are satisfied that the assurances, if fulfilled, are such that XX will not be subjected to treatment contrary to Article 3, that the assurances have been given in good faith, that there is a sound objective basis for believing that they will be fulfilled and that, by reason of the right guaranteed to XX by paragraph 5 of the Memorandum of Understanding, to contact and receive visits from the EHRComm …, the assurances are capable of being verified. (If he is detained and no contact occurs, it will be obvious that something has gone wrong.). For substantially the same reasons, we are satisfied that the United Kingdom would not be in breach of its obligations to XX under Articles 5 and 6. Accordingly, we dismiss this appeal.”

An appeal from SIAC’s decision lies only on a point of law. The grounds in respect of which permission to appeal was granted are these:

There is a substantial overlap between the first part of ground 2 and the first part of ground 3, in that the risk of ill-treatment and the risk of prosecution involve consideration of the same material. But the submissions followed the sequence of the grounds and it is convenient to adopt the same course in this judgment.

Embedded in ground 2 is an application for this court to admit fresh evidence, which is deployed in support of a submission based on E and R v Secretary of State for the Home Department [2004] QB 1044 that in their assessment of risk SIAC made an error of fact amounting to an error of law.

The appellant argued before SIAC that, in determining the risks he would face on return to Ethiopia, they were not entitled to take into account any evidence adverse to his case obtained as a result of the attendance by UK Security Service officers at unofficial detention centres in Ethiopia where prolonged, arbitrary and incommunicado detention was occurring. SIAC rejected the argument, for reasons given at para [16] of their judgment. They said the consequence of the argument, if accepted, would be that SIAC would be required to accept as true evidence about matters which other evidence or information might convincingly disprove. They cited the example of a man called Salim who gave evidence for the appellant that he had been interrogated for two months in the presence of British personnel: if the argument was right, they would not be able to take into account any evidence or information from or about the British personnel referred to by Salim which contradicted his account, even if they believed it to be true. Unless mandated by binding authority, that was not a conclusion they were willing to reach. They referred to the authorities establishing that evidence procured by torture is inadmissible, except to prosecute the torturer. They accepted that unacknowledged detention of an individual, at least of significant duration, is a “complete negation” of the rights protected by article 5 ECHR. They continued:

“But it does not follow that no evidence can be given about it except to prosecute the jailor – the effect of the application of the rule in torture cases. There is no internationally acknowledged principle – or jus cogens – prohibiting detention except in circumstances prescribed by internationally accepted laws, nor any international agreement that unlawful detention is a crime of such gravity that no evidence resulting from it – still less any evidence about it – should be admitted in proceedings before an English court. If there were such a rule, it could not be one-sided. In the illustration considered, Salim’s account of his interrogation would be inadmissible as well.”

By ground 1 the appellant challenges SIAC’s conclusion on that issue. It is contended that central aspects of SIAC’s reasoning – the point about jus cogens and the point that any such rule could not be one-sided – were flawed.

For the purposes of the appeal it has to be assumed that SIAC may have taken into account evidence of the kind in issue. The Secretary of State neither confirms nor denies that the closed material contains any such evidence. If the appeal were to succeed on this ground, the case would have to be remitted for SIAC to determine whether any of the evidence previously taken into account fell to be excluded from consideration in the light of the ruling of this court.

The first step in the appellant’s argument is that there is an internationally acknowledged principle equivalent to a peremptory norm of general international law, or jus cogens, prohibiting what Mr Otty referred to in shorthand as “secret detention”. The shorthand is convenient but its content lacks precision. Mr Otty’s skeleton argument referred to prolonged, arbitrary, unacknowledged and incommunicado detention at an unofficial detention centre, but he introduced a number of qualifications in the course of the hearing. Despite the reference to “prolonged” detention, he said it could be detention for any period of time. He laid stress on “arbitrary”, because the detention had to be of a kind incapable of justification or of falling within a lawful derogation from human rights instruments. “Unacknowledged” and “incommunicado” referred to the denial of the detention in all public statements and to the inability of the detainee to communicate to persons outside: it did not matter that the detention was known to, or that the detainee was visited by, the security services of a third state.

Article 53 of the Vienna Convention on the Law of Treaties defines a peremptory norm of general international law as “a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. The question whether there is a peremptory norm prohibiting secret detention was extensively debated before us. If such a norm exists, it has not been definitively recognised to date. Mr Otty referred to the four sources of international law set out in Article 38 of the Statute of the International Court of Justice (treaty law, custom, general principles of law recognised by civilised nations, and judicial decisions and teachings) and took us to a substantial body of material within each of those categories which in his submission shows that secret detention is impermissible in all circumstances. He acknowledged that recognition by this court of a peremptory norm prohibiting secret detention would be a judicial development of significance, but he submitted that that should not prevent the court from taking such a step.

Mr Tam QC, for the Secretary of State, emphasised the special status of jus cogens in international law, referring by way of example to the exposition at paragraphs 153-156 of the judgment of the International Criminal Tribunal for Former Yugoslavia in Prosecutor v Furundzija (unreported, 10 December 1998), as quoted in the judgment of Lord Bingham in A and Others v Secretary of State for the Home Department (No.2) [2005] UKHL 71, [2006] 2 AC 221 (“A (No.2)”) at [33], in relation to the prohibition of torture. He submitted that the materials relied on by Mr Otty were insufficient to establish that the prohibition of secret detention had acquired that status.

For reasons that will become apparent, I do not think that we need to decide the point, and therefore I do not propose to go into the detail of the rival submissions on it. I am prepared to assume for the purposes of the remainder of the argument that the prohibition of secret detention is a peremptory norm of general international law, or jus cogens.

The way the appellant’s case proceeds is in broad terms that any attendance by Security Service officers at a secret detention centre for the purpose of questioning detainees would constitute involvement in conduct amounting to a serious breach of international law, and the executive would be taking advantage of its own wrongdoing and acting in abuse of process by seeking to adduce, against the interests of the individual, evidence obtained in that way. Indeed, in addition to breaching international law, such attendance at secret facilities might involve criminal conduct contrary to the Serious Crime Act 2007 and/or conduct requiring to be criminalised pursuant to the International Convention for the Protection of All Persons from Enforced Disappearance (albeit the United Kingdom has not signed or ratified that convention); see also the discussion in R (Equality and Human Rights Commission) v Prime Minister [2011] EWHC 2401 (Admin) concerning the guidance to British personnel on the interviewing of detainees overseas, and issues arising out of that guidance. Evidence obtained by attendance at secret detention facilities should be excluded by the court in the exercise of its abuse of process jurisdiction, the animating principle of which is the need to protect the integrity of the judicial process and as part of that to prevent the executive from taking advantage of its own wrongdoing.

In support of those submissions Mr Otty placed particular weight on two authorities: A (No.2) (cited above) and R v Horseferry Road Magistrates Court, ex p. Bennett [1994] 1 AC 42 (“Bennett”). Since Bennett came first in time and was considered in A (No.2), I will take it first.

The appellant in Bennett alleged that the English police, having taken the decision not to employ the extradition process, had colluded with the South African police to have him arrested in South Africa and forcibly returned to the United Kingdom against his will. The House of Lords held that the concept of abuse of process covered the situation, so that it was open to the High Court to stay the prosecution of the appellant if satisfied that he had been brought within the jurisdiction in disregard of extradition procedures. Lord Griffiths expressed the principle as follows (at pp.61H-62A):

“In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.”

A little later (at p.62F) he said that the courts could refuse to allow the police or prosecuting authorities to take advantage of abuse of power by regarding their behaviour as an abuse of process.

In similar vein, Lord Bridge said (at p.67F-G) that respect for the rule of law demanded that the court take cognisance of the circumstance that the law enforcement agency responsible for bringing a prosecution had only been enabled to do so “by participating in violations of international law” and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court. Lord Lowry made observations to much the same effect, stating for example (at p.76F) that if British officialdom at any level had participated in or encouraged the kidnapping of a suspect in a foreign country, “it seems to represent a grave contravention of international law, the comity of nations and the rule of law generally if our courts allow themselves to be used by the executive to try an offence which the courts would not be dealing with if the rule of law prevailed”.

In A (No.2) the House of Lords held that evidence obtained by torture could not lawfully be admitted against a party to proceedings in a UK court, irrespective of where, by whom or on what authority the torture had been inflicted. Lord Bingham, in the leading judgment, drew on a number of strands in reaching that conclusion. He referred to the condemnation of torture by the common law; to the common law exclusionary rule in respect of involuntary confessions; to the abuse of process jurisdiction exemplified by Bennett and cases following it; to the European Convention on Human Rights; and to wider principles of public international law. At para [33] he said that it was common ground that the international prohibition of the use of torture enjoyed the enhanced status of jus cogens or a peremptory norm of general international law. I have referred already to his quotation, in that connection, of an extensive passage from the judgment in Prosecutor v Furundzija. At para [34] he said that the jus cogens nature of the prohibition “requires member states to do more than eschew the practice of torture”; he referred to a requirement for states “to cooperate to bring to an end through lawful means any serious breach of an obligation under a peremptory norm of general international law”; and he said that there was reason to regard it as a duty of states “to reject the fruits of torture inflicted in breach of international law”. He went on to consider Article 15 of the Torture Convention, which requires states “to ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. Those various sources can be seen to feed into Lord Bingham’s conclusion:

“52.

… The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention ….”

Later in A (No.2) Lord Hoffmann described the principle in Bennett as applying to the exclusion of evidence in the same way as to the staying of proceedings:

“87.

… English law has developed a principle, illustrated by cases like [Bennett], that the courts will not shut their eyes to the way the accused was brought before the court or evidence of his guilt was obtained. Those methods may be such that it would compromise the integrity of the judicial process, dishonour the administration of justice, if the proceedings were to be entertained or the evidence admitted. In such a case the proceedings may be stayed or the evidence rejected on the ground that there would otherwise be an abuse of the processes of the court.”

Mr Otty relied on those two cases both for their general observations about the court’s jurisdiction to prevent an abuse of process and as showing that the jurisdiction extends to the exclusion of evidence. He submitted further that if the prohibition of secret detention is jus cogens, issues of the same kind arise for the integrity of the judicial process as were discussed in A (No.2) in relation to torture. The United Kingdom must not condone secret detention but must co-operate to bring it to an end. It would be acting contrary to those duties by allowing Security Service officers to attend secret detention facilities. For the court to allow the executive to adduce, against the interests of the individual, evidence obtained by such unlawful conduct would be to encourage that conduct and to allow advantage to be taken of it. The court should exercise its jurisdiction to exclude such evidence as an abuse of process. The fact that the exclusion of evidence would be one-sided is not a valid point of objection, since the reason for it is the abuse of process by the one party. SIAC were therefore in error in relying on the point about one-sidedness as a reason for rejecting the appellant’s contention that evidence of this kind should be excluded.

If we were concerned in this case with evidence obtained as a result of secret detention, as for example where a person held in prolonged secret detention had eventually broken his silence and made a confession, I could see a degree of force in Mr Otty’s submissions. There would be some parallel then with “the fruits of torture” with which A (No.2) was concerned. Even then the argument for exclusion would not be as strong as in relation to torture: there is, for example, no equivalent of Article 15 of the Torture Convention in relation to secret detention. The contention that the same principles as for torture apply to evidence obtained by any form of inhuman or degrading treatment was expressly rejected in A (No.2) itself (though Mr Otty makes the observation that A (No.2) proceeded on the basis that evidence had been obtained by officials of a foreign state without the complicity of the British authorities). The point was left open by the Strasbourg Court in Othman (Abu Qatada) v United Kingdom (Application no. 8139/09, judgment of 17 January 2012): having held that it would be a flagrant denial of justice for evidence obtained by torture to be admitted in a criminal trial, the court said at para [267] that it “does not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture”, but it was unnecessary to decide the question.

The present case, however, is not about the fruits of secret detention. The evidence that the appellant seeks to exclude is evidence about the conditions experienced during detention and in particular about the nature of the treatment received by detainees: it might in principle include evidence of what was observed by those attending the detention facility, and evidence of what was said to them by detainees. The argument for exclusion of such evidence is in my view relatively weak, even if attendance at the detention facility did amount to a serious breach of international law (and, indeed, even if it amounted to criminal conduct). The situation is in no way comparable to that which was found in Bennett to be capable of amounting to an abuse of process. It would not threaten basic human rights, be an affront to the rule of law or compromise the integrity of the judicial process for such evidence to be given. It would not cause public confidence in the legal system to be undermined.

On the contrary, public confidence would be liable to be undermined by the one-sided exclusionary rule for which Mr Otty contends, whereby evidence concerning the treatment of detainees at secret detention facilities could be given by the detainees themselves but not by Security Service officers who spoke to or observed them there, save to the extent that the evidence of those officers was favourable to the appellant. SIAC were right to be concerned about this one-sidedness. I do not think that they were right to say that if an exclusionary rule existed it could not be one-sided and that the detainee’s own account of his interrogation would have to be excluded as well: the logic of Mr Otty’s argument, founded on the abuse of process jurisdiction, does lead to a one-sided outcome (and does so even though the breach of international law relied on would be the same whether the evidence was favourable or adverse to the appellant). But the profoundly unsatisfactory nature of that outcome reinforces my view that this is not a situation in which it can sensibly be said to be an abuse of process for such evidence to be given.

There is no general rule that evidence obtained by unlawful means is inadmissible in legal proceedings, albeit its admission is subject to controls such as the judicial discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence in the interests of fairness in a criminal trial. The very nature of the debate in A (No.2) concerning the admissibility of evidence obtained by torture highlights the exceptional nature of any exclusionary rule. I am satisfied that the exceptional step of exclusion would not be justified in the assumed circumstances of this case, that is to say even on the assumption that the evidence in question was obtained as a result of the attendance by UK Security Service officers at secret detention facilities in Ethiopia and that secret detention is prohibited by a peremptory norm of general international law or jus cogens. The international legal obligations of the State in relation to conduct in breach of a peremptory norm would not of themselves be a sufficient reason for holding it to be an abuse of the process of the court for such evidence to be given.

In my judgment, therefore, SIAC were correct to rule that they were entitled to take such evidence into account, and the challenge to that ruling fails.

Ground 2 breaks down into two issues: (a) whether SIAC erred in law in finding that there was no real risk that XX would be prosecuted if removed to Ethiopia; and, if they should have found a real risk of prosecution, (b) whether they erred in law in finding that he would not be subjected to a trial process so unfair as to amount to a flagrant breach of article 6.

SIAC’s main reasons for finding that there was no real risk of prosecution are contained in para [19] of their judgment, in the context of their assessment of the position under article 3 (I have referred already to the overlap in this case between article 3 and article 6). The full passage is set out at para [12] above. Mr Otty submitted that it contains three crtical findings: (i) the principal circumstances which might have led the Ethiopian government to see XX as a potential threat to Ethiopia no longer existed, following the withdrawal of Ethiopian troops from Somalia; (ii) if XX were perceived as an active member or supporter of Al Shabaab, he might be regarded as a threat to Ethiopian interests; and (iii) that perception would be based on a chain of reasoning so stretched as to be fanciful, namely that he was trained at a camp run by a man (Sheikh Ayro) who later became the declared leader of a group (Al Shabaab) which later fought against Ethiopian interests and which might now support another group which threatened Ethiopian interests: that might provide an excuse for detaining and prosecuting XX but would not provide a sensible reason for doing so. SIAC added at para [27] that XX could only be prosecuted successfully if there were evidence that he had associated with members of Al Shabaab and had undertaken training to advance the aims of Al Shabaab, but there was no such evidence.

Mr Otty submitted that SIAC’s conclusion on this issue was perverse. Part of the argument was advanced in private and is considered in my “in private” judgment. So far as open submissions are concerned, Mr Otty contended in particular that it was irrational to treat as “fanciful” the train of reasoning whereby XX might be perceived as an active member or supporter of Al Shabaab. The Secretary of State’s expert, Mr Debebe, agreed in cross-examination that the allegation that the training camp attended by XX in Somalia was associated with Sheikh Ayro would increase the risk of prosecution: “if XX had some kind of connection with this leader, the interest of the Ethiopian Government might be increased, so XX may face arrest and even maybe prosecution”. That was, he submitted, a concession of fundamental importance which SIAC was bound to address, yet SIAC omitted reference to it; and against the background of that concession the chain of reasoning based on the link to Sheikh Ayro could not reasonably be treated as fanciful.

An argument of that kind has to be treated with very considerable caution. First, SIAC were not required to refer in their judgment to every relevant piece of evidence, and it is well established that this court should be slow to infer that where a point has not been expressly mentioned it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, [2011] 2 All ER 65, at paras [43]-[45], where a more general reminder is also given that the court should not be astute to characterise as an error of law what in truth is no more than a disagreement with the specialist tribunal’s assessment of the facts. I can see no basis for inferring that SIAC failed to take into account the passage in Mr Debebe’s evidence relied on here by Mr Otty.

Secondly, that passage must be read in the context of Mr Debebe’s evidence as a whole. Later in his cross-examination he stressed the need for evidence that XX had the intention to commit a crime against the Ethiopian state, noting that the fact that XX had a connection with some individuals who were thought to be terrorists, and had been in places like Cumbria and Somalia, “should not lead to the conclusion that he has the intention to commit any of the offences which were listed by XX’s expert”. He adhered to the view that XX was not in a materially different position from that which obtained in 2006 (when XX had been questioned but released) and that there was no sufficient evidence justifying or leading to prosecution. Reminded of his earlier concession, he said: “if you put it in these terms that XX has really some kind of connection or association with the leaders of Al Shabaab and that XX had taken some kind of training to advance the interests of Al Shabaab, then I say it may lead to the prosecution of XX”.

In the course of re-examination he repeated that whilst XX’s association with Sheikh Ayro might lead the Ethiopian authorities to arrest and investigate him, they did not have any evidence that he had committed or attempted to commit offences against the Ethiopian Government, and therefore “it might be very difficult and very unlikely for XX to be prosecuted and convicted under Ethiopian law” in the absence of a confession from him.

I am not persuaded that, viewed in the light of his evidence as a whole, Mr Debebe’s earlier concession had the significance attributed to it by Mr Otty or that it was perverse of SIAC to conclude on the totality of the evidence before them, including the concession, that there was no real risk that XX would be perceived as an active member or supporter of Al Shabaab and that that there was no real risk of his being prosecuted on return to Ethiopia. SIAC were reasonably entitled to find that the later emergence of Sheikh Ayro as leader of Al Shabaab would not cause the Ethiopian authorities to take a materially different view of XX’s attendance in 2005 at the training camp in Somalia from that which they had taken in December 2006, when they detained and interrogated him without ill-treatment and released him without charge.

The next part of the argument under ground 2 is based on material that was not before SIAC in the case of XX but emerged in later proceedings concerning “J1”, another individual proposed to be deported to Ethiopia on national security grounds: SIAC’s relevant open judgment in J1 v Secretary of State for the Home Department (Appeal no. SC/98/2010) was handed down on 11 July 2011. Mr Otty applied to adduce open material from that case as fresh evidence in the present appeal. Rather than rule separately on the application, we allowed the issue to be canvassed in the course of the submissions on the appeal and we therefore considered the evidence de bene esse.

A March 2011 open statement on behalf of the Secretary of State in J1’s proceedings recorded Security Service assessments that, inter alia, J1 had been an important member of a network of Islamist extremists based in London and was aware and supportive of their involvement in terrorism-related activity in the UK and in East Africa; he had associated with, and may have assisted, a group of individuals who travelled to Somalia in May 2005 to engage in terrorist-related activity; he had associated with named Islamist extremists who had links to Al-Qaeda in East Africa and had trained in Somalia in October 2006; and the continued support provided by the UK-based network of which J1 was part was vital for its associates in East Africa to pursue their extremist activities. A further assessment was that J1 had travelled to Ethiopia in 2006 and had spent some of this trip associating with other Islamist extremists, and that his travel was likely to have been at least in part for extremist purposes. J1 was also assessed as a close associate of a named individual who had left the UK for Somalia in October 2009 and who was said to have engaged, whilst based in Somalia, in a variety of terrorism-related activities which were likely to have been linked to, or directly involved with, Al Shabaab.

The evidence relating to J1 also included a Note Verbale dated 6 October 2010 and addressed to the Ethiopian Ministry of Foreign Affairs, informing the Government of Ethiopia of the proposal to deport J1 on the grounds of national security and stating that he was believed to be involved in terrorism related activities “and to have links with a number of Islamist extremists, including [XX], with whom your Government is familiar.”

Mr Otty submitted that the Note Verbale thereby caused XX to be linked directly, in the minds of the Ethiopian authorities, with J1, an individual alleged to have travelled to Ethiopia for extremist purposes and to have associated with a group of Islamist extremists who posed an active threat to the Government of Ethiopia. In their open judgment concerning J1, SIAC found that it was “very highly likely” that J1 would be detained and interrogated by the Ethiopian authorities, that it was accepted that he would face a real risk of prohibited ill-treatment without the protection afforded by the assurances under the MoU, and that the Ethiopian authorities would have realised that they were being asked to give assurances in relation to an individual “who might pose a threat to them” (see paras [4]-[7] of the judgment). The further evidence linking XX with J1 is said therefore to show that Mr Debebe was proceeding on a false assumption when he stated in his report that XX did not have contact with extremists in Ethiopia; and to undermine a key aspect of SIAC’s reasoning, that XX’s former presence in Ethiopia was not relevant and there was no basis for linking him with Al Shabaab. It is submitted that the evidence takes XX clearly into the category of supporters of Al Shabaab which SIAC acknowledged would be perceived as a threat to Ethiopia, and that when this is added to the point discussed above concerning XX’s link with Sheikh Ayro, the only rational conclusion is that XX would be at real risk of prosecution in Ethiopia.

All this shows how the evidence relating to J1 is sought to be deployed by way of substantive argument in the appeal. But that evidence did not form part of the material before SIAC in the proceedings concerning XX. Indeed, it post-dated SIAC’s judgment on XX, which was handed down on 10 September 2010. I do not accept a suggestion by Mr Otty that, since J1’s notice of deportation was served not long after that judgment, on 25 September 2010, the Secretary of State must have known the position concerning J1 while the proceedings concerning XX were still before SIAC and should therefore have told SIAC and the Special Advocates what was intended. Whatever may have been intended at that point in relation to J1, it was not incumbent on the Secretary of State to inform SIAC about it before the relevant decision was taken. In any event the documents in respect of J1 on which reliance is now placed came into being at a substantially later date.

This creates an obvious difficulty for Mr Otty, since an appeal from SIAC lies only on a point of law and there is very limited scope for establishing an error of law on the part of a tribunal by reference to evidence that was not before the tribunal and was not even available at the time of the tribunal’s decision.

In an attempt to meet this difficulty, Mr Otty tried to bring the case within the principles laid down in E and R v Secretary of State for the Home Department (cited above), in which the Court of Appeal held that a mistake of fact can sometimes form the basis of an appeal on a point of law. The court summarised the position as follows:

“66.

In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case [R v Criminal Injuries Compensation Board, Ex p. A [1999] 2 AC 330]. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

The court went on to consider the application of the principles in Ladd v Marshall [1954] 1 WLR 1489 to the admission of evidence relied on as showing the relevant mistake of fact.

In my judgment, the present case is a long way from the sort of case envisaged in E and R where a mistake of fact may amount to a mistake of law. I do not accept that any “mistake as to an existing fact” has been identified at all, let alone that that there is an “established” fact, in the sense of an “uncontentious and objectively verifiable” fact, in relation to which a mistake was made. Moreover, the underlying basis of the E and R principles is unfairness, and I do not accept that there has been any unfairness in this case. SIAC made findings on the material before them as to how XX would be perceived by the Ethiopian authorities. The fresh evidence does not establish some fact in relation to which SIAC were in error, or make it unfair for SIAC to have made the findings they did. What it does is to provide additional factual material relevant to the question of how XX would be perceived by the Ethiopian authorities. That additional material provides the basis for Mr Otty’s contention that the only rational conclusion to be drawn on all the material now available is that XX would be at real risk of prosecution in Ethiopia. But that falls a very long way short of showing that SIAC erred in law in the findings they actually made.

Since the fresh evidence is not capable of showing an error of law on the part of SIAC, I would refuse the application to adduce it.

Although the fresh evidence cannot be deployed in support of XX’s appeal, it remains open to him to rely on it, as on any other development post-dating SIAC’s decision, in support of “fresh claim” representations to the Secretary of State. It is for the Secretary to State to evaluate any representations received and to decide whether to accept or reject them and, if they are rejected, whether to treat them nevertheless as a fresh claim triggering a further right of appeal (applying the test set out in paragraph 353 of the Immigration Rules). It must be very common in these SIAC cases for the evidential picture to develop over time. If SIAC themselves have a later case concerning the same country, they can take such developments into account in the later case: for example, SIAC’s open judgment in J1’s case took the judgment in XX’s case as a starting-point but then factored in the additional evidence received in respect of conditions in Ethiopia and matters specific to J1 himself. But once an appellant has had his appeal dismissed by SIAC, developments post-dating SIAC’s decision are more appropriately dealt with in his individual case by way of fresh claim representations to the Secretary of State than by seeking artificially to accommodate them within the framework of an appeal on a point of law against SIAC’s decision.

I think it better in the circumstances for me not to express any view on the strength of the argument based on the fresh evidence relating to J1. If that evidence is deployed in due course in support of fresh claim representations, it will have to be evaluated, together with any other material relied on at that time, by the Secretary of State.

A related issue was identified in the course of the closed hearings. I can deal with the point of principle in this open judgment, without confirming or denying whether there is any closed material in the case in relation to this point. Ms Anuja Dhir QC, special advocate, raised a concern about the position if relevant fresh evidence were contained in closed material, since that material could not be deployed in support of fresh claim representations: the special advocates would be unable to alert the appellant to the existence of the material or to make fresh claim representations on his behalf; nor is there any procedure for the deployment of such material in a judicial review challenge to the Secretary of State’s refusal to treat representations as a fresh claim. Whilst, as Mr Tam submitted, the Secretary of State would be under a continuing duty to satisfy herself in every case that removal would be compatible with the ECHR, and for that purpose would be under a duty to consider inter alia any relevant closed material of which she was aware, that would not be an adequate substitute for judicial evaluation of such material in a forensic process. Ms Dhir therefore sought to persuade us to extend the principles in E and R v Secretary of State for the Home Department so as to enable the deployment of fresh evidence before this court on an appeal from SIAC in circumstances where it might not otherwise be possible to deploy it at all.

I acknowledge that the concern identified by Miss Dhir is a real one. I do not accept, however, that the principles in E and R v Secretary of State for the Home Department, which may be thought already to strain the concept of an error of law, can properly be extended yet further so as to cover this situation. That would be to subvert the legislative intention that appeals be limited to points of law. There is little that this court can sensibly do in relation to fresh closed material. If, in the course of an appeal, the court’s attention is drawn to the existence of closed material that would be capable of founding a fresh claim, there can be no objection to its stating that bare fact in its open judgment, thereby alerting the appellant to the possibility of a fresh claim. Subject to that, however, it seems to me that the matter has to be left to the Secretary of State in the discharge of her obligations to act compatibly with the ECHR. In the present case, if XX chooses to make fresh claim representations, it will be necessary for the Secretary of State to take into account not only the representations themselves but also any relevant closed material that has become available since SIAC considered XX’s case.

On the subject of fresh evidence I should mention finally that Mr Tam objected to the fact that JUSTICE had included in its written intervention a body of factual material post-dating SIAC’s judgment in XX’s case. The material in question included an entire section on the alleged deterioration in conditions in Ethiopia since July 2010. For reasons already given, such material does not assist in an appeal on a point of law but might appropriately be deployed in support of fresh claim representations.

If, as I would hold for the reasons given above, SIAC were entitled to find that there was no real risk that XX would be prosecuted in Ethiopia, the remainder of the appellant’s case under article 6 falls away, since it relates to SIAC’s alternative finding that the trial process to which he would be exposed if prosecuted would not be in flagrant breach of article 6.

I think it right to indicate, however, that I do have reservations about SIAC’s conclusion on this point, even though the test of flagrant breach of article 6 is undoubtedly a very high one.

As to the test, the Strasbourg court said in Othman (Abu Qatada) v United Kingdom, at para [260]:

“It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court’s view that ‘flagrant denial of justice’ is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.”

The examples given in the preceding paragraph (para [259]) of forms of unfairness that could amount to a flagrant denial of justice were (a) conviction in absentia with no possibility subsequently to obtain a fresh determination on the merits of the charge; (b) a trial which is summary in nature and conducted with a total disregard for the rights of the defence; (c) detention without any access to any independent and impartial tribunal to have the legality of the detention reviewed; and (d) deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country.

At para [19] above I have summarised what SIAC said about the very serious shortcomings of the Ethiopian criminal justice system. Additional points not expressly mentioned by SIAC but to be found in the evidence of Mr Debebe are that a trial of XX might be seen as a political one and that criminal defendants are often given no advance notice of the evidence against them and so are given no practical opportunity to respond to it. Mr Otty submitted that the cumulative effect of those deficiencies, and in particular the risk of political interference and the difficulties in presenting a defence case, are sufficient to meet the “flagrant denial of justice” test. He drew support from Brown v Government of Rwanda [2009] EWHC 770 (Admin), in particular at paras [31], [59] and [62], and Brown v Government of Rwanda (No.2) [2009] EWHC 1473 (Admin) at para [17]. The case he advanced has considerable force to it. It seems to me that the deficiencies in the Ethiopian trial process, on the evidence before SIAC in XX’s case, come closer to meeting the “flagrant denial of justice” test than SIAC’s judgment acknowledges. It is unnecessary to decide, however, whether SIAC erred in law in concluding that there would be no breach of article 6 even if, contrary to their primary findings, XX were to face trial on return to Ethiopia.

I agree.

I also agree.