A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department [2004] EWCA Civ 1123

"The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

"(2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligation under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."

"There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 15(1) of the Convention, exists in the United Kingdom."

"In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5(1)(f) as interpreted by the Court in the Chahal [ (1996) 23 EHRR 413 ] case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required. Derogation under Article 15 of the Convention The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security [Act 2001] may be inconsistent with the obligations under Article 5(1) of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that "action is being taken with a view to deportation" within the meaning of Article 5(1)(f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom's obligations under Article 5(1), the Government has decided to avail itself of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice."

"The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under Article 3. If there is a danger of torture, the government must find some other way of dealing with a threat to national security."

"(5) On a review the Commission – (a) must cancel the certificate if it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), and (b) otherwise, may not make any order (save as to leave to appeal). (6) A certificate cancelled by order of the Commission under subsection (5) ceases to have effect at the end of the day on which the order is made."

"Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination."

"The Commission may receive evidence that would not be admissible in a court of law."

"It is now commonplace for Parliament to enable powers which may interfere with the liberty of the person to be exercised without warrant where the person who exercises these powers has reasonable ground for suspecting that the person against whom they are to be exercised has committed or is committing an offence. The protection of the subject lies in the nature of the test which has to be applied in order to determine whether the requirement that there be reasonable grounds for the suspicion is satisfied. My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised. …The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances."

"22. Here the liberty of the person and the opportunity of his family to remain in this country is at stake, and when specific acts which have already occurred are relied on, fairness requires that they should be proved to the civil standard of proof. But that is not the whole exercise. The Secretary of State, in deciding whether it is conducive to the public good that a person should be deported, is entitled to have regard to all the information in his possession about the actual and potential activities and the connections of the person concerned. He is entitled to have regard to precautionary and preventative principles rather than to wait until directly harmful activities have taken place, the individual in the meantime remaining in this country. In doing so he is not merely finding facts but forming an executive judgment or assessment. There must be material on which proportionately and reasonably he can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and his conclusion is justified, to a "high civil degree of probability"

"In any case, I agree with the Court of Appeal that the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant's deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interests at stake and the serious consequences of deportation for the deportee."

"What weight is attached to any particular piece of evidence is a matter for consideration in any particular case in the light of all the evidence, viewed as a whole and not as isolated pieces. … Whilst the absence of arrest on criminal charges or interview can be an indicator as to the existence of reasonable grounds, it must be remembered both what material is admissible for these purposes and inadmissible or not usable for criminal trial purposes, and the nature of the matters in respect of which reasonable grounds for suspicion or belief has to be shown."

"The judiciary had to be willing to put an appropriate degree of trust in the ability of Ministers who are publicly accountable to satisfy themselves as to the integrity and professionalism of the Security Service."

"It is plain that the Commission has to be satisfied as to the existence of reasonable grounds for suspicion and belief for the section 25 appeals by taking account of all matters even if not proved on the balance of probability; the Rehman decision is of no assistance to the Appellants in that context."

"It is our task under Section 25 to examine the evidence relied on by the Secretary of State and to test whether it affords us reasonable grounds for the relevant belief and suspicion; it is not a demanding standard for the Secretary of State to meet. … The Commission must be careful to ensure that such deference or recognition of expertise as is appropriate does not mean that it forswears its own obligation to be satisfied that there are indeed reasonable grounds for the necessary belief and suspicion."

"15. SIAC's task is not to review or 'second-guess' the decision of the Secretary of State but to come to its own judgment in respect of the issue identified in s 25 of the 2001 Act. The task of this court on an appeal is limited to questions of law. However, the power of this court to determine questions of law enables the court (among other grounds) to set aside a decision of SIAC if that decision is unsupported by any evidence so that it is perverse. 16. SIAC is required to come to its decision as to whether or not reasonable grounds exist for the Secretary of State's belief or suspicion. Use of the word 'reasonable' means that SIAC has to come to an objective judgment. The objective judgment has however to be reached against all the circumstances in which the judgment is made. There has to be taken into account the danger to the public which can result from a person who should be detained not being detained. There are also to be taken into account the consequences to the person who has been detained. To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual's rights. Although, therefore, the test is an objective one, it is also one which involves a value judgment as to what is properly to be considered reasonable in those circumstances. "

"What is critical was the value judgment which SIAC had to make as to whether there was reasonable ground for the belief or suspicion required. As to this question SIAC was the body qualified by experience to make a judgment. SIAC came to a judgment adverse to the Secretary of State. It has not been shown that this decision was one to which SIAC was not entitled to come because of the evidence, or that it was perverse, or that there was any failure to take into account any relevant consideration. It was therefore not defective in law."

"It is a possibility that the Commission could conclude that there were reasonable grounds for the suspicion or belief without itself holding the requisite suspicion or belief. But its task under Section 25 is to consider the reasonableness of the grounds rather than to cancel a certificate if, notwithstanding the reasonableness of the grounds, it were unable subjectively to entertain the suspicion or hold the belief to which the statute refers. If such a situation were to arise, the Commission will make that clear."

"it is a question of evaluation and judgment" and "the concept of a standard of proof is not particularly helpful"

"The proceedings before the Commission involve departures from some of the requirements of Article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in Article 6, is given due weight, I am satisfied there is no contravention of that article."

"The terms of derogation and the nature of the public emergency to which it relates are important because of contentions on behalf of the Appellants that their activities, however they might otherwise be categorised for the purposes of the section 21, fell outside the scope of the derogation and that emergency. They also were concerned at the number of links relied on in the chain to establish a connection to Al Qa'eda."

"Al Qa'eda and its associates are loosely knit, lack formal organisational structures and have links with other active terrorist organisations"

"referred regularly to the link to Al Qa'eda being created not just by national groups but by a loosely co-ordinated series of overlapping networks"

"We accept the general schematic description of Al Qa'eda and its associated networks; it was borne out by all the evidence which we heard and was not the subject of serious debate. Terrorist groups have historically worked in small cells, often disconnected from each other with deliberate cut-outs in the chain of command, with direct communication at operational level to the leadership hierarchy discouraged. We deal later with the specific groups referred to because their relationship, if any, to Al Qa'eda was the subject of dispute. But we accept [Mr Williams' QC, then leading counsel for the Respondent] submission as to what connections and with whom had to be shown for purposes of the derogation and in very summary form his submission as to why, if such connections are shown, it shows the link to the public emergency and why the threat is increased. Of course, Mr Williams is using the word "link" in its specific statutory meaning. Mr Williams submitted that it would be an unwarranted restriction on the scope of the emergency to require the group for which an Appellant was a member or to which he was "linked" in the statutory sense to be a supporter of the core aims of Al Qa'eda as expressed in the February 1998 fatwa. That was one core aim or statement of intent and means but not the only objective. Its objectives were a combination of the global and national, the latter being part of and assisting the former and vice versa. It was not necessary to show that an individual supported that fatwa in order to show, to the requisite standard of proof, that he was both an international terrorist and connected to the public emergency. "

"But, in our judgment, if those groups also support Al Qa'eda for a part of their agenda and an individual supports them nonetheless, it is a legitimate inference that he is supporting and assisting Al Qa'eda through his support for that group, whatever his own views may be on the indiscriminate killing of civilians, in the absence of evidence showing that the group has compartmentalised operations and is not assisted in other activities by the support given for e.g. self defence purposes. Indeed the Act requires only that there be support or assistance for an international terrorist group. The derogation requires that there be a link between that group and Al Qa'eda. It is sufficient that there is that indirect connection to Al Qa'eda. It is not necessary that the assistance be in connection with the Al Qa'eda facet. A group can be strengthened through support in one area and thus better able to carry out activities in another in a number of ways: publicity for fund raising and recruitment, the diversion of resources supplied for one purpose to another, the dual use of resources, the ability to retain resources which would otherwise have to be spent for another purpose. It is also unwise to suppose that there is a readily discernible and closely observed distinction between one activity and another within a terrorist group with many agendas. They all feed off each other. The same person who does fundraising or false documentation for one purpose is able to do it for other purposes; accommodation for one can be used for another; someone radicalised through jihadic experiences and indoctrination in Chechnya may see the violent global jihad as a next step. There is room for debate as to what has been called unwitting assistance which we deal with later."

"We do recognise that it is possible to construct connections, which by a number of links in a chain, can reach Al Qa'eda but without having any sensible connection to any threat or any real substance. But it is unrealistic, given the lack of formal structure to Al Qa'eda, to its various associated groups or networks, or to the links between them, to define the connection in a way which suggests that no more than one remove or link is permissible in order for the link to the public emergency, derived as it is from the activities of Al Qa'eda and its associates, to be made. Any more analysis depends on the facts of the cases."

"The overlapping groups or cells: 302. We accept the broad assessment by the Respondent that there is a network, largely of North African extremists, in this country which makes up a number of groups or cells with overlapping members or supporters. They usually have origins in groups which had or may still have a national agenda, but whether that originating group does or does not have a national agenda, whether or not is has direct Al Qa'eda links, whether or not the factions are at war in the country of origin, such as the GIA and GSPC in Algeria, those individuals now work together here. They co-operate in order to pursue at least in part an anti-West terrorist agenda. Those less formal groups are connected back to Al Qa'eda, either through the group from which they came which is part of what can be described as the Al Qa'eda network, or from other extremist individuals connected to Al Qa'eda who can be described as part of Al Qa'eda itself or associated with it. They are at least influenced from outside the United Kingdom. These informal, ad-hoc, overlapping networks, cells or groups constitute "groups" for the purpose of the 2001 Act. 303. It does not matter whether the individuals support all the means of war or terror urged by Al Qa'eda, including the deliberate mass killing of civilians by suicide actions. They can still support or assist a group connected with Al Qa'eda and in some way increase its capability for launching terrorist operations of whatever sort which threaten the United Kingdom."

"For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

"Each State Party shall 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."

"Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment."

"It [the Court] recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair."

"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale."

"(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."

"By the judiciary, though it ought not to be extended, it must by no means be whittled down. It bears, it is true, all the marks of its origin at a time when the savage code of the eighteenth century was in full force. At that time almost every serious crime was punishable by death or transportation. The law enforcement officers formed no disciplined police force and were not subject to effective control by the central government, watch committees or an inspectorate. There was no legal aid. There was no system of appeal. To crown it all the accused was unable to give evidence on his own behalf and was therefore largely at the mercy of any evidence, either perjured or oppressively obtained, that might be brought against him. The judiciary were therefore compelled to devise artificial rules designed to protect him against dangers now avoided by other and more rational means. Nevertheless, the rule has survived into the twentieth century, not only unmodified but developed, and only Parliament can modify it now from the form in which it was given classical expression by Lord Sumner."

"Having regard to all the implications involved in accepting the full impact of the Hammond decision [1941] 3 All ER 318 which can, I think, be summarised by saying that regardless of how much physical or mental torture or abuse has been inflicted on an accused to coerce him into telling what is true, the confession is admitted because it is in fact true regardless of how it was obtained, I cannot believe that the Hammond decision does reflect the final judicial reasoning of the English courts… I do not see how under the guise of 'credibility' the court can transmute what is initially an inquiry as to the 'admissibility' of the confession into an inquisition of an accused. That would be repugnant to our accepted standards and principles of justice; it would invite and encourage brutality in the handling of persons suspected of having committed offences"

"… the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused."

"The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R v Horseferry Road Magistrates' Court, ex p. Bennett … The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that trial should take place. An infinite variety of cases could arise."

"My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen."

"These statutory and common law developments have been reinforced by the Human Rights Act 1998. It is unlawful for the court, as a public authority, to act in a way which is incompatible with a Convention right. Entrapment, and the use of evidence obtained by entrapment ("as a result of police incitement"), may deprive a defendant of the right to a fair trial embodied in Article 6: see the decision of the European Court of Human Rights in Teixeira de Castro v Portugal [1998] 28 EHRR 101. 16 . Thus, although entrapment is not a substantive defence, English law has now developed remedies in respect of entrapment: the court may stay the relevant criminal proceedings, and the court may exclude evidence pursuant to section 78. In these respects R v Sang [1980] AC 402 has been overtaken. Of these two remedies the grant of a stay, rather than the exclusion of evidence at the trial, should normally be regarded as the appropriate response in a case of entrapment. Exclusion of all the prosecution evidence would, of course, dispose of any anomaly in this regards. But a direction to this effect would really be a stay of the proceedings under another name. Quite apart from these considerations, as a matter of principle stay of the proceedings, or of the relevant charges, is the more appropriate form of remedy. A prosecution founded on entrapment would be an abuse of the court's process. The court will not permit the prosecutorial arm of the state to behave in this way."

"Of course events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of Article 6(1) lies not in the use of torture (which is, separately, a breach of Article 3) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of Article 3 but no breach of Article 6(1)."

"Among the issues for the Home Secretary to determine may be whether the trial to be faced by the wanted person will be a fair trial. This may involve the voluntariness of extra-judicial confessions relied on as against him."

"Questions of admissibility within the requesting state's criminal process are ordinarily for the courts of the requesting state to decide, especially where admissibility turns upon disputed issues of fact. It is only where it can be demonstrated that the approach taken by the requesting state's courts to admissibility will itself be such as to create a real risk of a fundamentally unfair trial that the principle of mutual respect stressed in McQuire and other decisions may have to yield. In a case such as the present this requires the Home Secretary to be satisfied of at least two things: that Bensaid's incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine, any argument in the claimant's defence based upon this contention. If the Home Secretary concludes that these elements are established, he will be effectively bound to refuse extradition."

"As to the adequacy of the total inquiry, there remain at least two questions to which, on the face of the materials eventually before him, the Home Secretary has yet to give a properly reasoned response. One is whether there was any investigation at all of the original complaint of ill-treatment of Bensaid; the other is whether the French courts, given the record now available of their later decisions in relation to Bensaid, will now entertain any request by the claimant to exclude Bensaid's confessions."

"So as hereby it appeareth, that where the law requireth that a prisoner should be kept in salva & arcta custodia yet that that must be without pain or torment to the prisoner… … Sir John Fortescue chiefe justice of England wrote his book in commendation of the lawes of England, and therein preferreth the same for the government of this countrey before the civill law; and particularly that all tortures and torments of parties accused were directly against the common lawes of England, and shewed the inconvenience thereof by fearfull example, to whom I refer you, being worthy your reading. So as there is no law to warrant tortures in this and, nor can they be justified by any prescription being so lately brought in."

"146 . The existence of this corpus of general and treaty rules proscribing torture shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals. No legal loopholes have been left."

"…By contrast, in the case of torture, the mere fact of keeping in force or passing legislation contrary to the international prohibition of torture generates international State responsibility. The value of freedom from torture is so great that it becomes imperative to preclude any national legislative act authorising or condoning torture or at any rate capable of bringing about this effect."

"6.3 The Committee considers in this regard that the generality of the provisions of article 15 derives from the absolute nature of the prohibition of torture and imply, consequently, an obligation for each State party to ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as a result of torture. The Committee finds that the statements at issue constitute part of the evidence of the procedure for the extradition of the complainant, and for which the State party is competent. In this regard, in the light of the allegations that the statements at issue, which constituted, at least in part, the basis for the additional extradition request were obtained as a result of torture, the State party had the obligation to ascertain the veracity of such allegations."

"Evidence obtained by means of a violation of this Statute or internationally recognised human rights shall not be admissible if: (a) the violation casts substantial doubt on the reliability of the evidence; or (b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings"

"the jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state because the offenders are "common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution:"

"It is important for the discouragement of violations under Article 7 that the law must prohibit the use or admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment. "

"Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings."

"13. … It is true, as the Attorney General insisted, that rules of international law not incorporated into national law confer no rights on individuals directly enforceable in national courts. But although international and national law differ in their content and their fields of application they should be seen as complementary and not as alien or antagonistic systems. Even before the Human Rights Act 1998 the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law. I would further accept, as Mr Emmerson strongly contended, with reference to a number of sources, that the efficacy of the Convention depends on the loyal observance by member states of the obligations they have undertaken and on the readiness of all exercising authority (whether legislative, executive or judicial) within member states to seek to act consistently with the Convention so far as they are free to do so. 14 . Mr Emmerson however accepted, as submission (7) in my summary makes clear, that a Convention duty, even if found to exist, cannot override an express and applicable provision of domestic statutory law…. "

"27. In other words, the Convention is an international treaty and the ECHR is an international court with jurisdiction under international law to interpret and apply it. But the question of whether the appellants' convictions were unsafe is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them: J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 1 AC 418 (the International Tin Council case). Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 , 283: "

"The appeal is against certification, which connotes a continuing state of affairs. The powers available on appeal are only to cancel a certificate; that power only makes sense in the context of a certificate which remains in force. The statutory language is reinforced by the first ground upon which an appeal can be allowed, which goes to present merits. The appeal would at best be arguable on the rather limited paragraph (b) ground."

"Section 25(4) provides that where a certificate is cancelled it shall be treated as never having been issued. Section 25(2)(a) clearly looks to the situation at the time of the appeal. It does not say, as it could have done, that there are or were at the time it was issued no reasonable grounds, etc. It therefore clearly in our view presupposes that the certification is still in being at the time of the hearing. … But Parliament could have made it clear that an appeal could be made against the issue of the certificate rather than, as section 25(1) provides, against the certification."

"Freedom from executive detention is arguably the most fundamental and probably the oldest, most hardly won and the most universally recognised of human rights…"

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. … 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

"The threat from international terrorism is a continuing one. In its resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, required all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks. There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom."

"302… [T]here is a network, largely of North African extremists, in this country which makes up a number of groups or cells with overlapping members or supporters. They usually have origins in groups which had or may still have a national agenda, but whether that originating group does or does not have a national agenda, whether or not it has direct Al Qa'eda links, whether or not the factions are at war in the country of origin, such as the GIA and GSPC in Algeria, those individuals now work together here. They co-operate in order to pursue at least in part an anti-West terrorist agenda. Those less formal groups are connected back to Al Qa'eda, either through the group from which they came which is part of what can be described as the Al Qa'eda network, or through other extremist individuals connected to Al Qa'eda who can be described as part of Al Qa'eda itself or associated with it. They are at least influenced from outside the United Kingdom… … 309… There are reasonable grounds, at least, for considering that there is a continuing direct terrorist threat to the United Kingdom from a group or groups or network of largely North African Islamic extremists, linked in various ways to Al Qa'eda…"

"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."

"The proposed derogation by the United Kingdom from article 5(1) of the Convention, set out in the Schedule to this Order, is hereby designated for the purposes of the 1998 Act [sc. the HRA] in anticipation of the making by the United Kingdom of the proposed derogation."

"As a result of the public emergency, provision is made in [ATCSA], inter alia , for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic law powers."

"It is well established that Article 5(1)(f) permits the detention of a person with a view to deportation only in circumstances where 'action is being taken with a view to deportation' ( Chahal v United Kingdom (1996) 23 EHRR 413 at paragraph 112)."

"The Government has considered whether the exercise of the extended power to detain contained in [ATCSA] may be inconsistent with the obligations under Article 5(1) of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that 'action is being taken with a view to deportation' within the meaning of Article 5(1)(f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom's obligations under Article 5(1), the Government has decided to avail itself of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice."

"(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably- (a) believes that the person's presence in the United Kingdom is a risk to national security, and (b) suspects that the person is a terrorist. (2) In subsection (1)(b) 'terrorist' means a person who- (a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism, (b) is a member of or belongs to an international terrorist group, or (c) has links with an international terrorist group. (3) A group is an international terrorist group for the purposes of subsection (2)(b) and (c) if- (a) it is subject to the control or influence of persons outside the United Kingdom, and (b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism. (4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it. (5) In this Part- 'terrorism' has the meaning given by section 1 of the Terrorism Act 2000, and 'suspected international terrorist' means a person certified under subsection (1). (6) Where the Secretary of State issues a certificate under subsection (1) he shall as soon as is reasonably practicable- (a) take reasonable steps to notify the person certified, and (b) send a copy of the certificate to the Special Immigration Appeals Commission. (7) The Secretary of State may revoke a certificate issued under subsection (1). (8) A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26. (9) An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under - (a) section 25 or 26, or (b) section 2 of the Special Immigration Appeals Commission Act 1997."

"(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by- (a) a point of law which wholly or partly relates to an international agreement, or (b) a practical consideration. (2) The provisions mentioned in subsection (1) are- (a) paragraph 16 of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal), and (b) paragraph 2 of Schedule 3 to that Act (detention pending deportation)."

"(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21. (2) On an appeal the Commission must cancel the certificate if- (a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or (b) it considers that for some other reason the certificate should not have been issued. (3) If the Commission determines not to cancel a certificate it must dismiss the appeal. (4) Where a certificate is cancelled under subsection (2) it shall be treated as never having been issued. (5) An appeal against certification may be commenced only- (a) within the period of three months beginning with the date on which the certificate is issued, or (b) with the leave of the Commission, after the end of that period but before the commencement of the first review under section 26."

"(1) This section applies to an asylum appeal before [SIAC] where the Secretary of State issues a certificate that- (a) the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention, because Article 1F or 33(2) applies to him (whether or not he would be entitled to protection if that Article did not apply), and (b) the removal of the appellant from the United Kingdom would be conducive to the public good. … (3) Where this section applies the Commission must begin its substantive deliberations on the asylum appeal by considering the statements made in the Secretary of State's certificate. (4) If the Commission agrees with those statements it must dismiss such part of the asylum appeal as amounts to a claim for asylum before considering any other aspect of the case. (5) If the Commission does not agree with those statements it must quash the decision or action against which the asylum appeal is brought. … (7) The Secretary of State may revoke a certificate issued under subsection (1). (8) No court may entertain proceedings for questioning- (a) a decision or action of the Secretary of State in connection with certification under subsection (1), … (9) Subsection (8) shall not prevent an appeal under section 7 of the Special Immigration Appeals Commission Act 1997 (appeal on point of law). …"

"1(1) In this Act 'terrorism' means the use or threat of action where—(a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it—(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section—(a) 'action' includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) 'the government' means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom."

"Where [SIAC] has made a final determination of an appeal, any party to an appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination."

"A pending appeal to the Commission is to be treated as abandoned if the appellant leaves the United Kingdom."

"The Commission may receive evidence that would not be admissible in a court of law."

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principle of the United Nations."

"1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinions. "2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country...."

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

"For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

"1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture."

"1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature."

"Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction."

"Each State Party shall 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."

"A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention…"

"The Committee shall forward its views to the State Party concerned and to the individual."

"289. … [I]t is clear that the GSPC is an international terrorist group. We consider the evidence, open and closed, supports the conclusion that it is active in pursuit of both a national agenda, including fighting the Algerian regime and the Zouabri-led GIA, and a wider anti-Western agenda. We reject the suggestion that its attention is confined to Algeria or that it can be regarded as not part of the Al Qa'eda-linked threat because it does not target civilians. The latter proposition resulted from a series of questions designed to highlight the difference between the GIA and the GSPC. But there is no evidence at all to support the curious implicit proposition that GSPC terrorism excluded any civilian targets, or that attacks on non-civilian targets in the West are excluded from the scope of the emergency. The distinction itself is over simple: how do police, civil servants in the Ministry of Defence or Security Services' buildings fare? There was evidence, particularly in closed, about GSPC-linked civilian attacks outside Algeria, in France and Niger. 290 The GSPC was also linked to Al Qa'eda through training, and funding and in other ways, from all the material which we had. Here the UN list is supportive of the evidence given to us and can add to the weight of evidence as to those links. It is controlled or influenced by people outside the United Kingdom, as for that matter is the GIA."

"It poses no threat to western interests outside Algeria. Those threats, disturbing though they are, are not the basis of, nor truly part of, the Al Qa'eda linked emergency. As an organisation it is difficult to see that it is currently part of the threat to the United Kingdom underlying the public emergency. It focuses on Algeria currently… The GIA is significant in these appeals either as the precursor to the GSPC, or as the original terrorist group supported by those who are said now to be significantly connected to other looser networks, and in that different way linked to Al Qa'eda."

"There is ample evidence to support the conclusion that this group falls within the Act, has links to Al Qa'eda and is a very important part of the emergency. It is not a group with an exclusive membership; its members or supporters or some of them may form part of other networks or groups, as well. It is the paradigm group, loosely co-ordinated but overlapping with other groups or cells of North African, principally, Algerian, extremists. It may overlap with groups centred around Abu Qatada or around Beghal. It too is controlled or influenced by people outside the United Kingdom."

"… [T]he closed material confirms our view that there is indeed reasonable suspicion that the Appellant is an international terrorist within the meaning of section 21 and reasonable belief that his presence in the United Kingdom is a risk to national security. We have no doubt that he has been involved in the production of false documentation, has facilitated young Muslims to travel to Afghanistan to train for jihad and has actively assisted terrorists who have links with Al Qa'eda. We are satisfied too that he has actively assisted the GSPC. We have no hesitation in dismissing his appeal."

"You are an active supporter of various international terrorist groups, including those with links to Usama Bin Laden's terrorist network. Your activities on their behalf include fund raising."

"You are an active supporter of the Tunisian Fighting Group, a terrorist organisation with close links to Al Qaida. You have provided direct assistance to a number of active terrorists."

"We have… been careful only to rely on material which cannot in our judgment have an innocent explanation."

"Mr Emmerson did, however, raise a new point of substance in this appeal. He had in earlier cases submitted that if information obtained had been or may have been obtained by means of torture, the Commission should afford it no or very little weight. Before us he went further and submitted that information obtained by torture or by breaches of Article 3 of the European Convention on Human Rights was inadmissible."

"We are entirely satisfied that the Secretary of State is reasonable in his suspicion that Ajouaou supports or assists the GIA, the GSPC, and the looser group based around Abu Doha, and in his belief that at any time Ajouaou is in the United Kingdom his presence here is a risk to national security."

"You have provided active support to the [GIA], which is designated a proscribed organisation under Part 2 of the Terrorism Act 2000. Your activities on behalf of international terrorists include the procurement of terrorism-related materials and equipment and the provision of false documentation."

"The question therefore must be whether his activities since March 2000, when the prosecution collapsed, seen in the light of what was known against him could establish the necessary suspicion and belief to justify certification."

"You are an active supporter of [the GSPC], which is designated a proscribed organisation under Part 2 of the Terrorism Act 2000 and has links to Osama Bin Laden's terrorist network. Your activities on behalf of the group include fundraising and distribution of propaganda."

"You are an active supporter of [EIJ] which is designated a proscribed organisation under Part 2 of the Terrorism Act 2000. Earlier this year, EIJ merged with Al Qa'eda. You were sentenced in abscentia [sic] to fifteen years imprisonment by an Egyptian military court for your role in trying to recruit serving Egyptian Army officers for the EIJ and in planning operations on behalf of the EIJ, both in Egypt and abroad."

"228. C's appeal involved consideration of the Egyptian Islamic Jihad (EIJ)… The EIJ was described by [the Secretary of State] as a terrorist group, aiming to overthrow the Government of Egypt and proscribed under the Terrorism Act 2000. It had mounted a number of high profile attacks up to the mid-1990s and had merged in some form or other with Al Qa'eda in 2001. Indeed, from the late 1990s its leadership had been closely associated with Osama Bin Laden. For example, in February 1998 Al Zawahiri, its then leader, was the second signatory to the Bin Laden fatwa published in the name of "

"We regard D as a practised and accomplished liar. We do not believe his excuses, his claims to ignorance, his attempts to distance himself from other terrorist suspects, or his assertions that he has nothing to do with the GIA or other terrorist organisations, networks or activities."

"[S]ome of the relationships, in particular that with Beghal, had a social content. But that was not all. Taken as a whole, the evidence we have seen is sufficient to support the Secretary of State's case that D's extensive contacts with those who were involved at various levels in terrorist planning and activity did not arise primarily or solely for social reasons: he had contact with these individuals because he was himself supporting international terrorism in various ways. As we note in the generic part of this determination, his association with the GIA would be formally sufficient to justify the certificate, but would not be 'within the derogation' . His support of the looser network of North African terrorists is, however, sufficient for both purposes. His appeal against the certificate is dismissed."

"298… In these cases it has been clear from even the earliest material that the group or groups referred to in the letter [sc. explaining the decision to certify] do not constitute the complete expression of the Respondent's case… We do not think that Mr Blake and Mr Gill have a sound point of appeal to us as a matter of principle, even if the Respondent does change the basis or the emphasis of the case upon which he maintains that the certificate should be upheld. After all, it is universally agreed in relation to those detained that the Commission has to judge matters on the evidence before it as at the date of its decision. Indeed it is only realistic for them to deal with the case as it is in fact mounted by the Respondent at the hearing because, as Mr Blake recognised, the Secretary of State could re-certify on the changed basis… 299. The real issues are whether there has been a change which Appellant D has not had a proper chance to address in open or closed sessions and whether the changed basis or emphasis is sound on its merits. It is plain that there has been a change to some extent revealed in the Respondent's closed closing submissions. He continues to place reliance on the GIA, but, perhaps in recognition of the open evidential problems as to the current activities of the GIA itself and the absence of current organisational links to Al Qa'eda, has sought to show the links to an international terrorist group which is related to the public emergency, by elevating the associates of Beghal into a group which qualifies under the Act and the emergency. There is no doubt that D's association with Beghal formed a significant part of the case against him in open evidence. Mr Blake does not complain that he has been unable to deal with any closed material relevant to this point; his complaint is about the fact that there has been an additional emphasis on what hitherto had not really identified as a group as such. Likewise, Mr Gill and Appellant D himself have been able to deal with the association asserted between him and Beghal, and any other members of what the Respondent characterises as the group, both as to the nature and the significance of any associations with D or between Beghal and those others. He has been able to deal with the notion of a loosely co-ordinated network of mainly North African radical Islamists with anti-western terrorist agenda. Mr Gill refers to cross-examination and evidence which he was unable to provide; no particular aspect was identified. We do not regard this as a realistic point."

"105…. In order for the necessary link to the public emergency to be made, it was… necessary for the Respondent to show that there was a common aim, the aims of Al Qa'eda, which the Appellants pursued. The fact that there might be some evidence of some association with Al Qa'eda of which an Appellant might have been aware, was insufficient to show the connection to the public emergency; that required the pursuit of the common purpose. That could only be shown by evidence of material assistance and support for the core Al Qa'eda aims. Association with someone who was associated with someone who was connected with Al Qa'eda was not enough. There had to be support in terms of the threat to the United Kingdom; so if there was support for Al Qa'eda in conflicts in Chechnya or for other national purposes e.g. the change of regime in Algeria to an Islamic one, that could not provide the necessary link to the threat to the United Kingdom or the suspicion of one. The core aims of Al Qa'eda could be seen in the 1998 fatwa, which went beyond the encouragement to terrorism which was seen in Bin Laden's 1996 Declaration of Jihad against the US. It was in the 1998 fatwa 'Jihad Against Jews and Crusaders', addressed to all Muslims, that he ordered the killing of Americans and their allies, civilians and military, in any country in which that could be done. It was support for this global jihad, with indiscriminate killings as its aim, which had to be shown through membership of or support for a group which subscribed to the aims and to the means of that fatwa."

"Lord Goldsmith [the AG] gave the Commission on behalf of the government an undertaking that Part 4 would only be used for the emergency which was the subject of the derogation."

"I agree with Lord Woolf CJ that the Secretary of State may not lawfully issue a certificate under section 21 unless he is empowered to do so under the terms of the derogation. This refers in terms to the threat to international peace and security identified by the terrorist attacks on 11 September. In other words it identifies the threat posed by Al Qa'eda and its associated networks (and no one else)…"

"I agree that, on the language of section 21(1) of the 2001 Act, the power to certify does go beyond what can be regarded as strictly required by the exigencies of the situation. But, as Lord Woolf CJ has pointed out…, that is a point of no substance. It is plain that the power to certify can only be exercised in relation to the emergency which gave rise to the Derogation Order. That the Secretary of State recognises that limitation was confirmed by the Attorney General in the course of the hearing."

"Although the definition of a terrorist in s.21 of the 2001 Act is in general terms it is common ground that the Secretary of State's powers under the 2001 Act are limited by the terms of [the Derogation Order]… Accordingly, those powers cannot be exercised (except in accordance with the derogation) in respect of someone whom he does not reasonably suspect or believe to be a risk to national security because of his connection to the public emergency threatening the life of the nation – namely the threat posed by Al-Qaida and its associated networks. Thus it is not enough that the person detained may have had connections with a terrorist organisation. It must be a terrorist organisation which has links with Al-Qaida."

"96. The true emphasis, for the limit to the exercise of Part 4 powers, is on the emergency underlying the derogation… There is a risk that that phrase ["

'… individuals in the United Kingdom who are members of Al Qa'eda or its associated networks or are linked to members of such organisations or groups [and] are by reason of that fact part of the threat to the United Kingdom which comprises the current public emergency. That threat is compounded where they provide support for Al Qa'eda or any of the networks associated with it because they are thereby enhancing the capability of those networks.' 98. He identified groups such as the GIA and the GSPC, the EIJ, the Arab Mujahaddin in Chechnya, the Abu Doha group or network, a group or network centred around Beghal, and a wider North African network comprised of " individuals who are also previous or present members of other networks linked to Al Qa'eda (including the GSPC and the Abu Doha Group) and is itself part of the Al Qa'eda network or a network linked to Al Qa'eda ". A UN Monitoring Report of August 2002… described Al Qa'eda as 'a series of loosely connected operational and support cells.'

"108… [W]e are of the view that the formulation by Mr MacDonald of the link to Al Qa'eda and those associated with it, as requiring support for a core aim of global jihad, expressed in the indiscriminate killing of civilians, is too narrow an approach. It is not necessary for adherence to that core aim of Al Qa'eda, expressed in the 1998 fatwa, to be the point of overlap between the GSPC, GIA, Al Qa'eda or the Appellants. Similarly, Mr Gill's submission that there has to be support for the core aims of global jihad against the West by terrorist means is too narrow. The threat to the life of the nation is not so confined although that is an obvious part of it. The threat is not confined to activities which may take place within the United Kingdom for the nation's life includes its national activities abroad whether diplomatic, cultural or in civil aviation and tourism. Nor would it necessarily be right to suppose, in the light of Rehman , that the nation's life cannot be threatened by attacks upon other countries who are allies, friends or vital sources of material for the economy such as oil. This threat could come directly from the disruption created by such attacks, or indirectly from the strength which the terrorist may gain from such an attack in a world in which the interdependence of countries facing a global terrorist threat is obvious. The threat to the nation, which underlies the derogation, is posed by any of the various activities of Al Qa'eda and those who are associated with it, whether or not they agree with all aspects of his global agenda or with the indiscriminate killing of civilians as a means or end. 109. It is necessary to understand the overlap between the various groups and individuals, and how they connect to Al Qa'eda, to realise why the derogation is expressed as it is. Take the Arab Mujahaddin fighting in Chechnya: those who go there or support those who fight there with that group, connected as it is to Al Qa'eda, are assisting fighters with a radical Islamic agenda to train, and to gain experience and prestige which is capable of being deployed later for global jihad purposes or in the recruitment of others, radicalised by their experiences, to be part of a United Kingdom based terrorist support network able to carry out attacks in or against the United Kingdom. The derogation is properly seen as related to Al Qa'eda and its associates. The "international terrorist group" contemplated by section 21 is Al Qa'eda or a group associated with it, provided it is recognised that the very nature of the groups associated with Al Qa'eda encompasses informal, even ad hoc, groups which can as easily or better be described as overlapping, loosely co-ordinated groupings or networks. Their purposes may overlap in part but not in whole, and they may not agree with all the means which another would use; but that does not prevent them being part of the threat to the life of the nation as a matter of principle or law. It is that connection to Al Qa'eda which provides the threat rather than a desire for a particular type of atrocity, because it is Al Qa'eda and its associates which provide the threat to the nation by whatever means they consider further their anti-western agenda and through whomsoever they operate directly or indirectly."

"67. The question of whether a risk to national security exists is one on which the Commission should show deference to the Secretary of State. Due weight, not unquestioning adherence, must be given to the views and assessment of the Secretary of State who bears the direct responsibility for the safety of the country and is answerable to Parliament for his actions. As Lord Steyn said, at paragraph 28, 'the executive is the best judge of the need for international co-operation to combat terrorism … ' . Lord Hoffmann made the point at paragraph 50 that the question of whether something is in the interests of national security is a matter of judgment and policy, entrusted to the executive and not to the courts. It is artificial to separate such issues from foreign policy, which is an issue for Ministers answerable to Parliament and not for the courts. At paragraph 54, he pointed to the need for the Commission to evaluate the material relied on by the Secretary of State, but considered that its scope to differ from the Secretary of State's views was limited by the advantage which he had over the Commission through the advice which he received from people with specialist day-to-day involvement in security matters, given the very considerable margin allowed to his appraisal of national security matters especially as they involved the assessment of risk. The cost of failure, as he put it, can be high; this required the judiciary to respect the conclusions of the Secretary of State that, in that case, support for foreign terrorists acting in a foreign country constituted a threat to national security. Such decisions required a legitimacy which could only be conferred by entrusting them to those who were answerable for them to Parliament."

"21. Mr Kadri's second main point is that the Court of Appeal were in error when rejecting the Commission's ruling that the Secretary of State had to satisfy them, 'to a high civil balance of probabilities', that the deportation of this appellant, a lawful resident of the United Kingdom, was made out on public good grounds because he had engaged in conduct that endangered the national security of the United Kingdom and, unless deported, was likely to continue to do so… 22. Here the liberty of the person and the practice of his family to remain in this country is at stake and when specific acts which have already occurred are relied on, fairness requires that they should be proved to the civil standard of proof. But that is not the whole exercise. The Secretary of State, in deciding whether it is conducive to the public good that a person should be deported, is entitled to have regard to all the information in his possession about the actual and potential activities and the connections of the person concerned. He is entitled to have regard to precautionary and preventative principles rather than to wait until directly harmful activities have taken place, the individual in the meantime remaining in this country. In doing so he is not merely finding facts but forming an executive judgment or assessment. There must be material on which proportionately and reasonably he can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and his conclusion is justified, to a 'high civil degree of probability'. Establishing a degree of probability does not seem relevant to the reaching of a conclusion on whether there should be a deportation for the public good. 23. Contrary to Mr Kadri's argument this approach is not confusing proof of facts with the exercise of discretion—specific acts must be proved, and an assessment made of the whole picture and then the discretion exercised as to whether there should be a decision to deport and a deportation order made."

"54. … It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive. The precise boundaries were analysed by Lord Scarman, by reference to Chandler v Director of Public Prosecutions [1964] AC 763 in his speech in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 , 406. His analysis shows that the Commission [viz. SIAC] serves at least three important functions which were shown to be necessary by the decision in Chahal . First, the factual basis for the executive's opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the Commission to say that there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commission's ability to differ from the Home Secretary's evaluation may be limited, as I shall explain, by considerations inherent in an appellate process but not by the principle of the separation of powers. The effect of the latter principle is only, subject to the next point, to prevent the Commission from saying that although the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does not accept that this was contrary to the interests of national security. Secondly, the Commission may reject the Home Secretary's opinion on the ground that it was 'one which no reasonable minister advising the Crown could in the circumstances reasonably have held'… 56. In any case, I agree with the Court of Appeal that the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant's deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee."

"17. SIAC is required to come to its decision as to whether or not reasonable grounds exist for the Secretary of State's belief or suspicion. Use of the word 'reasonable' means that SIAC has to come to an objective judgment. The objective judgment has, however to be reached against all the circumstances in which the judgment is made. There has to be taken into account the danger to the public which can result from a person who should be detained not being detained. There are also to be taken into account the consequences to the person who has been detained. To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual's rights. Although the test is an objective one, it is also one which involves a value judgment as to what is properly to be considered reasonable in those circumstances ..."

"… [T]here is no sufficient material which persuades us that we can conclude either that torture or other treatment contrary to Article 3 of the ECHR was used or even that it may have been used if (which we doubt) that is the test to be adopted."

"72. … He [Mr Emmerson] referred to many observations made about treatment by the Americans at, for example, Guantanamo Bay and allegations about ill-treatment of particular individuals such as Moazzim Begg. Thus Abu Zubaida, said to be an important terrorist with close links to Osama Bin Laden, had suffered a bullet wound when captured and it was alleged that he was interrogated without any treatment being given for the wound. It might apply to the partially retracted confession of Djamel Beghal in the United Arab Emirates."

"80. We do, however, accept that if there is material which shows that torture or other breaches of Article 3 may have been used to obtain the information relied on, those advising the Respondent and we must consider that material since, at the very least, it will bear on the proper weight to be given to the information. If torture is alleged, that must be looked into, but the material will not fall within the embargo set out in Article 15 [sc. of CAT] unless torture is established. And the assertion by an individual that he or anybody else was tortured may not of itself suffice to prove that he was: he may be seeking to exclude evidence against him which would be damning."

"The Commission may receive evidence that would not be admissible in a court of law."

"1. My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen."

"12. … Most recently in R v Shannon [2001] 1 WLR 51, 68, para 39 Potter LJ, as I read his judgment, accepted that evidence may properly be excluded when the behaviour of the police or prosecuting authority has been such as to justify a stay on grounds of abuse of process. 13. Next, the common law also has developed since the decision in R v Sang… In … Ex p Bennett… your Lordships' House held that the court has jurisdiction to stay proceedings and order the release of the accused when the court becomes aware there has been a serious abuse of power by the executive. The court can refuse to allow the police or prosecuting authorities to take advantage of such an abuse of power by regarding it as an abuse of the court's process. Lord Griffiths, at p 62, echoed the words of Lord Devlin that the courts 'cannot contemplate for a moment the transference to the executive of the responsibility for seeing that the process of law is not abused': see Connelly v Director of Public Prosecutions [1964] AC 1254, 1354. The judiciary should 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': [1994] 1 AC 42 , 62. … 19. As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly. Police conduct which brings about, to use the catchphrase, state-created crime is unacceptable and improper. To prosecute in such circumstances would be an affront to the public conscience, to borrow the language of Lord Steyn in R v Latif [1996] 1 WLR 104 , 112. In a very broad sense of the word, such a prosecution would not be fair."

"40. … [In Ex p Bennett ] the House of Lords decided that a criminal court had power to inquire into allegations that the accused had been kidnapped abroad by authorities acting in collusion with the UK police and, if it found them proved, had a discretionary jurisdiction to stay the proceedings. Lord Griffiths said that the jurisdiction was necessary to enable the courts to refuse to countenance behaviour which threatened basic human rights or the rule of law. The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths described the jurisdiction more broadly and, I respectfully think, more accurately, as a jurisdiction to prevent abuse of executive power."

"39. This decision opens with a description of the difficult reality in which Israel finds herself security wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. This having been said, there are those who argue that Israel's security problems are too numerous, thereby requiring the authorisation to use physical means. If it will nonetheless be decided that it is appropriate for Israel, in light of its security difficulties to sanction physical means in interrogations (and the scope of these means which deviate from the ordinary investigation rules), this is an issue that must be decided by the legislative branch which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The pointed debate must occur there. It is there that the required legislation may be passed, provided, of course, that a law infringing upon a suspect's liberty 'befitting the values of the state of Israel', is enacted for a proper purpose, and to an extent no greater than is required (see art 8 of the Basic Law: Human Dignity and Liberty)."

"But it is possible to say that in a case such as the present, the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."

"As a general rule, it is for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce. The Court must, however, determine… whether the proceedings considered as a whole, including the way in which prosecution and defence evidence was taken, were fair as required by Article 6(1)."

"The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52."

"It is only where it can be demonstrated that the approach taken by the requesting state's courts to admissibility will itself be such as to create a real risk of a fundamentally unfair trial that the principle of mutual respect… may have to yield. In a case such as the present this requires the Home Secretary to be satisfied of at least two things: that Bensaid's incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine, any argument in the claimant's defence based upon this contention. If the Home Secretary concludes that these elements are established, he will effectively be bound to refuse extradition."

"… The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention's special character as a human rights treaty, and it must also take the relevant rules of international law into account. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity."

"In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a 'living tree capable of growth and expansion within its natural limits' ( Edwards v Attorney General for Canada [1930] AC 124 , 136 per Lord Sankey LC), but those limits will often call for very careful consideration."

"a person certified under subsection (1)"

"In this situation individuals who appeal to SIAC are undoubtedly under a grave disadvantage. So far as it is possible this disadvantage should be avoided, or, if it cannot be avoided, minimised. However, the unfairness involved can be necessary because of the interests of national security."

"1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably— (a) believes that the person's presence in the United Kingdom is a risk to national security, and (b) suspects that the person is a terrorist. (2) In subsection (1)(b) terrorist" means a person who- (a) is or has been concerned in the commission, preparation of instigation of acts of international terrorism; (b) is a member of or belongs to an international terrorist group; or (c) has links with an international terrorist group. (3) A group is an international terrorist group for the purposes of subsection (2)(b) and (c) if- (a) it is subject to the control or influence of persons outside the United Kingdom, and (b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of international terrorism. (4) For the purposes of subsection 2(c) a person has links with an international terrorist organisation group only if he supports or assists it."

"A suspected international terrorist may be detained under a provision specified in subsection (2) despite that fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely)."

"(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21. (2) On an appeal the Commission must cancel the certificate if— (a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or (b) it considers that for some other reason the certificate should not have been issued."

"(1) Subject to these Rules, the evidence of witnesses may be given either- (a) orally, before the Commission; (b) in writing … (2) The Commission may also receive evidence in documentary or any other form. (3) The Commission may receive evidence that would not be admissible in a court of law"

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

"(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of the court …; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence …; (d) the detention of a minor …; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases …; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. (2) … (3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. …."

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …"

"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation … from Article … 3 … shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures it has taken and the reasons therefor."

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation, which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section 'public authority' includes … a court or tribunal …."

"The proposed derogation by the United Kingdom from Article 5.1 of the Convention, set out in the Schedule to this Order, is hereby designated for the purposes of the 1998 Act in anticipation of the making by the United Kingdom of the proposed derogation."

"There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned with the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom."

"for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic powers"

"It is well established that Article 5(1)(f) permits the detention of a person with a view to deportation only in circumstances where 'action is being taken with a view to deportation' [and] that detention will cease to be permissible under Article 5(1)(f) if deportation proceedings are not prosecuted with due diligence."

"If no alternative destination is immediately available, then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required."

"[T]here may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that 'action is being taken with a view to deportation' within the meaning of Article 5(1)(f) as interpreted by the [European Court of Human Rights]. To the extent, therefore, that the exercise of the intended power may be inconsistent with the United Kingdom's obligations under Article 5(1), the government has decided to avail itself of a right of derogation conferred by Article 15(1) of the Convention …."

"Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

"(1) Each state party shall take effective legislative, administrative, judicial or other measure to prevent acts of torture in any territory under its jurisdiction. (2) No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

"No state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture."

"Each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation …."

"Each state party shall 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."

"The terms of the derogation. This refers in terms to the threat to international peace and security identified by the terrorist attacks on 11 September. In other words it identifies a threat posed by Al-Qa'eda and its associated networks (and no-one else)"

"The proceedings before SIAC involve departures from some of the requirements of Article 6. However, having regard to the issue to be inquired into, the proceedings are as fair as could reasonably be achieved."

"It is not enough that the person detained may have connections with a terrorist organisation. It must be a terrorist organisation which has links with Al-Qa'eda."

"This is not a case in which SIAC over-ruled the decision of the Secretary of State. SIAC had to come to its own decision on the material which … was tested in a way which it could not be tested before the Secretary of State."

"[T]he whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends on an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant's deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment."

"A group for these purposes may be informal, ad hoc, formed for temporary expediency; the effect of the [2001] Act draconian though it is, should not be approach as if it were only intended to apply to those terrorist groups whose affairs are conducted with some formality and constitutionalism. We do not consider that a group can only exist if it is shown to have a formal structure capable of membership. A group in this context is no more than an association of some sort between individuals to pursue one or more aims; the lone terrorist is excluded, 'group' is a word of very wide meaning. It covers the concept of networks."

"The ideology which Osama bin Laden has developed and which has united the individuals and groups in a way which does not undermine the individuals, but works with them to further their common objectives against a common enemy is set out in the Declaration of Jihad by Osama bin Laden against the US of 23 rd August 1996."

"It may not always be clear in any given case whether someone is a member of a group, or whether he supports or assists it. … [I]t would be unwise to lay down any hard and fast distinctions for the purposes of the [2001] Act between membership and support and assistance."

"It is not for the [Secretary of State] … to contact speculative possibilities for the appellant. … If there are obvious third countries to be investigated, we would expect the [Secretary of State] to make some inquiries. But they may be limited where an appellant has already left that third country, fearing that it would return him to his country of nationality or imprison him. In reality an appellant would be expected to identify the country to which he thought he might be able to go, if he does not wish to return to his country of nationality directly or indirectly via a third country and has indicated a fear of such a result."

"a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies" (at 30F). He then went on to identify various motives, which, he pointed out, would not necessarily all apply to each type of immunity which he had identified. Those motives were: "

"My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens to make sure this does not happen."

"[T]he court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it, and have only been made possible by acts which affect the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused. … It affects the proper administration of justice according to the rule of law and with respect to international law."

"Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed …. [P]roceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. … General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present, the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."

"The courts have on occasions disclaimed any general discretion in civil cases to exclude evidence on grounds of unfairness. There is no discretion to exclude evidence on the ground that it was unlawfully obtained. Nor is there any authority for the exclusion of evidence that its prejudicial effect outweighs its probative value."

"A decision to stop the trial in those circumstances is not based on the court's desire (or any perceived need) to punish the party concerned; rather it is a proper and necessary response where a party has shown that his object is not to have a fair trial which it is the court's function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise."

"The nature of our nation is free, stout, haulte, prodigall of life and bloode: but contumely, beatings, servitude and servile torment and punishment it will not abide."

"The requirements that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and substitute its own view for his."

"Even before the Human Rights Act 1998 the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law."

"Of course, there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation."

"[I]t is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them."

"As a general rule, it is for the national courts, and in particular, the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce. The Court must, however, determine … whether the proceedings, considered as a whole, including the way in which prosecution and defence evidence was taken, were fair as required by Article 6(1)."

"The jurisdiction of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities. … The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual …."

"[T]he general requirements of fairness contained in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences, without distinction, from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings."

"The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement."

"The two police officers' actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed. That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial."

"Of course events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But a breach of Article 6(1) lies not in the use of torture (which is, separately, a breach of Article 3) but in the reception of the evidence by the court for the purpose of determining the charge."

"Any statement which is established to have been made as a result of torture … may not be invoked as evidence against the person concerned or against any person in any proceedings."

"The Convention, including Article 6, cannot be interpreted in a vacuum. The court must be mindful of the Convention's special character as a human rights treaty, and it must also take the relevant rules of international law into account …. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of state immunity."

"The existence of [a] corpus of general and treaty rules proscribing torture [which] shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the inter-state level and at the level of individuals. No legal loopholes have been left."

"It is true that no express provision exists in the [ECHR] such as can be found in Article 12 of the [CAT Convention] which imposes a duty to proceed to a 'prompt and impartial' investigation whenever there is a reasonable ground to believe that such an act of torture has been committed …. However, such a requirement is implicit in the notion of 'an effective remedy' under Article 13 …."

"any interpretation of the rights and freedoms guaranteed [by ECHR] has to be consistent with 'the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society [quoting from an earlier judgment]."

"The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of [ECHR] Article 3."

"demonstrate … an international tendency in favour the protection of the privacy of juvenile defendants, and … in particular … the UN Convention is binding in international terms on the United Kingdom in common with all other member states of the Council of Europe."

"Whilst the existence of such a trend is one factor to be taken into account when assessing whether the treatment of the applicant can be regarded as acceptable, under other articles of the Convention, it cannot be determinative of the question whether the trial in public amounted to ill-treatment attaining the minimum level of severity necessary to bring it within the scope of Article 3."

"The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under [ECHR] Article 3. If there is a danger of torture, the government must find some other way of dealing with a threat to national security."

"Among the issues for the Home Secretary to determine may be whether the trial to be faced by the wanted person will be a fair trial. This may involve the voluntariness of extra-judicial confessions relied on as evidence against him."

"[Counsel for the claimant] contends that the central point remains unanswered: how did Bensaid come to have injuries …? If there is no intelligent explanation, [counsel] submits that the Home Secretary would be justified in inferring - in fact might be driven to infer - that Bensaid had been beaten up, and at a time so closely prior to the admissions which form a crucial part of the case against both himself and the claimant as to taint them irredeemably with oppression. If so, and if the evidence is not going to be excluded at the claimant's trial, extradition - as [counsel for the Home Secretary] accepts - would be impermissible."

"Questions of admissibility within the requesting state's criminal process are ordinarily for the courts of the requesting state to decide, especially where admissibility turns upon disputed issues of fact. It is only where it can be demonstrated that the approach taken by the requesting state's courts to admissibility will itself be such as to create a real risk of a fundamentally unfair trial that the principle of mutual respect … may have to yield. In a case such as the present, this requires the Home Secretary to be satisfied of at least two things: that Bensaid's incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine any argument in the claimant's defence based on this contention."

"any derogation by the United Kingdom from an Article … which is designated for the purposes of this Act in an order made by the Secretary of State."

"According to the existing state of the law, neither the government nor the heads of security services possess the authority to establish directives and bestow authorisation regarding the use of liberty infringing physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general directives which can be inferred from the very concept of an interrogation …. An investigator who insists on employing these methods, or does so routinely, is exceeding his authority. …"

"the difficult reality in which Israel finds herself security-wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one had tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. This having been said, there are those who argue that Israel's security problems are too numerous, thereby requiring the authorisation to use physical means. If it will nonetheless be decided that it is appropriate for Israel, in light of its security difficulties to sanction physical means in interrogation … this is an issue that must be decided by the legislative branch which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed."

"Where a litigant asserts the documents are immune from production or disclosure on public interest grounds he is not (f the claim is well founded) claiming a right, but observing a duty. Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation."

"No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to or would serious damage the integrity of the proceedings."

"The burden of proof of voluntariness or absence of oppressive conduct in obtaining a statement is on the Prosecution. Since these are essential elements of proof fundamental to the admissibility of a statement, the Trial Chamber is of the opinion that the nature of the issue demands for admissibility the most exacting standard consistent with the allegation. Thus, the Prosecution claiming voluntariness on the part of the Accused/Suspect … is required to prove it convincingly and beyond reasonable doubt."