“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“whether SIAC erred in taking into account material which had not been disclosed to the appellant in support of its conclusion that the appellants did not face a real risk of torture if removed to Algeria.”
“When exercising its functions, [SIAC] shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.”
“the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3… Such scrutiny needed not be provided by a judicial authority but, if it is not, the powers and guarantees that it affords are relevant in determining whether the remedy before it is effective.”
“the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
“A – Extracts from the Charter for Peace and National Reconciliation MEASURES AIMED AT CONSOLIDATING PEACE Firstly: Extinguishment of judicial proceedings against individuals who have given themselves up to the authorities since the 13th of January, 2000, the statutory time-limit for effects of the Law on Civil Concord; Secondly: Extinguishment of proceedings against individuals putting an end to their armed activity and surrendering arms in their possession. This extinguishment of proceedings does not apply to individuals involved in collective massacres, rapes and bombings in public places; Thirdly: Extinguishment of judicial proceedings against wanted individuals, in Algeria and abroad, who have decided to give themselves up voluntarily to the relevant Algerian authorities. This extinguishment of proceedings does not apply to individuals involved in cases of collective massacres, rapes and bombing in public places; Fourthly: Extinguishment of judicial proceedings against all individuals involved in support networks for terrorism, who have decided to declare their activities to the relevant Algerian authorities; Fifthly: Extinguishment of judicial proceedings against individuals sentenced in absentia, other than those involved in collective massacres, rapes and bombings in public places; Sixthly: The pardoning of individuals already sentenced and imprisoned for supporting terrorism; Seventhly: The pardoning of individuals already sentenced and imprisoned for acts of violence, other than collective massacres, rapes and bombings in public places; Eighthly: Commutation of and remission of sentence for all other individuals on whom final sentence has been served or wanted individuals for whom the extinguishment of judicial proceedings or pardons described above do not apply.”
“354. But second, even if Y were to apply in time, the declaration required by Articles 8 and 13 would give rise to difficulties which are not yet fully resolved. It would be wholly unreasonable to expect Y to admit to offences of the gravity alleged which he denies, whether or not that would lead to extinguishment of the right to prosecution in respect of them and even more so if there were real doubt over whether the acts committed could be charged in a way which fell outside the extinguishment provisions. We accept that the consistent material from the Ministry of Justice shows that the declarant can enter “not applicable” in that section of the declaration which requires the acts committed to be declared. It is the effect of that which is at issue. A declaration in those terms may only enable the declaration to be treated as valid, ie effective as a declaration for the purposes of Article 13. Its effectiveness as a means of achieving extinguishment of the offences is less clear. 355. We recognise that declarations are not required of those who presented themselves to the authorities between 2000 and27 February 2006 , nor in respect of those who seek extinguishment of prosecution while in custody, or amnesty, commutation or remission. That does not show that the “not applicable” declaration suffices for extinguishment under Articles 4-8 of the right to prosecute for acts which have not been admitted. Voluntary presentation to the authorities before the extinguishment provisions were introduced may have provided an opportunity for the authorities to investigate and take a decision on prosecution; likewise those finally sentenced will have had a form of judicial determination of their acts and those in custody will have been arrested for an identifiable offence. The SSHD’s submissions as to the effect of a “not applicable” declaration may be right; but there is no clear written statement from the Ministry of Justice to that effect. It is all very well it being said that it is a “purely procedural rule which, in reality, has no negative bearing on [Y’s] interests...”, as did the Algerian Note of7 May 2006 . But the effect of it on the procedures for extinguishment remains unclear. The latest answers from the Ministry do not clarify this. Examples might have shed light but none were then provided. 356. The operation of the declaration is a matter upon which the Government is better placed than Y to obtain the necessary and conclusive information. This is one of a number of areas concerning the operation of the Ordonnance in which the SSHD’s evidence was unsatisfactory. The evidence was not given by an expert in the foreign law or procedure. In the light of the newness of the provisions, that may be understandable but it serves to emphasise the scope for uncertainty about how a new process will operate in practice, as underlined by the two re-arrests of two individuals apparently released in error under the Ordonnance. The evidence was given often at second or third hand and the understandings were not all confirmed in writing; even when written confirmation was sought, the responses fell short of a clear confirmation or answer to the question. We accept that part of the SSHD’s difficulties arises from the fact that the Algerian side in the negotiations does not see why the UK Government seeks this information when it has said that it will apply the procedure to Y and he will benefit from the extinguishment provisions. We recognize the consistency of the assurances that the Ordonnance would apply to Y, and that the declaration of offences signed “not applicable” would suffice. But it has not been conclusively demonstrated. There would still be a risk that Article 8 would not be the route to the beneficial application of the Ordonnance to Y, even if the declaration were made in time.”
“It is difficult on the face of the document [ie the Ordonnance] to understand why the distinction is being drawn requiring a declaration in some but not others, save that there appears to be a general underlying rationale that once somebody is within the criminal justice system, then the declaration is not required. That does beg an interesting question about the application of Article 9 to Mr Taleb if he were to return to Algeria without having taken advantage of the Article 8 provision. On that hypothesis, he goes back, he does not take advantage of the Charter, he says he wishes to appeal or be retried in respect of his in absentia convictions. It would appear on the face of it that Article 9 would then apply to him, because on that basis he would then be held in custody not having been sentenced for having committed or having acted as an accomplice, etc and the offences for which he was being tried fall within Article 2. It may well be that the draftsman simply did not contemplate the possibility that someone who could take advantage under Article 8 of clearing the decks so far as his in absentia conviction is concerned would return or make himself available to the authorities and effectively force them into prosecuting him.”
“Again, there is no evidence at all for that proposition from the Algerian authorities. It is a little difficult to understand how it could be the position, as they have repeatedly stated and indeed repeat in the document that was served arising out of 6th/7th June meeting, that it could be a condition of the application of the Charter where someone is convicted in absentia that they do complete a declaration and yet, when an individual returns and appeals their conviction having not completed a declaration, and therefore not benefiting from the Charter, they are automatically given the benefit of the Charter without a declaration.”
“MR JUSTICE OUSELEY: But whatever Article 9 applies to, it does not envisage a declaration. MR EMMERSON: I agree with that, but it would be a surprising consequence if a declaration were required from a convicted person who was convicted in absentia before they returned but not required after they returned. The fact that a consequence is surprising does not make it impossible any more than the general thrust of the Secretary of State’s argument, which is a surprising one about Article 10, is impossible. It is just that there is no evidence to support that conclusion”
“364. We conclude that while Y might not benefit from the provisions of Article 8 because he could apply too late to do so, or because the “not applicable” declaration might not cover the charges which he would face upon appealing against convictions, it is clear that he would benefit from Article 9 in relation to those charges. The route to benefit would be either of the provisions mentioned under Article 15. If the charges are confined to Article 87, there would be no power in the prosecutor or Court to exclude Y e.g. on the basis that he ought to be charged with graver offences, or that he could have been. …. 377. Accordingly, we conclude that Y can return to Algeria, can enter opposition to his in absentia convictions and will then be able to benefit from the provisions of Article 9 of the Ordonnance, even though he will be unable to benefit from Article 8. The nature of the declarations is thus only relevant if there were to be an extension of the deadline, which is mere speculation. We think there is no real likelihood that he would not benefit in that way.”
“Anthony requested assistance in interpreting Algerian Law. He explained that we had submitted to the judge that ‘Y’ would benefit from Arts 8 and 13 of the Ordonnance and that Amara had previously said that if ‘Y’ completed a Declaration under the Charter but was not willing to detail terrorist acts committed the declaration would still be valid. Anthony asked what the term ‘valid’ meant; whether in the sense of Art 13 that he had made a declaration; or in the sense of Art 8 that the Declaration would be effective in extinguishing the right to prosecute. He also explained that the Judge had held that there was an unresolved ambiguity about the meaning of ‘valid’; but that this did not matter because ‘Y’ could rely on Art 9 because Y had not been finally convicted by a court (he was tried in absentia) and he would be detained on return and therefore would be in custody. Anthony asked whether Counsel for the Government had been correct in arguing that Articles 8 and 13 would operate to extinguish the right to prosecute ‘Y’; and whether the judge had been right in holding that he would benefit from Article 9.”
“On Article 9, Amara said he noted the interpretation that had been given to this by the SIAC judge; it was an interpretation that could certainly be supported from the words of the Ordonnance; he hoped that the UK Court of Appeal would take the same view; but this was not what those drafting the Ordonnance had had in mind when they drafted the words concerned. Amara said that each of the articles from 4 onwards dealt with a particular circumstance. In respect of article 9 they had had in mind people who were already in detention at the time of the Ordonnance came into effect. These people could not reasonably be expected to make a voluntary act of adherence to the Charter, so they were automatically included in its provisions, and then some thousands of them had indeed been released under it. For those tried in absentia article 8 was the relevant article. Again, he could not authoritatively state what view an Algerian judge would take if ‘Y’ sought to benefit from Article 9; and the intentions of those drafting the text were less important than the words themselves; but in his opinion an Algerian judge would be unlikely to take the same view as SIAC on this point.”
“[66] In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.”
“398. It might be arguable that even if Y were to be retried and to enjoy no benefit from the extinguishment provisions of the Ordonnance, and were instead forced to rely on the commutation and remission provisions instead, there would be no risk of a breach of Article 3. After all, the offences are serious and could properly be retried without that trial, or a life sentence and detention, in principle being persecutory or involving of themselves a breach ofArticle 3 ECHR . 399. We do not consider such a possibility in the light of what we have been told by Mr Oakden and what we have accepted are the true implications of the Charter and more particularly of the Ordonnance for Algerian politics and the response to Y’s return. Mr Oakden has made much of the fact, and properly so, that the Algerians have been puzzled, genuinely as he sees it, as to why the UK seeks assurances to cover contingently events which they reassure the UK will not arise, because Y will benefit from the Ordonnance provisions on extinguishment of prosecution. Were Y to be retried on those charges, it would mean that what the UK Government had been told by Algeria at all levels was worthless or had been completely misunderstood. The Ordonnance would not assist except for commutation and remission. The prospect that Y would be detained by the DRS would become a real one on this hypothesis; there would be greater incentives to torture him, the period of detention would be far longer than has been envisaged by us or the UK in its evidence and submissions and the ability of interested parties to maintain his profile would diminish. The context in which those issues would be considered is wholly different from that which has been painted and which we have essentially accepted. It is impossible to take pieces of the picture and to try to apply them in that situation.”
“Reliance on Article 9 was however the basis of SIAC’s decision, though it did not express a view on whether, absent the applicability of Article 9, Y would still face a real risk of the forbidden treatment; on SIAC’s analysis that issue did not arise for decision.”
“The purpose of Art 1 is to define who is a refugee. Art 1F then establishes categories of persons who are specifically excluded from that definition. The purpose ofArt 33 of the Convention , by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community. This functional distinction is reflected in the Act, which adopts Art 1F as part of s 2, the definitional section, and provides for the Minister’s power to deport an admitted refugee under s 53, which generally incorporates Art 33. Thus, the general purpose of Art 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served byArt 33 of the Convention . Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. Although all of the acts described in Art 1F could presumably fall within the grounds for refoulement described in Art 33, the two are distinct. This reasoning must also be applied when considering whether the acts falling under Art 1F(c) must be acts performed outside the country of refuge, as argued by the appellant. In my opinion, the refoulement provisions cannot be invoked to read into Art 1F(c) any such limitation. Where geographical limitations were required, the Convention specifically provided for them, as evidenced by the terms or Art 1F(b). The relevant criterion here is the time at which the refugee status is obtained.
“86. … In Pushpanathan, as we have seen, the Supreme Court of Canada distinguished between Articles 32 and 33 and Article 1F(b). But it does not in our view follow that the mere fact that a person satisfies the requirements of Article 1 before he commits the act identified as causing exclusion under Article 1F(c) enables him to say that he continues to be a refugee. Article 1F(c) does not contain the words ‘Outside the country of refuge prior to his admission to that country as a refugee’, which are found in Article 1F(b). There is no reason at all to suppose that that difference is accidental. Acts which merit the condemnation of the whole international community must lead to exclusion from the benefits of the Refugee Convention when ever they occur. 87…. Article 1F (c) is not limited to acts committed before obtaining refuge. If he had been recognised as a refugee earlier, it would make no difference now. 88… Where, therefore, there are serious reasons for considering that an act contrary to the purposes and principles of the United Nations has been committed, it does not matter when or where it was committed, or whether it is categorised by municipal law as a crime. It leads to exclusion from the Refugee Convention. … 89… This interpretation of the relevant clauses of the Refugee Convention is entirely coherent and sensible. It identifies what acts will lead to exclusion despite their being ‘political’. A person whose acts (at any time) are contrary to the purposes and principles of the United Nations disqualifies himself from protection under the United Nations’ Refugee Convention.”
“Reliance was placed on the existence of Article 33(2) as the sole post recognition removal power. Article 33(2) permits someone to be removed notwithstanding that he would be persecuted on return, in circumstances which may overlap with those in Article 1F (c). But they are not expressed in the same way and may not cover the same facts in any particular case. Nor is the possibility of removing someone who is a refugee on that basis the same as the obligatory exclusion of someone from being a refugee, formally recognised or not. True it is that almost all of the Convention is about the position of those who are refugees but that does not mean that their position cannot change or that the exclusion provisions cannot apply to exclude someone from being a refugee before or after formal state recognition as such. The focus remains on acts in the past rather than on future risk.”
“i) the terms of the assurances must be such that, if they are fulfilled, the person returning will not be subject to treatment contrary to article 3; ii) the assurances must be given in good faith; iii) there must be a sound objective basis for believing that the assurances will be fulfilled; and iv) fulfilment of the assurances must be capable of being verified.”
“[SIAC] erred in its approach to the assurances provided by the Algerian authorities. Among other things, the Commission failed to provide sufficient reasons and held that the assurances were sufficient to ensure safety despite uncontested evidence that the Algerian authorities are unable to control significant elements of its security forces.”
“The Appellants should start by making clear the limited nature of their submissions. They acknowledge that [SIAC] is the fact finding body in relation to primary facts. For example, findings that any appellant lacked credibility can only be challenged on classic Wednesbury grounds. However, different considerations apply when facts found are then applied to determine whether removal amounts to a violation of the [ECHR].”
“While it may be convenient for some purposes to refer to questions of “pure” law as contrasted with “mixed” questions of fact and law, the fact is that the appeal tribunal has no jurisdiction [undersection 136(1) of the Employment Protection (Consolidation) Act 1978 , which limited the jurisdiction of the Employment Appeal Tribunal to questions of law] to consider any question of mixed fact and law until it has purified or distilled the mixture and extracted a question of pure law.”
“The object is to ensure that public authorities should act to avert or rectify any violation of a Convention right, with the result that such rights would be effectively protected at home, thus (it was hoped) obviating or reducing the need for recourse to Strasbourg.”
“The task of [SIAC] is to determine whether or not there are substantial grounds for believing that there is a real risk that this applicant will be subjected to treatment contrary to Article 3 if he is returned to Algeria now.”
“Mr Layden is a realist. He acknowledges that torture still exists, but is getting less. He accepts that the civil authorities do not control the DRS (they report direct to the President as Minister of Defence). He has never seen any report of any prosecution of a DRS official for torture or ill-treatment. He bluntly acknowledged that he was not saying that there would not be a risk of ill-treatment if the United Kingdom had not made the special arrangements that it had. However his unshakable view was that the assurances given by the Algerian authorities in the case of BB eliminated any real risk that he would be subjected to torture or ill-treatment.”
“Should [BB] be arrested in order that his status may be assessed, he will enjoy the following rights, assurances and guarantees as provided by the Constitution and the national laws currently in force concerning human rights…his human dignity will be respected under all circumstances.”
“I agree with [the applicants] that it is of no use if China’s failure to comply with the assurance against torture does not become public. For torture to become known, however, there would have to be some compliance and verification mechanisms in place. More specifically, there would have to be an effective monitoring system by independent organizations like the International Committee of the Red Cross.”
“There may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur. The reason for this is that the ultimate question is whether the applicant (in an asylum case) has a real substantial basis for his fear of future persecution. The decision-maker must not foreclose reasonable speculation about chances of the future hypothetical event occurring.”
“In the present public law context, where this country’s compliance with an international convention is in issue, the decision maker is …. not constrained by the rules of evidence that have been adopted in civil litigation and is bound to take into account all material considerations when making its assessment about the future. This approach does not entail the decision-maker …. purporting to find ‘proved’ facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did in fact occur…. .”
“We do not regard ourselves as bound by Karanakaran to take into account matters which give rise to a mere possibility of risk even if we cannot say that, without doubt, they did not occur.”
“To establish that there are substantial grounds for believing that a deportee would face a real risk of treatment infringing Article 3 by reason of prison conditions in the receiving state, the risk can be established either by evidence specific to the appellant’s own circumstances or by reference to evidence applicable to a class of which he is a member. In the latter case, he will only succeed if he can point to a consistent pattern of gross and systematic violation of rights under Article 3.”
“The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.”
“The court considers that, like the risk of treatment proscribed by Article 2 and/or Article 3, the risk of a flagrant denial of justice in the country of destination must primarily be assessed by reference to the facts which the contracting state knew or should have known when it extradited the persons concerned.”
“while the Strasbourg jurisprudence does not preclude reliance on articles other than Article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case… Where reliance is placed on Article 6, it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state.”
“It can be regarded as settled law that where there is a real risk of a flagrant denial of justice in the country to which an individual is to be deported, Article 6 may be engaged.”
“The Convention does not govern the actions of states not parties to it, nor does it purport to be a means of requiring the contracting state to impose convention standards on other states. Article 1 cannot be read as justifying a general principle to the effect that notwithstanding its extradition obligations, a contacting state may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention.”