Thursday, 8 March 2012

Supreme Court of UK - Nuclear weapon tests; European Arrest Warrants; Deporation to Algeria

1.  Decision to come:

On 14th March, the Supreme Court will hand down judgment in Ministry of Defence v AB and others.  This case arises out of British nuclear testing in Australia and Christmas Island in the 1950s.  There are 1011 claimants in total but the actual application before the court relates to ten "lead cases" which were selected to determine whether the claims could proceed to trial or whether they are statute-barred due to lapse of time under the Limitation Act.   Law and Lawyers looked at this in July 2011 - "UK nuclear testing in the 1950s - the legacy" - a post which was kindly reproduced on the UK Human Rights blog - "Nuclear test veterans appeal to be heard by Supreme Court."

Update - 14th March - The Supreme Court, by a majority of 4 to 3, dismissed the claimant's appeal.  Judgment and Press summary.  A summary of the judgment may be seen at UK Supreme Court blog.

2. Case just argued:

R (HH) v Deputy Prosecutor of the Italian Republic - Parents of young children are wanted on a European Arrest Warrant issued by Italy.  Italy seeks to obtain their extradition so that they can serve lengthy prison sentences imposed, in their absence, for drug trafficking.  The parents have argued that
extradition will be a disproportionate interference with rights to family life (Article 8) of themselves and their children.  The Extradition Act 2003 s.21 requires the courts to consider whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.  Furthermore, one of the parents is arguing that extradition would be oppressive given her mental health - section 25.    The Supreme Court will have to taken into account its previous decisions in Norris v Government of USA (No 2) and ZH (Tanzania).

3. Case decided:

Various applicants (Algeria) v Secretary of State for the Home Department [2012] UKSC 8.

The Home Secretary wishes to deport to Algeria a number of Algerian nationals who are suspected terrorists.  Torture has been systematically practised in Algeria.  However, the British government now has "assurance" from Algeria that the suspect's rights not to be tortured or subjected to ill-treatment will be respected.

The Special Immigrations Appeal Commission (SIAC) has statutory "closed material procedure" so that the government can adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot be safely communicated to the other party.

In this case, one of the appellants wished to adduce evidence from a witness (W) who has inside knowledge of the situation in Algeria.  W was prepared to give evidence that, despite the assurances, the appellants would be subject to torture if returned.  However, W would only give evidence provided both the evidence and identity would remain absolutely and irrevocably confidential to SIAC and the parties to the appeals.  W is concerned that the Home Secretary might refer the evidence to Algeria, if only to obtain their view as to its accuracy and this would place W and W's family in peril.

The Home Secretary objected to this.  She would be unable to participate effectively in the conduct of the appeals and to test W's evidence.  Also, she might be in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security but would be bound by SIAC's order and unable to alert the foreign State at risk.

Could SIAC make an "ex parte" order for an absolute and irreversible guarantee of total confidentiality in respect of W's identity and evidence before this information was disclosed to the Home Secretary.

The Supreme Court unanimously allowed the appeals and ruled that such orders can be made but the power to do so should be used most sparingly.  The need was to maximise SIAC's chances of arriving at the correct decision on this issue of the appellant's safety should they be returned to Algeria.

The court was at some pains to to set out some "ground rules" relating to such orders.  The following is taken from the court's Press Release - the numbers in [ ] brackets indicating the paragraphs in the court's judgment:

"The power to make such orders should however be used most sparingly [19]. Before making one of the
proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (“A”) of (a) the
proposed evidence from A’s proposed witness (“W”), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about W’s proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34].

Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]."

Interestingly, the court stated that in permitting these orders it was NOT trying to level the playing field between parties and the government.  The Secretary of State acts, in these matters, in the wider public interest and not as an interested party.

Finally, the court indicated that it would be mainly where Articles 2 and 3 were engaged that such orders were appropriate.  In cases alleging breach of some other article, the balance would almost certainly be struck the other way."

Lord Brown noted - "The difficulty raised by the present case is a very different one and, it should be recognised at once, one that faces the court with what can only be regarded as the most unpalatable of choices. It is lesser evils which the court is searching for here, not perfect solutions."

Lord Dyson whilst agreeing with the decision, gave his own judgment.

Further analysis of the case may be read at UK Human Rights Blog - "Secrecy for torture evidence - analysis" - Rosalind English.

Even though, in some circumstances, diplomatic assurances have been accepted by the European Court of Human Rights, reliance on them remains controversial - see Justice Journal - "The false promise of assurances against torture"  by Eric Metcalfe, Human Rights Director, Justice. 

Atlas on Torture - Algeria.

Also of interest is Human Rights Watch - article relating to their 2011 World report on Algeria -  which states that Algeria amended its penal code in 2004 to make torture an explicit crime. The International Committee of the Red Cross regularly visits ordinary prisons in Algeria, but not places of detention run by the powerful Department for Information and Security (DRS), an intelligence agency within the military.

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