Naik, R (on the application of) v Secretary of State for the Home Department [2001] EWCA Civ 1546 (19 December 2011)

Summary

The England and Wales Court of Appeal has upheld a decision to refuse entry to the UK to an Indian national, finding that exclusion on the basis of his public statements constituted a justifiable interference with the right to freedom of expression under the European Convention on Human Rights.

Facts

Dr Zakir Naik is a Muslim speaker from India, reputed internationally for his views on Islam and comparative religion. In 2010, Naik made plans to visit the UK on a speaking tour, as he had done regularly since 1990.

Two days before Naik was due to arrive in the UK, the Home Secretary decided to refuse him entry. Naik was told that he was being excluded from the UK for “engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred”.

On 9 August 2010, the Home Secretary sent a letter to Naik confirming her decision. In this letter the Home Secretary included a list of Naik’s statements as evidence of his ‘unacceptable behaviour’, as well as purported examples of the impact of his statements on those engaged in terrorism.

After the Home Secretary’s decision was upheld by the High Court, Naik took his challenge to the Court of Appeal. One ground of appeal was that the Home Secretary’s decision breached the right to freedom of expression enshrined in article 10 of the ECHR, and was therefore unlawful under the Human Rights Act 1998 (UK).

Decision

Although there was no challenge to the legality of UK immigration policy, its application in Naik’s case is central to the findings regarding the ECHR. Following the London bombings in 2005, the then Home Secretary introduced an ‘unacceptable behaviours’ policy prescribing behaviours upon which persons may be excluded or deported from the UK. The policy was amended in 2008 to the effect that once a person is found to have engaged in one of the ‘unacceptable behaviours’, the presumption in favour of exclusion can only be displaced if that person proves he or she has publicly repudiated the past behaviour.

A number of Naik’s past speeches fell within the ‘unacceptable behaviours’ policy. These included statements that “as far as a terrorist is concerned, I tell the Muslims that every Muslim should be a terrorist” and “if a Muslim becomes a non-Muslim and propagates his/her new religion then there is a ‘death penalty’ for such a person in Islam”. The Home Secretary considered that Naik had not discharged the burden of proof in terms of publicly repudiating such views.

The Court of Appeal considered the ECHR at two levels.

First, the Court considered the territorial basis of the right to freedom of expression under article 10. As an alien not physically within the UK, there was authority for the argument that Naik could not invoke ECHR rights. The Court of Appeal shied away from limiting article 10 by this notion of strict territoriality but ultimately concluded that it was unnecessary to decide the point. Instead, it proceeded on the basis that article 10 was engaged in any case by Naik’s supporters in the UK, whose right to freedom of expression includes the freedom to receive information.

Second, the Court considered whether any interference with article 10 rights was lawful and justifiable. Article 10(2) of the ECHR provides that the right to freedom of expression may be subject to such interference as is necessary to, inter alia, protect public safety and the rights of others. The Court of Appeal emphasised that in cases concerning national security, decisions of government ministers must be attributed great weight. Nevertheless and particularly given the importance of freedom of expression, it is the distinct role of the courts to strictly supervise any interference with article 10 rights. In this case, the Court of Appeal found that the interference was proportionate to the legitimate aims of the ‘unacceptable behaviours’ policy and that the Home Secretary gave relevant and sufficient reasons for her decision.

While the Court may not have been overly persuaded by the depth of the evidence regarding Naik, and in particular not by the link drawn between Naik’s statements and the actions of those engaged in terrorism, it stressed that its task was of review rather than substituting its own views for those of the Home Secretary. In the words of Lord Justice Gross, “the decision reached by the [Home Secretary] was well within the wide margin of appreciation she enjoys”.

Relevance to the Victorian Charter

The right to freedom of expression, including the freedom to seek, receive and impart information, is set out in section 15 of the Charter. Under section 15(3), the right to freedom of expression may be subject to lawful restrictions, which are similar to the interference permitted by article 10(2) of the ECHR.  Naik’s case may provide guidance as to the likely interpretation of section 15(3) by Victorian courts, as well as the interpretation of limitations more generally under section 7(2).

The decision can be found online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1546.html

Daniel Allman is a Solicitor with the Human Rights Law Group at Mallesons Stephen Jaques

Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor [2011] EWCA Civ 1540 (14 December 2011)

Summary

On 14 December 2011, the England and Wles Court of Appeal overturned a decision of the High Court and issued a writ of habeas corpus requiring the UK Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence to make a request to the US Government for the release of Mr Yunus Rahmatullah from the Bagram Air Base in Afghanistan. The Court at first instance described Bagram as “a place said to be notorious for human rights abuses”. Mr Rahmatullah, a Pakistani national who had been captured by the British, had been held at Bagram since June 2004.

Facts

Mr Rahmatullah is a national of Pakistan and was captured by British forces in Iraq in February 2004. He was transferred to the custody of United States forces that moved him from Iraq to Bagram where he has remained without trial since June 2004. On 5 June 2010, a US Detainee Review Board determined that Mr Rahmatullah’s continued confinement was “not necessary to mitigate the threat he poses” and held that he was “not an enduring security threat”. The Review Board concluded that he should be released to Pakistan, however he remains at Bagram.

At the time Mr Rahmatullah was captured, handed over to US forces and transferred to Bagram, an MOU for the transfer of prisoners of war, and civilian internees and detainees was in place between the United Kingdom and the US. Clause 1 of the first MOU provided that the transfer arrangement was to be implemented in accordance with Geneva Conventions III and IV and customary international law. It is also provided in clause 4 that:

Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [in this case, the UK] will be returned by the Accepting Power [the US] to the Detaining Power without delay upon request by the Detaining Power.

Both the US and the UK are parties to the Geneva Conventions. On 7 February 2002, however, the US Government announced that in its view, Geneva III and Geneva IV did not apply to the conflict with Al-Qaeda. The first MOU was therefore necessary for the UK Government to comply with its obligations under Art 12 of Geneva III and Art 45 of Geneva IV, and satisfy itself of the willingness of the US to apply the Geneva Conventions to any prisoners of war or protected persons transferred by the UK to the US.

In October 2008 a second MOU was agreed, although it was not signed by the UK until 17 March 2009. Clause 4 of the second MOU required the US Forces to treat transferred detainees ‘in accordance applicable principles of international law, including humanitarian law’.

Arguments

Mr Rahmatullah argued that his detention was unlawful and although he was detained by the US, the UK Secretaries of State in fact enjoyed a sufficient degree of control over him to bring about his release or there must, at best, be doubt as to the extent, if any, of the control over Mr Rahmatullah enjoyed by the UK Secretaries of State. For these reasons, he argued the writ of habeas corpus should issue, as of right in the normal way, or so that the question of the control exercised by the Secretaries of State may be tested.

The UK Secretaries of State contended that the evidence established that they did not exercise control, or at any rate a sufficient degree of control, over Mr Rahmatullah to justify a writ of habeas corpus being issued; and that this argument was supported by the fact that the issue of the writ would involve the UK Government making a request of the US Government, which would involve stepping into the field of foreign relations.

At first instance, Laws LJ (with whom Silber J agreed) accepted that the Secretaries of State did not exercise sufficient control to justify the exercise of the writ. Mr Rahmatullah appealed.

Decision

Mr Rahmatullah was being unlawfully detained

The Master of the Rolls (Kay and Sullivan LJ agreeing) held that Mr Rahmatullah was being unlawfully detained on the basis that it was for the detainer to show that the detention is lawful, and the Secretaries of State had not challenged the issue.

The UK Government has a sufficient degree of control

The Court of Appeal found that there was sufficient uncertainty to justify the order for habeas corpus. The Court held that the UK Government was – at least – strongly arguably entitled to either demand Mr Rahmatullah’s release or to demand his return to UK custody under Art 45 of the Fourth Geneva Convention, and that the first MOU (if it still applied to Mr Rahmatullah) reinforced that conclusion.

In response to the Secretaries of States’ contention that the MOUs were not legally enforceable, the Court of Appeal, applying Barnardo [1892] AC 326, held that it would be:

…very unattractive to conclude that a writ of habeas corpus cannot issue where uncertainty as to the respondent’s control over the applicant arises from the effectiveness and enforceability of certain agreements, even though such a writ can … issue where the uncertainty arises from a need to investigate the facts.

Issuing the writ will not trespass into the ‘forbidden area’ of diplomatic or foreign relations

The Master of the Rolls characterised the Secretaries of States’ subtle argument that issuing the writ would trespass into the forbidden area of diplomatic affairs as being the main evidence supporting the UK Government not having a sufficient degree of control. Because the point was not advanced as a freestanding argument, the Court of Appeal held that it could not ‘stand in the way’ of Mr Rahmatullah’s appeal succeeding.

Lord Justice Kay’s comments were particularly forceful on this point (emphasis added):

On the face of it, the applicant is being unlawfully detained and the Secretaries of State have procedures at their disposal, whether arising solely from the Geneva Conventions or from a combination of the Conventions and the MOUs, to enable them to take steps which could bring the unlawful detention to an end. Beyond the unamplified invocation of ‘inappropriateness’ and ‘futility’, it is not explained why use of such procedures would or might damage the foreign relations of this country. In my judgement, the Court should be studious to avoid a refusal to protect personal liberty by withholding a writ of habeas corpus on such flimsy grounds. I do not say that it will never be lawful to refuse to act by reference to state interest but I do not accept that it has been demonstrated here that inhibitions about so doing negate the element of ‘control’.

Orders and update of events

The Court of Appeal ordered that the writ of habeas corpus be issued.

The British Government reported that on 16 December it asked the US Government for Mr Rahmatullah to be returned. The request had a return date of 21 December 2011. In the request, the British Government noted that it intended to appeal the decision of the Court of Appeal, but that such appeal would have no effect on Mr Rahmatullah’s right to be discharged pursuant to the order under domestic UK law. The Court gave the British Government an extension until 18 January 2012 to secure his release. If the US fails to comply with the request, Britain risks being put in breach of the Geneva Conventions.

On 24 January, the Washington Post reported that the US Government was considering the repatriation of non-Afghan detainees held at Bagram. Mr Rahmatullah is among these detainees.  The Washington Post notes that the Rahmatullah case is “another incentive to begin dealing with the non-Afghan population at the prison in Afghanistan”. However, the Washington Post also stated that administration officials said that although they are “willing to transfer Rahmatullah”, they “did not want the basis of such a move to be a foreign court decision”.

Relevance to the Victorian Charter

Sections 21 and 22 of the Victorian Charter of Human Rights relate to the right to liberty and security of person, and humane treatment while deprived of liberty, respectively. In particular, section 21(7) of the Charter states that a person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must make a decision without delay, and order the release of the person if it finds that the detention is unlawful. The Charter imposes an obligation on Victorian public authorities to act in a way that is compatible with human rights and requires all statutory provisions to be interpreted so far as is possible in a way that is compatible with human rights, among other things. The Charter does not extend to the Federal Government, therefore the Charter has no effect on the actions of the Australian Department of Defence. However, if a person was held in detention or under arrest by a Victorian public authority (for example the Victorian Police), that public authority would be under an obligation to act in a way that is compatible with human rights, including sections 21 and 22 referred to above.

The decision can be found online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1540.html

Suzy Muller is a Lawyer at Allens Arthur Robinson

Equality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) (3 October 2011)

Summary

The High Court of England and Wales has partially upheld claims by the Equality & Human Rights Commision and Mr Al Bazzouni (a former detainee) that Government guidance regarding what British intelligence officers should do if they suspect detainees being interviewed overseas are at risk of torture or cruel, inhuman or degrading treatment is unlawful. The High Court held that although the proposed difference between “serious” and “real” risk of torture or ill-treatment was merely academic (both requiring the officer to make a judgment call) and hooding may in some circumstances fail to constitute torture or ill-treatment, the reference to hooding as potentially excepted from the definition of ill-treatment in an Annex to the Guidance should be removed.

Facts

On 6 July 2010, the UK Prime Minister announced in Parliament his intention to establish an independent inquiry about the degree to which British intelligence officers working with foreign security services may have been implicated in the improper treatment of detainees held by other countries in the aftermath of the events of 11 September 2001.

At the same time, the Government published a document entitled Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (‘the Guidance’).

The Guidance “sets out the principles, consistent with UK domestic law and international law obligations, which govern the interviewing of detainees overseas” and states that “personnel whose actions are consistent with this guidance have good reason to be confident that they will not risk personal liability in the future.” [6]

The EHRC and Mr Al Bazzouni as claimants each contended that the Guidance may cause those acting in compliance with its instructions to act unlawfully.

Decision

The court addressed the following legal questions:

(a) Did the claims raise academic questions which the court should not entertain?

The guidance requires intelligence officers to consider whether the detainee or individual faces “a serious risk of torture at the hands of a third party” [11] before interviewing them or soliciting their detention and, if so, not to proceed.

The EHCR asserted that a “serious risk” constituted a lower legal threshold than a “real risk”, the proper legal test for secondary criminal liability, exposing officers to potential criminal liability for their actions when interviewing detainees. However, the court held that in this context there is no material distinction between a “serious risk” and “real risk” of torture or ill-treatmebt taking place, stating:

The context is that the document is intended to give practical guidance to intelligence officers on the ground. It is not a treatise on English criminal law. What matters is how the document would be read and applied by individual intelligence officers, not how it would fare at the Law Commission or in a University Graduate Law School. The document makes clear that, in all relevant instances other than where there is no serious risk of CIDT (section 2 of the table), the officer must not proceed at all (section 1) or the matter must be referred to senior personnel or Ministers. [61]

An Annexe to the guidance provides a non-exhaustive list of types of treatment that could constitute ill-treatment, including at section d(iii):

methods of obscuring vision or hooding (except where these do not pose a risk to the detainee’s physical or mental health and is necessary for security reasons during arrest or transit). [28]

Mr Al Bazzouni challenged the lawfulness of the exception stated in section d(iii), arguing that hooding of detainees will always constitute torture or ill-treatment and thus be unlawful. In relation to this, the court held that -

The extended debate about whether hooding would be an assault, battery, infringement of Article 3 of the Convention or other illegality is largely beside the point. It may possibly be that, in certain factual circumstances, hooding might conceivably be none of these, although the nature of hooding and its prohibition must mean that it very often would be. [91]

However, the court held that because the “series of difficult and confusing judgments which the exception in d(iii) of the Annex requires for its conceivably lawful operation is too great to expect officers on the ground to give effect to it without risking personal liability… d(iii) of the Annex should be changed to omit hooding from the ambit of the exception.”

In sum, although the court did not make a declaration or grant other substantive belief, its call for removal of the reference to hooding in section d(iii) of the Annex to the guidance is a minor victory, despite the fact that the court agreed that circumstances may exist in which hooding could be legal.

(b) Did the ECHR have standing to appear in the matter?

The court determined that the ECHR has standing to appear in the matter as, by section 3 of the Equality Act 2006, it must exercise its functions with a view to encouraging and supporting the development of a society in which there is, among other things, respect for and protection of each individual’s human rights and, by section 30, it has capacity to institute judicial review proceedings relevant to a matter in connection with which it has a function. [5]

Relevance to the Victorian Charter

Although this decision does not have direct application to the Victorian Charter, it may be regarded by local courts as instructive when interpreting section 10 of the Charter of Human Rights and Responsibilities Act 2006, which recognises a right to protection from torture and cruel, inhuman or degrading treatment, and section 22, which recognises a right to humane treatment when deprived of liberty.

The High Court dismissed both the Claimants’ and Defendants’ lengthy appeals to domestic criminal law, deciding the matter on the basis of practical rather than academic concerns.

The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2401.html

Bethany King is a volunteer with the Human Rights Law Centre.

Federation of Law Societies of Canada v Canada (Attorney General), 2011 BCSC 1270 (27 September 2011)

Summary

In the context of international pressure on states to combat anti-money laundering and terrorism financing, the Supreme Court of British Columbia has held that limitations on solicitor-client privilege imposed by anti-money laundering legislation violate principles of fundamental justice in contravention of the Canadian Charter of Rights and Freedoms. The decision will remove the legal profession from the operation of two pieces of anti-money laundering and terrorist financing legislation in Canada.

Facts

The case was brought by the Federation of Law Societies of Canada (FLSC).  The FLSC’s petition challenged the constitutionality of Canadian anti-money laundering and terrorism financing legislation, namely, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002-184.

The impugned legislation provided that members of the legal profession must comply with stringent client identification, verification, recording and reporting obligations for the purpose of combating money-laundering activities in Canada and, in its most extreme, permitted warrantless searches of lawyers’ offices. The maximum punishment specified for non-compliance with these provisions was imprisonment.

The FLSC argued that such requirements, in so far as they apply to the legal profession, breach both sections 7 and 8 of the Canadian Charter, because they (a) impinge upon solicitor-client confidentiality, which is a principle of fundamental justice; and (b) cannot be demonstrably justified in a free and democratic society.

Decision

Was there an infringement of s 7 of the Canadian Charter?

The Court concluded that the impugned provisions infringed s 7 of the Canadian Charter. That section states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Court held that the test for determining whether there has been a breach of s 7 is two-fold. First, there must be a deprivation of life, liberty or security of the person. Secondly, it must be shown that the deprivation does not accord with the principles of fundamental justice.

The risk that lawyers could be imprisoned as a penalty for non-compliance with the impugned legislation appeared sufficient to engage the first limb of the test. In addition, the Court considered that the underlying purpose of the legislation, being the advancement of the “criminal law interest of deterring, investigating and prosecuting crimes committed by lawyers’ clients”, put the liberty of lawyers’ clients at risk.

The Court held that to satisfy the second limb of the test, it must be established that:

• there is a legal principle;
• there is a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and
• the principle is capable of being identified with sufficient precision so as to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

The FLSC submitted that the fundamental legal principle of solicitor-client confidentiality and privilege was violated by the anti-money laundering and terrorism financing legislation. The Court agreed, citing authority that “the solicitor-client privilege is a principle of fundamental justice and civil right of supreme importance in Canadian law”.

In reaching this conclusion the Court focused on the purpose underlying the impugned legislative requirements. The Court considered it apparent that the legislation required lawyers to collect client information for the purpose of creating a paper trail for the benefit of law enforcement agencies. This infringed solicitor-client privilege to an unacceptable degree.

Was the infringement reasonable under s 1 of the Canadian Charter?

The Court held that the infringement could not be justified under sectio 1 of the Canadian Charter, which provides that Charter rights may be subject only to such reasonable limits “as can be demonstrably justified in a free and democratic society”. Although the Court recognised that the objectives of combating money laundering and terrorist financing in Canada are pressing and substantial, it did not consider the impugned legislation was proportionate to those objectives.

The Court considered that the extent of self-regulation already practised by the legal profession provides sufficient protection against money laundering and terrorism financing, and that the profession is better suited to provide this protection than a state entity. Moreover, the protective measures monitored by the law societies were considered to satisfy Canada’s international obligations to address money laundering and terrorism financing issues within the legal profession. In concluding that the impugned provisions would disproportionately impair the human right to liberty under section 7 of the Canadian Charter, the Court also noted the public interest in a self-regulated, independent bar, free from state interference.

Relevance to the Victorian Charter

Section 21(3) of the Victorian Charter provides:

A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

The right to liberty is the essence of both s 21(3) of the Victorian Charter and s 7 of the Canadian Charter. The Victorian provision, which requires a deprivation of liberty to accord with grounds and procedures established by law, is however narrower than its Canadian counterpart, which requires any deprivation of liberty to accord with “principles of fundamental justice”.

In the Canadian case, it was the failure to accord with a principle of fundamental justice, not simply procedures established by law, which the Court found objectionable. Certainly the case supports the special nature of solicitor-client confidentiality and the lengths to which courts will go to preserve the trust imbued in that relationship. However, unless principles of fundamental justice are considered to fall within the definition of a “procedure, established by law”, this case is unlikely to be directly relevant to the application of section 21(3) of the Victorian Charter.

The decision can be found online at: http://canlii.ca/en/bc/bcsc/doc/2011/2011bcsc1270/2011bcsc1270.html

Anna Martin is a solicitor with the Mallesons Stephen Jaques Human Rights Law Group.

Home Office v Tariq [2011] UKSC 35 (13 July 2011)

Summary

In this case, the United Kingdom Supreme Court considered the nature and scope of the right to a fair hearing and, in particular, the circumstances in which the nature of allegations against a person can be withheld from them in the interests of national security.

Facts

Mr Kashif Tariq was employed with the Home Office as an immigration officer from 21 April 2003 until he was suspended from duty on basic pay on 19 August 2006. Mr Tariq was suspended while consideration was given to the withdrawal of his security clearance granted on 18 February 2003. On 20 December 2006, Mr Tariq’s security clearance was withdrawn. His internal appeal and appeal to the Security Vetting Appeals Panel were unsuccessful.

On 10 August 2006, Mr Tariq’s brother and cousin were arrested during a counter-terrorism investigation into a suspected plot to mount a terrorist attack on transatlantic flights. Mr Tariq’s brother was subsequently released without charge. On 8 September 2008, Mr Tariq’s cousin was convicted of conspiracy to commit murder, having previously pleaded guilty to two counts of conspiracy to cause explosions and to commit a public nuisance. Investigations revealed that Mr Tariq had not himself been involved but there was a concern that he could be vulnerable to attempts to have him abuse his position at the Home Office.

Mr Tariq commenced proceedings in the Employment Tribunal on 15 March 2007. He complained that his security clearance was withdrawn in circumstances involving direct or indirect discrimination on grounds of race and/or religion. Mr Tariq argued that the Home Office had relied upon stereotypical assumptions about him and/or Muslims and/or people of Pakistani origin, such as susceptibility to coercion or brainwashing. The Home Office contended that there was no such discrimination and that the decisions made in relation to Mr Tariq were made for the purposes of safeguarding national security.

The Employment Tribunal made an order for a ‘closed material procedure’. This meant that the applicant and his representatives were excluded from certain aspects of the proceedings on the grounds of national security. Mr Tariq’s challenge to this order was dismissed by the Employment Appeal Tribunal on 16 October 2009 and the Court of Appeal on 4 May 2010. However, the Employment Appeal Tribunal’s declaration that article 6 of the European Convention on Human Rights required Mr Tariq to be provided with allegations made against him in sufficient detail so as to enable him to brief a special advocate to effectively challenge the allegations, was upheld by the Court of Appeal. The Home Office appealed to the Supreme Court against this declaration. Mr Tariq cross-appealed against the order for a closed material procedure.

Decision

While the right to a fair trial was considered to be an absolute right, the Court noted that the elements of a fair trial, or the rights that are implied by the right to a fair trial, are not. Consequently, the Court had to determine whether the closed material procedure, in restricting a public hearing, would amount to a denial of the right a fair hearing to the applicant. In articulating the relevant issue, Lord Hope stated:

At the heart of both the appeal and the cross-appeal are two principles of great importance. They pull in different directions. On the one hand there is the principle of fair and open justice. … On the other there is the principle that gives weight to interests of national security. … The context will always be crucial to a resolution of questions as to where and how this balance is to be struck.

Lord Mance, with whom Lords Hope, Brown, Kerr (in part, see below), Dyson, Phillips, Clarke and Lady Hale agreed, referred to three cases of the European Commission and Court of Human Rights, which establish that national security is a relevant countervailing interest that may ”justify a system for handling and determining complaints under which an applicant is, for reasons of national security, unable to know the secret material by reference to which his or her complaint is determined.”

The Home Office argued that the scrutiny of the Employment Tribunal of the secret material and the appointment of a special advocate for the applicant is sufficient to overcome any disadvantage created by the closed material procedure. The majority of the Court agreed that within these circumstances, the right to a fair trial did not require a disclosure of allegations to the applicant. Lord Mance emphasised the fact that the case did not affect the liberty of the applicant and that the deprivation or interference with liberty is much more serious. Lord Mance, therefore, distinguished between criminal cases and those concerning surveillance and security vetting in determining whether a closed material procedure will prevent a fair trial.

Lord Kerr agreed that the closed material procedure is not necessarily incompatible with article 6 of the European Convention. However, Lord Kerr dissented on the question of whether the Court of Appeal was correct in finding that it was necessary for the Home Office to disclose sufficient information about the allegations against him. Lord Kerr noted

The opportunity to know and effectively test the case against him (the core irreducible minimum entitlement) surely captures the essence of the right [to a fair trial]. And it seems to me that the essence of the right cannot change according to the context in which it arises.

Consequently, Lord Kerr considered that it was necessary for a party to be provided with sufficient information about the allegations to allow him or her to give effective instructions to a special advocate. Lord Kerr would have dismissed both the appeal and cross-appeal.

Relevance to the Victorian Charter

As stated above, the UK Supreme Court found that the right to a fair trial is considered an absolute right. However, the elements of this right, or the rights implied by it, including the right for a trial to be heard in public, are not. This case may provide interpretative assistance for Victorian courts and tribunals in relation to the right to a fair and public hearing protected by section 24(1) of the Charter. This is particularly the case with respect to a court or tribunal’s discretion to exclude persons from all or part of a hearing if permitted to do so by a law other than the Charter, provided by section 24(2).

The can be found online at: http://www.bailii.org/uk/cases/UKSC/2011/35.html

Aleisha Brown is a Law Graduate with Allens Arthur Robinson

BB, R (on the application of) v Special Immigration Appeals Commission & Anor [2011] EWHC 336 (Admin) (25 February 2011)

Summary

This case considered procedural requirements in the hearing of bail applications made by persons detained on undisclosed national security grounds. The England and Wales High Court concluded that, as a minimum requirement in such applications, government authorities must disclose to the detainees the evidence it used in deciding to deport them. This is so despite the fact that the government can legally detain people pending their deportation on the basis of undisclosed material.

Facts

The case concerned an Algerian national (BB) whom British authorities had detained after investigations revealed that he had links to Islamic extremists. He was held in immigration detention pending deportation. BB appealed to the Special Immigration Appeals Commission (SIAC) against the decision to deport him, but was unsuccessful. BB subsequently made a bail application for release from detention pending deportation. The application was also refused by the SIAC. BB then applied to the High Court for judicial review of the bail decision.

The original decision to deport BB was based on the conclusion that he was a national security risk. For national security reasons, the material used for reaching this conclusion were not disclosed to BB nor to BB’s legal advisers. The material was, however, disclosed to a special advocate acting on BB’s behalf. The subsequent refusal of bail was based on the conclusion that BB was a national security risk, which was reached in the earlier decision to deport. The question before the High Court was whether it was a violation of the right to fair hearing under the European Convention on Human Rights (ECHR) for the SIAC to refuse BB’s bail application based on undisclosed evidence.

Decision

The Legal Context

Article 6 of the ECHR confers the right to a fair hearing in criminal and civil proceedings.  Article 5(4) states that a person deprived of his liberty by arrest or detention is entitled to take proceedings to determine the lawfulness of his detention. In A v United Kingdom (2009) 49 EHRR 29, it was concluded that, in the context of persons challenging the lawfulness of their detention under British anti-terrorism legislation, article 5(4) required that they be afforded the fair hearing guarantees under article 6. In particular, this required the government authorities to disclose to the detainees the evidence it used in deciding to detain them. The European Court considered that while not all evidence needs to be disclosed where national security is concerned, the government must still disclose sufficient information to allow the detainees to effectively answer the key allegations made against them.

In R (Cart) v Upper Tribunal, R (U) and (XC) v Special Immigration Appeals Commission [2009] EWHC 3052, the High Court held that the disclosure requirements set out in A v United Kingdom apply to bail applications before the SIAC by persons who have been detained pending deportation. However, it has also been recognised that decisions to deport an alien do not, of themselves, attract the procedural requirements under article 6 (see RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28).

The effect of these decisions is that, in BB’s case, the ECHR does not require the disclosure of evidence in the original decision to deport him, where it was concluded that BB was a national security risk. However, in the subsequent bail application by BB, the government is required to disclose sufficient information as to allow him to effectively answer the allegations against him.

The High Court considered whether it was a breach of BB’s right to a fair hearing in the bail application for the SIAC to rely on its earlier conclusion from the closed deportation decision that BB was a national security risk, without disclosing the evidence against him.

SIAC’s Arguments

The SIAC advanced two arguments why it should not have to disclose evidence to BB in the bail application. First, it argued that as it was not required to disclose the evidence for concluding that BB posed a national security risk in the original deportation decision, it could legitimately rely on that conclusion in subsequent bail application. To require disclosure in the subsequent proceeding amounts to reopening the original decision to deport, which the SIAC argued was perfectly valid. Secondly, the SIAC pointed out that it was not strictly required under the ECHR to hear bail applications by persons detained pending deportation. Therefore, it was argued that the practical effect of requiring the disclosure of evidence in bail proceedings was that the SIAC simply will not hear bail applications in the future. This would lead to a worse practical result for the detainees.

Court’s Conclusion

The Court held that the SIAC was required to disclose to BB the evidence against him on the national security issue, at least to the extent to allow him to effectively answer the allegations. The Court held that while such a requirement may lead to the original deportation decision being reopened in some instances, the risk is not so great as to warrant denying the detainee’s procedural rights. As to the prospect that SIAC may simply stop hearing bail applications, the court stated its paramount concern for procedural fairness.

Relevance to the Victorian Charter

The Victorian Charter contains the equivalent of articles 5(4) and 6 of the ECHR in substantially the same language. Section 24 of the Charter provides for right to a fair and public hearing in criminal and civil proceedings. Section 21(7) provides that a person deprived of liberty is entitled to apply to a court to determine the lawfulness of his/her detention. Furthermore, section 21(4) requires that a person who is arrested or detained must be informed of the reason for the arrest or detention. Therefore, it appears that the Charter expressly supports the detainee’s right to the disclosure of evidence against him/her which emerged from BB.

The decision is at http://www.bailii.org/ew/cases/EWHC/Admin/2011/336.html.

Tian Xu, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

R v Ahmad, 2011 SCC 6 (10 February 2011)

Summary

The Supreme Court of Canada has held that a two court scheme regulating the disclosure of information relating to international relations, national defence or national security in criminal proceedings does not violate the right to a fair trial. Properly interpreted, the statutory scheme was sufficiently flexible to preserve the full authority of the judge presiding over the criminal trial to do justice between the parties and preserve the rights of the defendant to a fair trial.

Facts

In June 2006, 18 people were arrested in the Greater Toronto Area on suspicion of plotting terrorist attacks. Ten of the 18 people were scheduled to be tried before a judge of the Ontario Superior Court of Justice (the Superior Court). Section 38 of the Canada Evidence Act R.S.C. 1985, c. C-5 (the Act) establishes a two court scheme regulating the disclosure in court proceedings of sensitive information relating to international relations, national defence or national security (the Scheme). Under the scheme, all parties in a court proceeding are obliged to notify the Attorney General of Canada if they consider that sensitive information is about to be disclosed. The Attorney General must decide whether to authorise disclosure or to refer the matter to the Federal Court for determination.  Where the disclosure of information would be injurious to international relations, national defence or national security, the Federal Court judge may only authorise disclosure if the public interest in disclosure outweighs the public interest in non-disclosure. Importantly, the Scheme also provides that a person presiding in criminal proceedings may make any order that he/she considers appropriate in the circumstances to protect the rights of the accused to a fair trial, as long as that order complies with the terms of any order permitting or prohibiting disclosure.  However, the Scheme does not expressly grant the person presiding at the criminal proceeding a right to access the sensitive material.

In March and June 2008, pursuant to the Scheme, the Crown notified the Attorney General that the Superior Court proceedings involving the 10 accused might disclose sensitive information. The Attorney General brought the disclosure issue before the Federal Court and the Federal Court ordered that a hearing be held and that the judge of the Superior Court be notified. The 10 accused brought an application in the Superior Court challenging the constitutionality of the Scheme. The Superior Court held that the scheme was unconstitutional and breached the right to a fair trial found in s 7 of the Canadian Charter of Rights and Freedoms (the Canadian Charter).

The trial judge held that the resolution of the disclosure issue and the determination of whether there had been a violation of the accused’s right to a fair trial were so intertwined that they could not be separated into functions performed by two separate courts. Depriving the Superior Court of the ability to resolve the disclosure issue necessarily prevented the Superior Court from determining whether there had been a breach of the accused’s Charter rights. The Crown appealed the decision.

Decision

The Supreme Court disagreed with the trial judge’s analysis, and upheld the appeal.

The appeal concerned a potential conflict between the State’s obligation to protect society against disclosure of information that poses a threat to international relations, national defence or national security and the state’s obligation to prosecute individuals accused of offences against Canada’s laws.  Importantly, the court emphasised that “where the conflict is irreconcilable, an unfair trial cannot be tolerated. Under the rule of law, the right of an accused person to make full answer and defence may not be compromised”.

In the absence of clear and unambiguous statutory language to the contrary, the legislation ought to be applied flexibly and in light of what the trial judge requires to exercise his or her remedial discretion. The “drastic nature” of the potential remedies available to the trial judge to ensure compliance with the accused’s rights (including, for example, a complete stay of proceedings) means that Parliament intended trial judges to be provided with a sufficient basis of relevant information on which to exercise these powers. In adopting this ‘practical approach’, the Supreme Court emphasised that the words of the Act need to be read harmoniously with the scheme and object of the Act and the intention of Parliament and that Parliament is presumed to have intended to enact legislation in conformity with the Canadian Charter.

First, although the Act appeared to grant the Federal Court a wide discretion as to whether to hold a hearing on the disclosure matter, the court considered that the Act must be read down so that, unless the judge decides that the information ought to be disclosed, there must be a hearing on the disclosure issues. Similarly, although the Act appeared to grant the Federal Court discretion in determining who should be given notice that a hearing on the disclosure issues is being conducted, conformity with the Charter required that the Act be read so as to require that the defendant and the trial judge be given notice of the hearing.

Third, the respondents and the trial judge had incorrectly assumed that because the judge presiding at a criminal trial has no right of access to potentially injurious or sensitive material, such access will not normally occur. However, the Supreme Court pointed to a number of possible arrangements which could ensure that the trial judge has the necessary information to assess the impact of non disclosure. For example, in making its determination, the Federal Court may authorise partial or conditional disclosure to the trial judge, provide a summary of the information, or advise the trial judge that certain facts sought to be established by an accused may be assumed to be true for the purposes of the proceeding. Further, the Scheme may operate in stages, such that the trial judge may initially determine that under current access arrangements, it cannot be satisfied that non-disclosure would not impact on the accused’s right to a fair trial. In these circumstances, the Crown should be advised and the Attorney General given the opportunity to make further and better disclosure to address the trial judge’s concerns. If no additional information can be provided, and the trial judge is unable to satisfy him or herself that non-disclosure has not adversely impacted on trial fairness, then the charter requires that a stay of proceedings be issue: “Doubt, in this respect, should be resolved in favour of protecting the fair trial rights of the accused, including the right of full answer and defence”.

Interpreted in this way, the court found that the Scheme preserved the full authority and independence of the judge presiding over the criminal trial to do justice between the parties, including, where necessary, to enter a stay of proceedings.

Relevance to the Victorian Charter

The Supreme Court adopted its practical interpretation of the Scheme relying on the principle that Parliament is presumed to have intended to enact legislation that conforms with the Canadian Charter. Section 32(1) of the Victorian Charter requires statutory provisions to be interpreted in a way that is compatible with human rights so far as it is possible to do so consistently with their purpose. The Supreme Court’s reading down of the statute so as to confirm with the Canadian Charter was quite substantial. Whether an Australian court would adopt quite as flexible approach in interpreting a statutory scheme in accordance with the Victorian Charter remains to be seen.

The substantive issue in this case would not arise in Australia. The National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) establishes a similar scheme to the Canadian Scheme, imposing an obligation on each party to a federal criminal proceeding to notify the Attorney General where that party expects to introduce information which relates to national security. There are a number of important differences to the Canadian Scheme. First, the Australian scheme only applies to federal criminal proceedings where the prosecutor has given notice in writing to the defendant that the scheme applies. Second, it is the court presiding over the federal criminal proceedings that considers whether there is a risk to national security if the information is disclosed and also whether non-disclosure would have a substantial adverse affect on the defendant’s right to a fair trial. Unlike in Canada, there is no separation of the two functions between two courts.

The decision is at www.canlii.org/en/ca/scc/doc/2011/2011scc6/2011scc6.html.

Rosannah Healy is a Lawyer and Pro Bono Coordinator at Allens Arthur Robinson

Aydin v Germany [2011] ECHR 141 (27 January 2011)

Summary

The applicant, a Turkish national, brought a claim in the European Court of Human Rights against the Federal Republic of Germany under Article 34 of the European Convention on Human Rights (the ‘ECHR’). The applicant alleged that her criminal conviction for breaching a ban on the activities of the Workers’ Party of Kurdistan (‘PKK’) violated her right to freedom of expression.

At each stage of the case, the issue was not the legality of the applicant’s expression of her opinions and advocacy of lifting the ban, but rather whether Germany could impose penalties for material support for the PKK and the applicant’s alleged declaration of intention to continue defying the ban. The ECHR found that the penalties so imposed were not in breach of Article 10 of the ECHR.

Facts

The German Interior Ministry issued a ban on the activities of the PKK in 1993. In 1999 the leader of the PKK, Abdullah Öcalan, was captured and in 2000 the PKK announced that it had adopted a new strategy of non-violent legal resistance. In 2001, the PKK launched a “peace initiative” which resulted in more than 100,000 declarations being submitted to German public prosecutors’ offices. The declarations voiced members’ support for and membership of the PKK and demanded the lifting of bans and a change in the policy of European states. The applicant was involved in collecting declarations and submitting them to the office of the Berlin public prosecutor. She also made a donation to a banned sub-organisation of the PKK. She was sentenced by the Berlin Regional Court to 150 daily fines of €8 each. It was agreed that the activities of the PKK had been largely peaceful for about two years before the making of the declarations.

Decision

Berlin Regional Court

The Berlin Regional Court said that the declaration and the campaign were likely to have a positive effect on the PKK’s unlawful activities. Part of the declaration said that “I do not acknowledge this prohibition and … I assume all responsibility arising therefrom”, which was taken as an expression of intention to defy the declaration in the future and continue supporting the PKK.

Because the declaration was interpreted to say that the applicant would continue to support the PKK even if the ban were not lifted, the Regional Court said that it did not fall within the applicant’s right to freedom of expression under Article 5 of the German Basic Law (Constitution).

Federal Court of Justice

The Federal Court of Justice dismissed the applicant’s appeal on points of law. It was relevant that rather than addressing the declarations to the Federal Interior Ministry, which had the power to lift the ban, they were addressed to the public prosecutor’s office, with the stated aim of overburdening the prosecution service.

Federal Constitutional Court

The Federal Constitutional Court said that the activities of an association could only be banned if it generally and continuously pursued dangerous aims. Such a ban does not affect the expression of opinions or the pursuit of individual political aims, but rather support purposefully lent to the activities of the banned organisation. The right to freedom of expression would be overridden if a person advocated opinions which would be seen by an unbiased observer as directly related to the activities of the association.

The declarations would have been exempt from criminal liability if they had been limited to demanding freedom and self-determination and a lifting of the ban. However because they contained a commitment not to respect the ban in the future, even with the threat of criminal sanctions, they ‘transgressed the boundaries … of declarations of solidarity and sympathy in favour of an association affected by a ban’.

European Court of Human Rights

In her argument, the applicant emphasised the peaceful non-violent nature of the declaration and the activities of the PKK at the time, and the importance of government actions in particular being subject to free and open debate. The applicant also contested the interpretation of the declaration adopted by the domestic courts, which had found that the declaration expressed an intention to defy the ban and break the criminal law.

The Court said that it was not in issue that the applicant could lawfully express an opinion condemning the ban and calling for it to be lifted. The question was ‘whether [her] criminal conviction for lending support to an illegal organisation violated her right to freedom of expression under Article 10 of the Convention’.

It was not disputed that the conviction was an “interference” with her right. Therefore the interference, to be lawful, had to fall within the requirements of Article 10.

The conviction was “prescribed by law” within the meaning of Article 10 of the ECHR because the relevant law and case law were sufficiently precise to make the consequences of the applicant’s actions foreseeable. The conviction pursued a legitimate aim within the meaning of Article 10 because it was designed to protect public order and safety. Furthermore, because the relevant authority was able to lift the ban and the applicant’s right to advocate this publicly was protected, she was in a position to work towards a lifting of the ban without risking prosecution.

The Court also found that the thorough examination by the domestic courts of the words of the declaration did not give rise to an interpretation that was inconsistent with the applicant’s rights under Article 10. The domestic courts also took into consideration the fact that the applicant had separately contravened the ban by making a donation to a sub-organisation of the PKK and, as a mitigating factor in sentencing, the fact that she was relying on her right to freedom of expression. The penalty was not considered excessive by the Court.

As a result, there was no violation of Article 10 of the ECHR.

Dissenting opinion of Judge Kalaydjieva

Judge Kalaydijeva disagreed with the majority’s application of Article 10 on a number of points.

In particular, there was an issue about the retrospectivity of the criminal penalties, which was not addressed by the majority because the argument had not been raised in the domestic courts. However Judge Kalaydjieva considered that this retrospectivity meant that the interference with the applicant’s rights was not “prescribed by law” for the purposes of Article 10.

Relevance to the Victorian Charter

This decision provides an analysis of the politically charged area of banning so-called terrorist organisations. The result of the decision is that it is lawful to advocate a change to the law, but that a government is able to impose criminal penalties for defying a lawful ban applied to an organisation.

The right to freedom of expression in s 15 of the Victorian Charter of Human Rights and Responsibilities Act 2006 can be subject to restrictions reasonably necessary for the protection of national security, public order, public health or public morality (s 15(3)(b)).

Because terrorism offences are under Commonwealth legislation and likely to be enforced by Commonwealth agencies, the Charter may be of limited relevance to situations arising as a result of those provisions. However, this decision does provide clear support for protecting the right to freedom of expression by recognising the right to advocate a change to the law without breaking the law. It also recognises that laws banning particular organisations are intrusive and do have an effect on people’s right to freedom of expression. If this question is ever tested in Australian law similar issues may have to be balanced by Australian courts.

The decision is at: www.bailii.org/eu/cases/ECHR/2011/141.html

Alex Bowen is a Solicitor in the Human Rights Law Group at Mallesons Stephen Jaques

AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010)

A recent decision before the England and Wales Court of Appeal has found that if a control order is legally flawed, or revoked by the Secretary of State, then it shall be quashed ab initio.

Facts

A number of persons residing in the UK, including AN, AE and AF, were subject to control orders issued by the Secretary of State under s 1(2)(a) of the Prevention of Terrorism Act 2005.  Following the House of Lords’ decision in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, the Secretary of State decided to revoke the orders in force instead of disclosing further information to the controlees. 

However, proceedings against the controlees remained pending in the Administrative Court under s 3(1) of the Act and so the question was whether the control orders were to be quashed ab initio or prospectively.  In AN [2009] EWHC 1966 (Admin), the Court held for prospective revocation, while in AE and AF [2010] EWHC 42 (Admin), the Court held the orders were quashed ab initio. 

In the first case, AN was subject to criminal action for breaching his control order and, if the order was quashed ab initio, his prosecution would have failed.  Meanwhile, AE and AF wished to seek damages in the second case for the 3.5 years that they were subject to control orders. 

The findings in the AN and AE and AF cases can be contrasted as follows.  In AN, Mitting J acknowledged that he had a discretion under s 3(12) of the Act to quash the order or to have it revoked.  Justice Mitting concluded that at the time of issuing the control order, the Secretary of State was entitled to rely on closed material without disclosing it and that it was not therefore a nullity. 

However, in AE and AF, Silber J held he was bound to quash the control order ab initio because:

• significant authority supported such a finding;
• anything less would render the controlees’ rights under art 6 (the right to a fair hearing) ineffectively secured; and
• ultimately, had the Secretary of State complied with the disclosure obligations, which were eventually affirmed in AF (No 3), the control orders would not have proceeded.

AN and the Secretary of State appealed to the England and Wales Court of Appeal challenging the respective findings on the revocation of control orders.

Decision

This decision was the first of the control order cases before the higher courts to provide a definitive ruling on whether flawed control orders are quashed ab initio.  In concluding that the appropriate remedy in all cases is one of quashing ab initio, as held by Silber J and not revocation as held by Mitting J, the Court of Appeal discussed a number of pertinent issues.

The Secretary of State and administrative acts

The Court of Appeal rejected Mitting J’s finding that a non-derogating control order so closely resembles a court order that it retains its validity unless set aside by a court.  According to Maurice Kay LJ (with whom Rix LJ and Stanley Burnton LJ agreed), the Act vested the power to make non-derogating control orders exclusively in the Secretary of State and the Court’s role is merely to supervise.  Consequently, their Honours concluded that if a control order is legally flawed then it is to be dealt with like any other flawed administrative act by being quashed ab initio.

Reasonableness and good faith

While the Court of Appeal acknowledged that the Secretary of State was acting in good faith, their Honours rejected Mitting J’s finding that this was a relevant consideration and held that regardless of intention, the effect was to interfere with the human rights of the controlled persons.  The Court held it is a fallacy to suggest a control order is valid and there are reasonable grounds on the one hand, without then being willing to disclose the material on which the Secretary of State relies.

Revocation

Their Honours rejected the submission that s 3(12)(c) of the Act dealing with revocation is emasculated if it was not one of the remedies available in the circumstances.  The Court went on to say that s 3(12)(c) is of importance and use, but only when the circumstances have changed from a time where a control order is sustainable to a period where it becomes flawed.  This scenario did not occur on the facts and so the structure of the Act assumes a flawed control order is void ab initio.

Human Rights Act and habeas corpus

The Court of Appeal acknowledged that the art 6 right to a fair trial under the Human Rights Act 1998 may not apply at an administrative stage of determination.  However, their Honours held it was nevertheless axiomatic as the Secretary of State knows he will have to abide by disclosure requirements and justify the order to the court. 

The Court of Appeal also rejected the suggestion that the case was conceptually different to an art 5 right to liberty case and referred to the principle of habeas corpus.  Ultimately, the court concluded the principle that ‘no member of the executive can interfere with the liberty of a British subject except on the condition that he can support the legality of his action before a court of justice’ is not confined to the full deprivation of liberty cases.

Relevance to the Victorian Charter

This decision may be of persuasive value when interpreting the right to a fair trial under s 24 and the right to liberty and security under s 21 of the Charter.  However, in the absence of a federal human rights instrument, the decision will have limited direct applicability to Australian control orders issued under the Criminal Code 1995 (Cth) and the application of the habeas corpus rule in such circumstances.

The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/869.html.

Julien du Vergier, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Evans, R (on the application of) v Secretary of State for Defence [2010] EWHC 1445 (Admin) (25 June 2010)

Ms Evans, a peace activist, sought to stop the practice of British personnel transferring detainees to the Afghan authorities by arguing the practice exposed such transferees to a real risk of torture or serious misconduct.

The British High Court, while troubled by this case, determined the operation of British monitoring systems (which included regular and full access to the detention facilities and individual transferees) would be sufficient to safeguard against the occurrence of abuse and, while isolated examples of abuse may occur, a consistent pattern of abuse that would expose all British transferees to a real risk of ill-treatment was not reasonably likely. 

Facts

Currently, approximately 9000 British armed forces personnel operate in Afghanistan.  Subject to the law of armed conflict, those British forces are authorised to kill or capture insurgents and this power to capture extends to a power to detain temporarily. 

Concurrently, the Afghan Government is entitled to prosecute those within its jurisdiction who are believed to have committed offences against Afghan law.  This is considered to be an important element of the strategy for securing the rule of law and bringing security to Afghanistan. 

What follows is that, where captured insurgents are believed to have committed offences against Afghan law, there are sound reasons for transferring them into the custody of the Afghan authorities for the purposes of questioning and prosecution.  According to British policy, however, detainees must not be transferred into the custody of Afghan authorities if there is a real risk they will suffer torture or serious mistreatment.

Ms Evans, a peace activist opposed to the presence of UK and US armed forces in Afghanistan, sought to stop the practice of transferring detainees into Afghan custody.  To that end, she argued that transferees in Afghan custody have been, and continue to be, at real risk of torture or serious mistreatment and, as such, the practice of transfer has been, and continues to be, in breach of the policy and unlawful.

Decision

Independent reports considered by the Court painted a picture of widespread and serious ill-treatment of detainees in Afghanistan.  Against that background, the Court concluded it was essential for British personnel to implement an effective set of safeguards for the transfer of detainees into Afghan custody.  This meant complying with international human rights obligations, including ensuring full access to detainees for the purpose of monitoring their conditions. 

When considering the type of access required, the Court said it is necessary to consider a number of aspects: physical access to facilities, the extent to which it is possible to locate detainees at those facilities and the quality of the visits to individual detainees (for example, whether interviews could be conducted in private so that detainees could voice any complaints they had about their treatment).

Following a consideration of the evidence, the Court determined there existed the possibility British transferees would be subjected to torture or serious mistreatment at all facilities.  However, it held that, while isolated examples of abuse may occur, a consistent pattern of abuse that would expose all British transferees to a real risk of ill-treatment was not reasonably likely at NDS Kandahar and NDS Lashkar Gah provided:

• all transfers were made on the express basis British personnel would be given full access to each transferee on a regular basis;
• each transferee was actually visited on a regular basis; and
• British personnel would consider the immediate suspension of transfers if full access was denied at any point without an obviously good reason or a transferee made an allegation of serious mistreatment which could not be reasonably and rapidly dismissed as unfounded.

The British High Court held that transfers to NDS Kabul, on the other hand, where access to detainees was denied, would expose transferees to a real risk of torture or serious mistreatment and as such would be unlawful.

Relevance to the Victorian Charter

The Court found this a ‘troubling and difficult case’ and noted ‘[i]f it were not possible to transfer detainees to Afghan custody, the consequences would be very serious’.  For example, detainees would have to be released after a short time, leaving them free to renew their attacks and cause further death and injury and the opportunity to prosecute them and gain intelligence would be lost.  Nonetheless, the Court was clear that none of these considerations affect the standard to be applied when determining the lawfulness of the transfer of detainees. 

In light of this decision, if the transfer of a detainee raises a real risk of torture or serious mistreatment, the transfer breaches the prohibition against torture and ill-treatment regardless of the consequences of not being able to transfer that detainee.  Therefore, the prohibition against torture and ill-treatment requires Australian authorities to put in place adequate safeguards for assessing the risk of torture and serious mistreatment before detainees are transferred out of their custody. 

The decision is at www.bailii.org/ew/cases/EWHC/Admin/2010/1445.html. 

Susanna Kirpichnikov is a lawyer with Lander & Rogers