The UK Supreme Court has held that a witness can give evidence to the Special Immigration Appeals Commission (SIAC) in such a way that the identity of the witness and the evidence itself remains secret. The case in question concerned Algerian nationals accused of terrorism who the Secretary of State sought to deport to Algeria. The appellants challenged the removal on the grounds that they would be tortured if returned to Algeria. One of the appellants wanted to adduce evidence from a witness which would support their case. However this witness would only give evidence if he/she was assured that it would be entirely confidential.
SIAC has operated ‘closed material procedures’ since 1997 with the introduction of the Special Immigration Appeals Commission Act. The Secretary of State is allowed to adduce evidence under this procedure where there are reasons of national security or other sufficient public interest reasons. This case however found the Secretary of State arguing against such allowances where it would be the appellants who sought introduction of such secret evidence. The arguments presented by the Secretary of State were twofold. Firstly it was submitted that placing an irrevocable non-disclosure order on the Secretary of State would render her unable to alert the foreign country of certain security risks and this would then imperil diplomatic relations. Secondly it was submitted that the Secretary of State would be unable to participate effectively in the proceedings as she would not be able to test the validity of the evidence. With regard to the first submission, the court held that, “It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently”. The court also held that, "to make an order without giving the secretary of state an opportunity to be heard is a clear breach of the principles of natural justice. Any such order requires compelling justification. Regrettably, however, the circumstances of a case sometimes call for unusual and undesirable remedies."
In allowing the Algerian’s appeal the court held that, “the imperative need here is to maximise SIAC’s chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task”.
Click here to read a report by the Guardian on the case
Click here to read the judgment