CASE OF A. AND OTHERS v. THE UNITED KINGDOM

No violation of Art. 3;No violation of Art. 13+3;Preliminary objection rejected (Government not precluded from raising defence under Art. 5-1-f or claiming that the derogation under Article 15 was invalid);No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 5-4;Violation of Art. 5-5;Remainder inadmissible;Pecuniary and non-pecuniary damage - award

Christos Rozakis;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristaq Traja;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Nona Tsotsoria;Stanislav Pavlovschi

On DATE CARDINAL commercial aeroplanes were hijacked over GPE . CARDINAL of them were flown directly at FAC of ORG and a third at the ORG , causing great loss of life and destruction to property . The NORP extremist terrorist organisation ORG , led by PERSON , claimed responsibility . GPE joined with GPE in military action in GPE , which had been used as a base for ORG training camps .

The Government contended that the events of DATE demonstrated that international terrorists , notably those associated with ORG , had the intention and capacity to mount attacks against civilian targets on an unprecedented scale . Further , given the loose - knit , global structure of ORG and its affiliates and their fanaticism , ruthlessness and determination , it would be difficult for the ORG to prevent future attacks . In the ORG ’s assessment , GPE , because of its close links with GPE , was a particular target . They considered that there was an emergency of a most serious kind threatening the life of the nation . Moreover , they considered that the threat came principally , but not exclusively , from a number of foreign nationals present in GPE , who were providing a support network for NORP terrorist operations linked to ORG . A number of these foreign nationals could not be deported because of the risk that they would suffer treatment contrary to LAW in their countries of origin .

On DATE the Secretary of ORG made a derogation order under LAW DATE ( “ the DATE ” – see paragraph CARDINAL below ) in which he set out the terms of a proposed notification to the Secretary General of ORG of a derogation pursuant to LAW . On DATE the Government lodged the derogation with the Secretary General of ORG . The derogation notice provided as follows :

“ Public emergency in GPE

The terrorist attacks in GPE , GPE , GPE and GPE on DATE resulted in CARDINAL deaths , including many NORP victims and others from CARDINAL different countries . In its Resolutions CARDINAL ( CARDINAL ) and DATE ( DATE ) , ORG recognised the attacks as a threat to international peace and security .

The threat from international terrorism is a continuing one . In its Resolution CARDINAL ( DATE ) , ORG , acting under LAW , required all GPE to take measures to prevent the commission of terrorist attacks , including by denying safe haven to those who finance , plan , support or commit terrorist attacks .

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

As a result , a public emergency , within the meaning of LAW , exists in GPE .

The Anti - terrorism , Crime and Security Act DATE

As a result of the public emergency , provision is made in the LAW - terrorism , LAW DATE , inter alia , for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from GPE but where removal or deportation is not for the time being possible , with the consequence that the detention would be unlawful under existing domesticlaw powers . The extended power to arrest and detain will apply where the Secretary of ORG issues a certificate indicating his belief that the person ’s presence in GPE is a risk to national security and that he suspects the person of being an international terrorist . That certificate will be subject to an appeal to ORG ( ‘ PERSON ) , established under ORG Act DATE , which will have power to cancel it if it considers that the certificate should not have been issued . There will be an appeal on a point of law from a ruling by ORG . In addition , the certificate will be reviewed by ORG at regular intervals . ORG will also be able to grant bail , where appropriate , subject to conditions . It will be open to a detainee to end his detention at any time by agreeing to leave GPE .

The extended power of arrest and detention in the Anti - terrorism , Crime and Security Act DATE is a measure which is strictly required by the exigencies of the situation . It is a temporary provision which comes into force for an initial period of DATE and then expires unless renewed by ORG . Thereafter , it is subject to DATE renewal by ORG . If , at any time , in the ORG ’s assessment , the public emergency no longer exists or the extended power is no longer strictly required by the exigencies of the situation , then the Secretary of ORG will , by order , repeal the provision .

Domestic - law powers of detention ( other than under the Anti - terrorism , Crime and Security Act DATE )

The Government has powers under LAW DATE ( ‘ the DATE Act’ ) to remove or deport persons on the ground that their presence in GPE is not conducive to the public good on national security grounds . Persons can also be arrested and detained under LAW and DATE to the DATE LAW pending their removal or deportation . The courts in GPE have ruled that this power of detention can only be exercised during the period necessary , in all the circumstances of the particular case , to effect removal and that , if it becomes clear that removal is not going to be possible within a reasonable time , detention will be unlawful ( NORP v. Governor of ORG , ex parte PERSON [ DATE ] All ER CARDINAL ) .

LAW ( f ) of the Convention

It is well established that LAW ( f ) permits the detention of a person with a view to deportation only in circumstances where ‘ action is being taken with a view to GPE ( PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL at paragraph CARDINAL ) . In that case ORG indicated that detention will cease to be permissible under LAW ( f ) if deportation proceedings are not prosecuted with due diligence and that it was necessary in such cases to determine whether the duration of the deportation proceedings was excessive ( paragraph CARDINAL ) .

In some cases , where the intention remains to remove or deport a person on national security grounds , continued detention may not be consistent with LAW ( f ) as interpreted by ORG in the PERSON case . This may be the case , for example , if the person has established that removal to their own country might result in treatment contrary to LAW . In such circumstances , irrespective of the gravity of the threat to national security posed by the person concerned , it is well established that LAW prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that Article . If no alternative destination is immediately available then removal or deportation may not , for the time being , be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made . In addition , it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of GPE and the high standard of proof required .

Derogation under LAW

The Government has considered whether the exercise of the extended power to detain contained in the Anti - terrorism , Crime and Security Act DATE may be inconsistent with the obligations under LAW . As indicated above , there may be cases where , notwithstanding a continuing intention to remove or deport a person who is being detained , it is not possible to say that ‘ action is being taken with a view to GPE within the meaning of LAW ( f ) as interpreted by ORG in the PERSON case . To the extent , therefore , that the exercise of the extended power may be inconsistent with GPE obligations under LAW , the ORG has decided to avail itself of the right of derogation conferred by LAW and will continue to do so until further notice . ”

The derogation notice then set out the provisions of Part CARDINAL of the Anti - terrorism , Crime and Security Bill CARDINAL .

On DATE the Anti - terrorism , Crime and Security Bill , containing the clauses which were to eventually become Part CARDINAL of the Anti - terrorism , Crime and Security Act DATE ( “ the DATE LAW see paragraph DATE below ) , was introduced into ORG . The PERSON was passed by ORG in DATE , with DATE of debate on the floor of ORG set aside for its CARDINAL clauses in a restrictive programming motion , prompting both ORG and the Home Affairs Select Committee to complain of the speed with which they were being asked to consider the matter .

The DATE Act came into force on DATE . During the lifetime of the legislation , QUANTITY individuals , including the present CARDINAL applicants , were certified under LAW and detained . The first CARDINAL applicants were certified on DATE and taken into detention shortly thereafter . The seventh applicant was certified and detained in DATE ; the ninth applicant on DATE ; the eighth applicant on DATE ; the tenth applicant on DATE ; and the eleventh applicant was certified on DATE and kept in detention , having previously been held under other legislation .

NORP In proceedings before ORG ( DATE see paragraphs CARDINAL below ) , the first CARDINAL applicants challenged the legality of the derogation , claiming that their detention under LAW was in breach of their rights under LAW , DATE , DATE and CARDINAL of the Convention . Each , in addition , challenged the Secretary of ORG ’s decision to certify him as an international terrorist .

On DATE , having examined both open and closed material and heard submissions from special advocates in addition to counsel for the parties and for the third party , ORG , ORG delivered its ruling on the legality of the derogation . It held that , on the basis of the open material , it was satisfied that the threat from ORG had created a public emergency threatening the life of the nation , within the meaning of LAW , and that the closed material confirmed this view .

ORG further held that the fact that the objective of protecting the public from international terrorists could possibly have been achieved by alternative methods did not demonstrate that the measures actually adopted were not strictly necessary . Moreover , since the purpose of the detention was the protection of GPE , the fact that the detainee was at liberty to leave demonstrated that the measures were properly tailored to the state of emergency .

ORG rejected the ORG complaints under LAW . It held that , in so far as they related to conditions of detention , the applicants should bring proceedings in the ordinary civil courts , and that ORG had no jurisdiction to determine such a complaint as it was not a “ derogation issue ” . It further saw no merit in the applicants’ argument that detention for an indefinite period was contrary to LAW . On this point , ORG held that the detention was not indefinite , since it was governed by the time - limits of the CARDINAL LAW itself and since the DATE Act provided that each applicant ’s certification was subject to automatic review by ORG DATE . In any event , the mere fact that no term had yet been fixed for preventive detention did not give rise to a breach of LAW .

ORG did not accept that LAW applied to the certification process . The certification of each applicant as a suspected international terrorist was not a “ charge ” but instead a statement of suspicion and the proceedings before ORG were not for the determination of a criminal charge . Furthermore , there was no relevant civil right at issue and LAW did not apply in its civil limb either .

ORG did , however , rule that the derogation was unlawful because the relevant provisions of the DATE Act unjustifiably discriminated against foreign nationals , in breach of LAW . The powers of LAW could properly be confined to non - nationals only if the threat stemmed exclusively , or almost exclusively , from non - nationals and the evidence did not support that conclusion . In paragraphs CARDINAL - CARDINAL of its judgment , ORG held :

“ CARDINAL . If there is to be an effective derogation from the right to liberty enshrined in DATE in respect of suspected international terrorists – and we can see powerful arguments in favour of such a derogation – the derogation ought rationally to extend to all irremovable suspected international terrorists . It would properly be confined to the alien section of the population only if , as [ counsel for the appellants ] contends , the threat stems exclusively or almost exclusively from that alien section .

But the evidence before us demonstrates beyond argument that the threat is not so confined . There are many NORP nationals already identified – mostly in detention abroad – who fall within the definition of ‘ suspected international ORG , and it was clear from the submissions made to us that in the opinion of the [ Secretary of ORG ] there are others at liberty in GPE who could be similarly defined . In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin . ”

ORG thus quashed the derogation order of DATE and issued a declaration of incompatibility in respect of LAW under section CARDINAL of LAW ( see paragraph CARDINAL below ) .

It adjourned the first CARDINAL ORG individual appeals against certification ( see paragraphs CARDINAL below ) pending the outcome of the Secretary of ORG ’s appeal and the applicants’ cross - appeal on points of law against the above ruling .

On DATE ORG delivered its judgment ( NORP and Others v. Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL ) .

It held that ORG had been entitled to find that there was a public emergency threatening the life of the nation . However , contrary to the view of ORG , it held that the approach adopted by the Secretary of ORG could be objectively justified . There was a rational connection between the detention of non - nationals who could not be deported because of fears for their safety , and the purpose which the Secretary of ORG wished to achieve , which was to remove non - nationals who posed a threat to national security . Moreover , the applicants would be detained for no longer than was necessary before they could be deported or until the emergency was resolved or they ceased to be a threat to the country ’s safety . There was no discrimination contrary to LAW , because NORP nationals suspected of being terrorists were not in an analogous situation to similarly suspected foreign nationals who could not be deported because of fears for their safety . Such foreign nationals did not have a right to remain in the country but only a right , for the time being , not to be removed for their own safety . ORG added that it was well established in international law that , in some situations , GPE could distinguish between nationals and non - nationals , especially in times of emergency . It further concluded that ORG had been entitled to limit the measures proposed so as to affect only foreign nationals suspected of terrorist links because it was entitled to reach the conclusion that detention of only the limited class of foreign nationals with which the measures were concerned was , in the circumstances , “ strictly required ” within the meaning of LAW .

ORG agreed with ORG that the proceedings to appeal against certification were not “ criminal ” within the meaning of LAW . It found , however , that the civil limb of LAW applied but that the proceedings were as fair as could reasonably be achieved . It further held that the applicants had not demonstrated that their detention amounted to a breach of LAW .

The applicants were granted leave to appeal to ORG , which delivered its judgment on DATE ( [ DATE ] ORG CARDINAL ) .

A majority of ORG , expressly or impliedly , found that the applicants’ detention DATE Act did not fall within the exception to the general right of liberty set out in LAW ( f ) of LAW ( see Lord PERSON , at paragraphs CARDINAL - CARDINAL ; Lord PERSON , at paragraph CARDINAL ; Lord Hope , at paragraphs CARDINAL - CARDINAL ; Lord PERSON , at paragraph CARDINAL ; Lord PERSON , at paragraph CARDINAL ; ORG , at paragraph CARDINAL ) . Lord PERSON summarised the position in this way :

“ CARDINAL . ... A person who commits a serious crime under the criminal law of this country may of course , whether a national or a non - national , be charged , tried and , if convicted , imprisoned . But a non - national who faces the prospect of torture or inhuman treatment if returned to his own country , and who can not be deported to any third country , and is not charged with any crime , may not under LAW ( f ) of LAW to LAW DATE be detained here even if judged to be a threat to national security . ”

ORG further held , by CARDINAL ( ORG and PERSON with considerable hesitation ) , that ORG ’s conclusion that there was a public emergency threatening the life of the nation should not be displaced . Lord Hope assessed the evidence as follows :

“ CARDINAL . There is ample evidence within [ the open ] material to show that the government were fully justified in taking the view in DATE that there was an emergency threatening the life of the nation . ... [ The ] GPE was at danger of attacks from the ORG network which had the capacity through its associates to inflict massive casualties and have a devastating effect on the functioning of the nation . This had been demonstrated by the events of DATE in GPE , GPE and GPE . There was a significant body of foreign nationals in GPE who had the will and the capability of mounting coordinated attacks here which would be just as destructive to human life and to property . There was ample intelligence to show that international terrorist organisations involved in recent attacks and in preparation for other attacks of terrorism had links with GPE , and that they and others posed a continuing threat to this country . There was a growing body of evidence showing preparations made for the use of weapons of mass destruction in this campaign . ... [ It ] was considered [ by ORG ] that the serious threats to the nation emanated predominantly , albeit not exclusively , and more immediately from the category of foreign nationals .

The picture which emerges clearly from these statements is of a current state of emergency . It is an emergency which is constituted by the threat that these attacks will be carried out . It threatens the life of the nation because of the appalling consequences that would affect us all if they were to occur here . But it can not yet be said that these attacks are imminent . On DATE the Secretary of ORG said in ORG that there was no immediate intelligence pointing to a specific threat to GPE : see ORG , col CARDINAL ) . On DATE this assessment of the position was repeated in the government ’s response to ORG of ORG on the Threat from Terrorism ( ORG CARDINAL , para CARDINAL ) where it was stated that it would be wrong to say that there was evidence of a particular threat . I would not conclude from the material which we have seen that there was no current emergency . But I would conclude that the emergency which the threats constitute is of a different kind , or on a different level , from that which would undoubtedly ensue if the threats were ever to materialise . The evidence indicates that the latter emergency can not yet be said to be imminent . It has to be recognised that , as the attacks are likely to come without warning , it may not be possible to identify a stage when they can be said to be imminent . This is an important factor , and I do not leave it out of account . But the fact is that the stage when the nation has to face that kind of emergency , the emergency of imminent attack , has not been reached . ”

Lord PERSON , who dissented , accepted that there was credible evidence of a threat of serious terrorist attack within GPE , but considered that it would not destroy the life of the nation , since the threat was not so fundamental as to threaten “ our institutions of government or our existence as a civil community ” . He concluded that “ the real threat to the life of the nation ... comes not from terrorism but from laws such as these ” .

The other Law Lords ( Lords GPE , PERSON , Hope , PERSON , PERSON , ORG and ORG , with Lord PERSON dissenting ) rejected the ORG ’s submission that it was for ORG and the executive , rather than the courts , to judge the response necessary to protect the security of the public . Lord PERSON expressed his view as follows :

“ DATE . It follows from this analysis that the appellants are in my opinion entitled to invite the courts to review , on proportionality grounds , the derogation order and the compatibility with the Convention of section CARDINAL [ of LAW ] and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised . It also follows that I do not accept the full breadth of the Attorney - General ’s submissions . I do not in particular accept the distinction which he drew between democratic institutions and the courts . It is of course true that the judges in this country are not elected and are not answerable to ORG . It is also of course true ... that ORG , the executive and the courts have different functions . But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic ORG , a cornerstone of the rule of law itself . The Attorney - General is fully entitled to insist on the proper limits of judicial authority , but he is wrong to stigmatise judicial decision - making as in some way undemocratic . It is particularly inappropriate in a case such as the present in which ORG has expressly legislated in section CARDINAL of the CARDINAL Act to render unlawful any act of a public authority , including a court , incompatible with a Convention right ; has required courts ( in section CARDINAL ) to take account of relevant GPE jurisprudence ; has ( in section CARDINAL ) required courts , so far as possible , to give effect to Convention rights and has conferred a right of appeal on derogation issues . The effect is not , of course , to override the sovereign legislative authority of the Queen in ORG , since if primary legislation is declared to be incompatible the validity of the legislation is unaffected ( section CARDINAL(CARDINAL ) ) and the remedy lies with the appropriate minister ( section CARDINAL ) , who is answerable to ORG . LAW gives the courts a very specific , wholly democratic , mandate . ”

NORP The majority therefore examined whether the detention regime under LAW was a proportionate response to the emergency situation , and concluded that it did not rationally address the threat to security and was a disproportionate response to that threat . They relied on CARDINAL principal grounds : firstly , that the detention scheme applied only to non - nationals suspected of international terrorism and did not address the threat which came from GPE nationals who were also so suspected ; secondly , that it left suspected international terrorists at liberty to leave GPE and continue their threatening activities abroad ; thirdly , that the legislation was drafted too broadly , so that it could , in principle , apply to individuals suspected of involvement with international terrorist organisations which did not fall within the scope of the derogation .

On the first point , Lord PERSON emphasised that ORG ’s finding that the terrorist threat was not confined to non - nationals had not been challenged . Since ORG was the responsible fact - finding tribunal , it was unnecessary to examine the basis for its finding , but there was evidence that “ upwards of CARDINAL individuals from the GPE are estimated on the basis of intelligence to have attended training camps in GPE in DATE ” ; that some NORP citizens were said to have planned to return from GPE to GPE ; and that the background material relating to the applicants showed the high level of involvement of NORP citizens and those otherwise connected with GPE in the terrorist networks . Lord PERSON continued :

“ CARDINAL . ... It is plain that sections CARDINAL and CARDINAL of the DATE Act do not address the threat presented by GPE nationals since they do not provide for the certification and detention of GPE nationals . It is beside the point that other sections of LAW and the CARDINAL Act do apply to GPE nationals , since they are not the subject of derogation , are not the subject of complaint and apply equally to foreign nationals . Yet the threat from GPE nationals , if quantitatively smaller , is not said to be qualitatively different from that from foreign nationals . It is also plain that sections CARDINAL and CARDINAL do permit a person certified and detained to leave GPE and go to any other country willing to receive him , as CARDINAL of the appellants did when they left for GPE and GPE respectively ... Such freedom to leave is wholly explicable in terms of immigration control : if the NORP authorities wish to deport a foreign national but can not deport him to country ‘ A’ because of PERSON their purpose is as well served by his voluntary departure for country ‘ B’ . But allowing a suspected international terrorist to leave our shores and depart to another country , perhaps a country as close as GPE , there to pursue his criminal designs , is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country . ...

The fifth step in the appellants’ argument permits of little elaboration . But it seems reasonable to assume that those suspected international terrorists who are GPE nationals are not simply ignored by the authorities . When [ the fifth applicant ] was released from prison by ORG on bail ... it was on condition ( among other things ) that he wear an electronic monitoring tag at all times ; that he remain at his premises at all times ; that he telephone a named security company CARDINAL times DATE at specified times ; that he permit the company to install monitoring equipment at his LOC ; that he limit entry to his LOC to his family , his solicitor , his medical attendants and other approved persons ; that he make no contact with any other person ; that he have on his premises no computer equipment , mobile telephone or other electronic communications device ; that he cancel the existing telephone link to his LOC ; and that he install a dedicated telephone link permitting contact only with the security company . The appellants suggested that conditions of this kind , strictly enforced , would effectively inhibit terrorist activity . It is hard to see why this would not be so .

In urging the fundamental importance of the right to personal freedom , as the sixth step in their proportionality argument , the appellants were able to draw on the long libertarian tradition of LANGUAGE law , dating back to LAW of PERSON DATE , given effect in the ancient remedy of habeas corpus , declared in LAW , upheld in a series of landmark decisions down DATE and embodied in the substance and procedure of the law to our own day . ... In its treatment of LAW , ORG also has recognised the prime importance of personal freedom . ...

The appellants’ proportionality challenge to the order and section CARDINAL is , in my opinion , sound , for all the reasons they gave and also for those given by the NORP Commissioner for Human Rights and ORG . The Attorney - General could give no persuasive answer . ”

In addition , the majority held that the DATE Act was discriminatory and inconsistent with LAW , from which there had been no derogation . The applicants were in a comparable situation to GPE nationals suspected of being international terrorists , with whom they shared the characteristics of being irremovable from GPE and being considered a threat to national security . Since the detention scheme was aimed primarily at the protection of GPE from terrorist attack , rather than immigration control , there was no objective reason to treat the applicants differently on grounds of their nationality or immigration status .

Although the ORG appeal had included complaints under LAW and QUANTITY of the LAW , ORG did not consider it necessary to determine these complaints since it had found the derogation to be unlawful on other grounds .

It granted a quashing order in respect of the derogation order , and a declaration under LAW ( see paragraph CARDINAL below ) that section CARDINAL of the DATE Act was incompatible with Articles CARDINAL § CARDINAL and CARDINAL of the Convention in so far as it was disproportionate and permitted discriminatory detention of suspected international terrorists .

Meanwhile , ORG ’s hearing of the applicants’ individual appeals against certification commenced in DATE , after ORG had given judgment in the derogation proceedings but before the above judgment of ORG .

For the purposes of each appeal to ORG , the Secretary of ORG filed an “ open statement ” summarising the facts connected to the decision to certify each applicant and as much of the supporting evidence which the Secretary of ORG considered could be disclosed without giving rise to any risk to national security . A further , “ closed ” statement of facts and evidence was also placed before ORG in each case .

On DATE ORG issued a “ generic ” judgment in which it made a number of findings of general application to all the appeals against certification .

As regards preliminary issues , it found , inter alia , that it had jurisdiction to hear an appeal against certification even where the person certified had left GPE and the certificate had been revoked . It held that the tests whether reasonable grounds existed for suspicion that a person was a “ terrorist ” and for belief that his presence in GPE was a risk to national security , within the meaning of section DATE CARDINAL Act , fell “ some way short of proof even on the balance of probabilities ” . It further held that “ reasonable grounds could be based on material which would not be admissible in a normal trial in court , such as hearsay evidence of an unidentified informant ” . The weight that was to be attached to any particular piece of evidence was a matter for consideration in the light of all the evidence viewed as a whole . Information which might have been obtained by torture should not automatically be excluded , but the court should have regard to any evidence about the manner in which it was obtained and judge its weight and reliability accordingly .

ORG held that the detention provisions in the CARDINAL Act should be interpreted in the light of the terms of the derogation . The threat to the life of the nation was not confined to activities within GPE , because the nation ’s life included its diplomatic , cultural and tourism - related activities abroad . Moreover , attacks on GPE allies could also create a risk to GPE , given the interdependence of countries facing a global terrorist threat . The derogation identified the threat as emanating from ORG and its associates . It was therefore necessary , in respect of both the “ national security ” and the “ international terrorist ” limbs of section CARDINAL of the CARDINAL Act , to show reasonable grounds for suspicion that the person certified was part of a group which was connected , directly or indirectly , to ORG . Even if the main focus of the group in question was a national struggle , if it backed ORG for a part of its agenda and the individual nonetheless supported the group , it was a legitimate inference that he was supporting and assisting ORG .

ORG also made a number of findings of fact of general application concerning organisations alleged by the Secretary of ORG to be linked to ORG . These findings were based on both “ open ” and “ closed ” material . Thus , it held , for example , that ORG for Call and Combat ( GSPC ) , which was formed in GPE in DATE , was an international terrorist organisation linked to ORG through training and funding , but that the earlier NORP organisation , ORG ( ORG ) , was not . ORG ( EIJ ) was either part of ORG or very closely linked to it . The Chechen Arab Mujahaddin was an international terrorist group , pursuing an anti - West agenda beyond the struggle for NORP independence , with close links to ORG . ORG also identified as falling within the terms of the derogation a group of primarily NORP extremists centred around GPE , an NORP who had lived in GPE from DATE . It was alleged that GPE had held a senior role in training camps in GPE and had many contacts in ORG , including a connection with the GPE cell which had been accused of plotting to bomb the Strasbourg Christmas Market in DATE . PERSON was arrested in DATE , following an extradition request from GPE , but his group remained active .

The applicants appealed against ORG ’s ruling that evidence which might have been obtained by torture was admissible . For the purposes of the appeal , the parties agreed that the proceedings before ORG to challenge certification fell within LAW and as such had to satisfy the basic requirements of a fair trial . It was not , therefore , necessary to decide whether LAW also applied and the issue was left open .

On DATE ORG , by a majority , upheld ORG ’s decision ( [ CARDINAL ] EWCA Civ CARDINAL ) .

On DATE ORG held unanimously that the evidence of a suspect or witness which had been obtained by torture had long been regarded as inherently unreliable , unfair , offensive to ordinary standards of humanity and decency and incompatible with the principles on which courts should administer justice . It followed that such evidence might not lawfully be admitted against a party to proceedings in a GPE court , irrespective of where , by whom and on whose authority the torture had been inflicted . Since the person challenging certification had only limited access to the material advanced against him in the proceedings before ORG , he could not be expected to do more than raise a plausible reason that material might have been so obtained and it was then for ORG to initiate the relevant enquiries . ORG therefore allowed the ORG appeals and remitted each case to ORG for reconsideration ( [ DATE ] ORG CARDINAL ) .

SIAC ’s conclusions as regards each applicant ’s case are set out in paragraphs QUANTITY below . Of the CARDINAL individuals , including the CARDINAL applicants , detained under LAW , one had his certificate cancelled by ORG .

The first applicant was born in a NORP refugee camp in GPE , is stateless , and was granted indefinite leave to remain in GPE in DATE . On DATE the first applicant was certified by the Secretary of ORG as a suspected international terrorist under LAW . On DATE a deportation order was made on the same grounds .

The first applicant was taken into detention on DATE . He subsequently appealed to ORG against certification and the decision to make a deportation order . On DATE he was transferred to ORG .

The first applicant and his representatives were served with the Secretary of ORG ’s “ open ” material , including a police report which showed that large sums of money had moved through the CARDINAL bank accounts in his name . ORG and the special advocate instructed on behalf of the first applicant were in addition presented with “ closed ” evidence . Assisted by an interpreter , the first applicant gave oral evidence to LAW and called CARDINAL witness to testify to his good character . He also filed CARDINAL medical reports concerning his mental health . ORG observed in its judgment of DATE :

“ We are acutely aware that the open material relied on against the Applicant is very general and that the case depends in the main upon assertions which are largely unsupported . The central allegation is that he has been involved in fund - raising and distribution of those funds for terrorist groups with links to ORG . It is also said that he has procured false documents and helped facilitate the movement of jihad volunteers to training camps in GPE . He is said to be closely involved with senior extremists and associates of PERSON both in GPE and overseas . His case is and always has been that he is concerned and concerned only with welfare projects , in particular a school in GPE for the children of NORP speakers there and projects such as construction of wells and provision of food to communities in GPE . He has also raised money for refugees from GPE . Any contact with so - called extremists has been in that context and he had no reason to believe they were terrorists or were interested in terrorism .

We recognise the real difficulties that the Appellant has in making this appeal . We have made appropriate allowance for those difficulties and his mental problems . We note [ his counsel ’s ] concerns that there has been gross oversimplification by ORG of the situation which is , he submits , highly complex and a tendency to assume that any devout NORP who believed that the way of life practised by the ORG in GPE was the true way to follow must be suspect . We note , too , that initially the Respondent asserted that all the Appellant ’s fund - raising activities were for the purpose of assisting terrorism and that it was only when evidence was produced by the Appellant to show that there were legitimate charitable objectives that he accepted that at least some money was raised for those purposes . In so far as connections with named individuals are relied on , we bear in mind that some of them , who are alleged to be involved in terrorism , have appeals pending ... and that allegations against others have not been tested nor have alleged links been able to be explained .

[ The first applicant ’s counsel ] accepted , as he had to , the unreliability of the PERSON ’s evidence about his movements in DATE , but asked us not to hold it against him because of his mental state . We do not accept that we can do that . The lies were a deliberate attempt to rebut the allegation that he had been a mujahid in GPE , saying that he spent DATE in a NORP prison . There was an overstatement by the police of the amount involved through the bank account . This we accept , but there was still a substantial sum of money going through them . And [ the applicant ’s counsel ] submitted that the allegation was that he had provided false documents for others not for himself . Thus his false GPE passport was not material . It does however show an ability to obtain a false passport . [ The applicant ’s counsel ] attacked the reliability of the intelligence relied on against the Appellant since it was only belatedly accepted that he had been involved in genuine charitable work and that some of the money going through his account and raised by him was for such a purpose . We recognise the danger that all activities by one who is under suspicion may be regarded as themselves suspicious and that there may not be a fair consideration of all material to see whether it truly does support the suspicion . We have considered all the material , in particular that which is closed , with that danger in mind .

As we have said , the open evidence taken in isolation can not provide the reasons why we are dismissing this appeal and we sympathise with [ the first applicant ’s counsel ’s ] concerns that he had a most difficult task . We were not impressed with the Appellant as a witness , even making all allowances for his mental state and the difficulties under which he was labouring . He was often evasive and vague and has admittedly told lies in relation to his movements in DATE . His explanations about some of the transactions recorded in his bank accounts we have found difficult to follow or accept . We should say that we do not consider that the Respondent ’s case is significantly advanced by what has been said about the Appellant ’s involvement with GPE or GPE ; the case depends essentially on the evidence about the Appellant ’s dealings with GPE and with terrorists known to have links with ORG .

It is clear that the Appellant was a very successful fund - raiser and , more importantly , that he was able to get the money to GPE . Whatever his problems , he was able to and was relied on to provide an efficient service . His explanations both of who were the well known terrorists whose children were at the school and of the various of the more substantial payments shown in the bank accounts are unsatisfactory . He was vague where , having regard to the allegations made against him , we would have expected some detail .

We have considered all the evidence critically . The closed material confirms our view that the certification in this case was correct . There is both a reasonable belief that the Appellant ’s presence in GPE is a risk to national security and a reasonable suspicion that he is a terrorist within the meaning of section DATE CARDINAL Act . This appeal is accordingly dismissed . ”

In accordance with the terms of LAW , the first applicant ’s case was reviewed by ORG DATE . In its judgment of DATE , ORG found that :

“ The updated open generic material ... continues to show that there is a direct terrorist threat to GPE from a group or groups of largely NORP extremists , linked in various ways to ORG .

Although some of his contacts have been detained , the range of extremists prominent in various groups was such that he would have no difficulty and retains the will and ability to add his considerable experience of logistic support to them in pursuit of the extremist NORP agenda in the GPE . The certificate is properly maintained . ”

ORG reviewed the case again on DATE and again found that the certificate should be maintained .

The second applicant is a citizen of GPE born on DATE . He entered GPE as a visitor in DATE and was granted leave to remain as a student . On DATE he was granted indefinite leave to remain on the basis of his marriage to a NORP citizen , which subsequently broke down . In DATE and again in DATE he applied for naturalisation , but no decision was made on those applications . In DATE he remarried another NORP citizen , with whom he has a child .

On DATE the second applicant was certified by the Secretary of ORG as a suspected international terrorist under LAW . A deportation order was made on DATE . The second applicant was taken into detention on DATE . He appealed against the certification and deportation order but , nonetheless , elected to leave GPE for GPE on DATE . He pursued his appeals from GPE .

In its judgment of DATE , ORG summarised the “ open ” case against the second applicant as follows :

( CARDINAL ) he has links with both the ORG and the LOC [ NORP terrorist groups : see paragraph CARDINAL above ] and is a close associate of a number of NORP extremists with links to ORG and/or PERSON .

( CARDINAL ) he has been concerned in the preparation and/or instigation of acts of international terrorism by procuring high - tech equipment ( including communications equipment ) for the LOC and/or NORP extremists in GPE led by PERSON and has also procured clothing for the latter group .

( CARDINAL ) he has supported CARDINAL or more of the ORG , the LOC and the PERSON faction in GPE by his involvement in fraud perpetrated to facilitate the funding of extremists and storing and handling of propaganda videos promoting the jihad .

NORP The Secretary of ORG ’s open case expands on those allegations and further indicates the use of CARDINAL alias and a pattern of association with individuals known or assessed to be involved in terrorism [ CARDINAL individuals were identified ] . All these were described by [ counsel for the Secretary of ORG ] as ‘ known NORP Islamic extremists’ .

Witness B [ for the Secretary of ORG ] confirmed that the allegation against [ the second applicant ] is that he is a member of a network , rather than a member of any particular organisation such as the GPE or the ORG . ”

ORG continued by explaining the findings it had made against the applicant :

“ Like the other Appellants , [ the second applicant ] is not charged in these proceedings with a series of individual offences . The issue is whether , taking the evidence as a whole , it is reasonable to suspect him of being an international terrorist ( as defined ) . When we look at the material before us , as we do , we treat it cumulatively . It might be that the material relating to fraud alone , or to clothing alone , or to videos alone , or to associations , would not by itself show that a person was in any way involved in terrorism or its support . But we need to assess the situation when various factors are found combined in the same person . Those factors are as follows . First is his involvement in acts of fraud , of which he must be aware but of which he seeks to provide no explanation , excusing himself apparently on the ground that he is not aware which particular act or acts the Secretary of ORG has in mind . Secondly , he has been involved in raising consciousness ( and hence in raising money ) about the struggle in GPE , and has been doing so in a specifically NORP ( rather than a merely humanitarian ) context , using and distributing films which , according to the evidence before us , tend to be found in extremist communities . In the generic evidence , we have dealt with NORP Mujahaddin and the significance of support for it which we accepted is given in full knowledge of its wider jihadist agenda . ... [ He ] has done so as a close associate of GPE . Given the information we have about GPE which , as we have said , we have no reason to doubt , we regard [ the second applicant ’s ] claim that GPE was doing nothing illegal ( save that he was hiding his activities from the NORP ) as entirely implausible . ... [ He ] has had associations with a number of other individuals involved in terrorism . They are for the most part specified by name in the open case but are not mentioned in his own statement . ...

These are the CARDINAL features which meet in [ the second applicant ] . No doubt the Secretary of ORG could have made his case by demonstrating various combinations of them in a single person . With all CARDINAL , we regard the case as compelling . We are entirely satisfied that the Secretary of ORG is reasonable in his suspicion that [ the second applicant ] supports or assists the ORG , the LOC , and the looser group based around GPE , and in his belief that at any time [ the second applicant ] is in GPE his presence here is a risk to national security . ”

The third applicant is of NORP nationality , born in DATE and resident in GPE from DATE . He was certified by the Secretary of ORG on DATE and detained the following day .

In its judgment of DATE , dismissing the third applicant ’s appeal against certification , ORG observed :

“ The case against the Appellant , as framed in the open material , is that he is a key member of an extreme NORP group known as ORG ( TFG ) . It is said that this group was formed during DATE and had its origins in ORG ( known as the ORG since the name is in NORP ) . Its ultimate aim is said to be to establish an NORP State in GPE . It is further asserted that the Appellant has been in regular contact with a number of known extremists including some who have been involved in terrorist activities or planning . Both the ORG and the ORG are said to have links with ORG .

The open material deployed against the Appellant is not at all substantial . The evidence which is relied on against him is largely to be found in the closed material . This has meant that he has been at a real disadvantage in dealing with the case because he is not aware of those with whom he is alleged to have been in contact .

In his statement the Appellant says that he has never heard of the PERSON and is certainly not a member of it . ... We have no doubts that the PERSON exists ... [ and ] also that it has links to ORG . Our reasons for so concluding must be given in the closed judgment .

In DATE the Appellant and some CARDINAL others were arrested in a joint Special Branch and ORG operation pursuant to warrants under LAW . The Appellant was released without charge and in due course received £ CARDINAL compensation for wrongful arrest . The arrests were in connection with allegations of involvement in a plot to target the World Cup in GPE . We of course give weight to the absence of any admissible evidence to support the Appellant ’s involvement in the alleged conspiracy , but it is not and can not be the answer to this appeal . We have to consider all the material to see whether there are reasonable grounds for a belief or suspicion of the kind referred to in section ORG ) or ( b ) of the CARDINAL Act .

We are satisfied that the Appellant is a member of the ORG , itself an international terrorist organisation within the scope of LAW , and that he has links with an international terrorist group . We appreciate that our open reasons for being so satisfied are sparse . That is because the material which drives us to that conclusion is mainly closed . We have considered it carefully and in the context of knowing the Appellant denies any involvement in terrorism or any knowing support for or assistance to terrorists . We have therefore been careful only to rely on material which can not in our judgment have an innocent explanation . ”

ORG reached similar conclusions in its periodic reviews of the case on DATE and on DATE .

The fourth applicant was born in GPE in DATE and first entered GPE in DATE . In DATE he was arrested and charged with a number of offences , including a conspiracy to export to GPE material which it was alleged was to be used for the purposes of terrorism . It was alleged that he was a member of PERSON . The case against the applicant was abandoned in DATE when a key witness , a ORG agent , who was to give evidence concerning the need for civilians to defend themselves against atrocities allegedly committed by the NORP government , decided that it was too dangerous for him to give evidence .

In DATE the fourth applicant married a NORP national . He became a NORP citizen in DATE , although he did not inform the GPE authorities of this . The Secretary of ORG certified him under LAW on DATE and he was detained on DATE . On DATE he left for GPE , where he was interviewed on arrival by security officials and then set at liberty . Since he had left GPE , the certificate against him was revoked and the revocation was backdated to DATE .

In its judgment of DATE , ORG held that the backdating of the revocation meant that the fourth applicant could not be regarded as having been certified at the time he lodged his appeal and that , therefore , he had no right of appeal . It nonetheless decided to consider the appeal on the basis that this conclusion might be wrong . Since the Secretary of ORG could not reasonably have known at the time the certificate was issued that the applicant was a NORP citizen and could safely be removed to GPE , it could not be said on that ground that the certificate should not have been issued . ORG therefore continued by assessing the evidence against him :

“ In reaching our decision , we will have to consider not only the open but also the closed material . The Appellant appears to have suspected that he was the subject of surveillance over much of the relevant period .

We are conscious of the need to be very careful not to assume guilt from association . There must be more than friendship or consorting with those who are believed to be involved in international terrorism to justify a reasonable suspicion that the Appellant is himself involved in those activities or is at least knowingly supporting or assisting them . We bear in mind [ his solicitor ’s ] concerns that what has happened here is an attempt to resurrect the prosecution with nothing to add from his activities since . Detention must be regarded as a last resort and so can not be justified on the basis of association alone and in any event the guilt of the associates has never been established . ...

Nonetheless , continued association with those who are suspected of being involved in international terrorism with links to ORG in the light of the reasonable suspicion that the Appellant was himself actively involved in terrorist activities for the ORG is a matter which can properly be taken into account . The GPE , which broke away from the ORG , has links to ORG and the Appellant has continued to associate with those who took to the GPE rather than the PERSON . We are in fact satisfied that not only was the Appellant actively involved initially with the ORG and then with the LOC but also that he provided false documentation for their members and for the GPE in GPE as is alleged in the open statement . But we accept that his activities in DATE justify the use of the expression that he had been maintaining a low profile , and we make that observation having regard to both open and closed material . Nonetheless , a low profile does not mean that he is not properly to be regarded as an international terrorist within the meaning of section CARDINAL . An assessment has to be made of what he may do in the light of what he has done and the fact that he has shown willingness and the ability to give assistance and support in the past and continues the associations and to provide some help ( e.g. the use of his van ) is highly relevant .

We have not found this aspect of the Appellant ’s case at all easy . We have given full weight to all [ his solicitor ’s ] submissions which were so persuasively put before us but in the end have reached the view that , looking at the evidence as a whole , the decision to issue a certificate was not wrong . Accordingly , we would not have allowed the appeal on the facts . ”

The fifth applicant was born in GPE in DATE . In his statement to ORG he claimed to have developed polio as a child which left him with a permanently weak and paralysed right leg . He was arrested and tortured by the NORP government in DATE , whereupon he left GPE for GPE . In DATE he moved to GPE and travelled to GPE on several occasions . In DATE he entered GPE and claimed asylum , alleging in the course of that claim that his leg had been injured by a shell in GPE in DATE . His asylum claim was refused and his appeal against the refusal was dismissed in DATE . The applicant married a NORP citizen and had a child with her .

He was certified by the Secretary of ORG under section CARDINAL of the DATE Act on DATE and detained on DATE . In its judgment of CARDINAL DATE , dismissing the fifth applicant ’s appeal against certification , ORG observed :

“ The open statements provided to justify the certification do not refer to a great deal of source material and so consist mainly of assertions . As with most of these appeals , the main part of the evidence lies in closed material and so , as we are well aware , the Appellants have been at a disadvantage in that they have not been able to deal with what might be taken to be incriminating evidence . The Special Advocates have been able to challenge certain matters and sometimes to good effect . That indeed was the case in relation to a camp in GPE attended by a number of those , including the Appellant , of interest to ORG . ...

The case against the Appellant is that he was a member of the ORG and , since its split from the ORG , of the LOC . He is associated with a number of leading extremists , some of whom are also members of or associated with the LOC , and has provided active support in the form of the supply of false documents and facilitating young NORP from GPE to travel to GPE to train for jihad . He is regarded as having undertaken an important role in the support activities undertaken on behalf of the LOC and other NORP extremists in GPE and outside it . All this the Appellant denies and in his statement he gives innocent explanations for the associations alleged against him . He was indeed friendly with in particular other NORP in GPE and , so far as [ the fourth applicant ] was concerned , the families were close because , apart from anything else , their respective wives were LANGUAGE . He attended [ the eighth applicant ’s ] mosque . He was an impressive preacher and the Appellant says he listened but was never involved . Indeed he did not know [ the eighth applicant ] except through NORP relief , which the Appellant and many hundreds of other NORP supported , and he had never spoken to him on the telephone . He had on occasions approached [ the eighth applicant ] at DATE prayers at the mosque if he wanted guidance on some social problem . ”

ORG referred to “ open ” surveillance reports which showed the applicant to have been in contact with other alleged members of ORG and GPE , including at a camp in GPE in DATE . Further “ open ” evidence concerned his “ unhelpful ” and “ not altogether truthful ” responses to questioning by officers of ORG in DATE and DATE . ORG continued :

“ ORG is placed on various articles found in his house when he was arrested . These include a copy of the fatwa issued by PERSON . The Appellant says he had never seen it and could not explain its presence . A ORG communiqué was , he says , probably one handed out at the mosque . Analysis of the hard drive of his computer showed it had visited an Internet site that specialised in GPE military technology . This was not something which could be relevant to the Appellant ’s studies . And a hand - drawn diagram of a missile rocket he has not seen before . It might , he thinks , have been in a book about ORG he had bought second hand from the mosque .

We note the denials , but we have to consider all the evidence . As will be clear from this judgment , we have reason to doubt some of the Appellant ’s assertions . But the closed material confirms our view that there is indeed reasonable suspicion that the Appellant is an international terrorist within the meaning of LAW and reasonable belief that his presence in GPE is a risk to national security . We have no doubt that he has been involved in the production of false documentation , has facilitated young NORP to travel to GPE to train for jihad and has actively assisted terrorists who have links with ORG . We are satisfied too that he has actively assisted the GPE . We have no hesitation in dismissing his appeal . ”

On DATE , because of concerns about his health , the fifth applicant was released from prison on bail on strict conditions , which amounted to house arrest with further controls . In its review judgment of DATE , ORG held :

“ ... in granting bail , [ ORG ] did not revise its view as to the strength of the grounds for believing he was an international terrorist and a threat to national security . The threat could be managed proportionately in his case in view of his severe mental illness . That however is no reason to cancel the certificate . There might be circumstances in which he breaches the terms of his bail or for other reasons it was necessary to revoke it . The need for the certificate to continue must depend on whether the terms of the statute and of the derogation continue to be met .

A number of his contacts remain at large including some who are regarded as actively involved in terrorist planning . There is nothing to suggest that his mental illness has diminished his commitment to the extremist NORP cause ; he has the experience and capacity to involve himself once more in extremist activity . The bail restraints on him are essential ; those are imposed pursuant to his certification and the ORG dismissal of his appeal against it . The certificate is properly maintained . ”

On DATE , ORG again reviewed the case and decided that the certificate should be maintained .

The sixth applicant was born in GPE in DATE and was resident in GPE from DATE . The Secretary of ORG issued a certificate against him on DATE and he was taken into detention on DATE .

In its judgment of DATE , ORG observed as follows :

“ Although we have to make our decision on the basis both of the open and of the closed material , it is important to indicate the case against [ the sixth applicant ] as it has been set out by the Secretary of ORG in open material , because that is the case that [ the sixth applicant ] knows that he has to meet . In assessing his statement and the other evidence and arguments submitted on his behalf , we remind ourselves always that he is not aware of the Secretary of ORG ’s closed material , but nevertheless that he is not operating entirely in a vacuum because of the open allegations ; and we may test the Appellant ’s own case by the way he deals with those allegations .

The Secretary of ORG ’s case against [ the sixth applicant ] is summarised as follows :

( CARDINAL ) he belongs to and/or is a member of the LAW , and previously was involved with the ORG ;

( CARDINAL ) he has supported and assisted the LAW ( and previously the ORG ) through his involvement in credit card fraud which is a main source of income in GPE for the GSPC ;

( CARDINAL ) from DATE , [ the sixth applicant ] took on an important role in procuring telecommunications equipment for the GPE and the provision of logistical support for satellite phones by way of purchase and allocation of airtimes for those phones ;

( CARDINAL ) he has also played an important part in procuring telecommunications equipment and other equipment for the GPE fighting in GPE – that is to say the faction which until DATE was under the command of PERSON . ”

ORG then reviewed the open evidence before it regarding the purchase by GPE , assisted by the sixth and seventh applicants , of a number of satellite telephones and other telecommunications equipment to the value of MONEY and the nature and extent of the connection between the sixth and seventh applicants . It concluded :

“ In the circumstances we have set out , it appears to us that the Secretary of ORG has ample ground for suspicion that [ the sixth applicant ’s ] procurement activities were directed to the support of the extremist NORP faction fighting in GPE . That support arises from [ the sixth applicant ’s ] connections with and support of the GPE . We emphasise , as is the case with other appeals as well , that it is the accumulation of factors , each lending support to the others rather than undermining other points , providing colour and context for the activities seen as a whole which is persuasive ; it would be wrong to take a piece in isolation , thereby to diminish its significance and to miss the larger picture . The generic judgment supports these conclusions . These are activities falling centrally within the derogation . [ The sixth applicant ] has provided only implausible denials and has failed to offer credible alternative explanations . That is sufficient to determine his appeal , without making any further reference to the Secretary of ORG ’s other allegations which , as was acknowledged in the open statement and in open evidence before [ ORG ] , can be properly sustained only by examination of the closed material . ”

ORG reviewed the case on DATE and on CARDINAL DATE and , on each occasion , decided that there were still grounds for maintaining the certificate .

The seventh applicant was born in GPE in DATE and apparently entered GPE using false NORP identity papers in or DATE . On DATE he was convicted of a number of driving offences and sentenced to CARDINAL months’ imprisonment . He was certified by the Secretary of ORG on DATE and taken into detention pursuant to the certificate as soon as his prison sentence ended on DATE .

In its judgment of DATE , ORG noted that the allegations against the seventh applicant were that he had been a member of GPE since DATE or DATE , and before that a member of ORG ; that his contacts with leading PERSON members in GPE showed that he was a trusted member of the organisation ; and that he had been involved with GPE and the sixth applicant in purchasing telecommunications equipment for use by extremists in GPE and GPE . It further noted that :

“ [ The seventh applicant ] did not give evidence before [ ORG ] and , indeed , chose not to attend the hearing of his appeal . His statement , which we have of course read , is in the most general terms , and , perhaps not surprisingly , [ his counsel ’s ] submissions , both oral and written , were similarly general . [ The seventh applicant ’s ] approach to the present proceedings of themselves and the fact that he did not give oral evidence or make any detailed written statement are not matters to be put in the scale against him . We well understand the difficulty that Appellants have in circumstances where the allegations against them are only summarised and where much of the evidence on which those allegations are based can not , for reasons of national security , be communicated to the Appellants themselves . However , [ the seventh applicant ] is in the best position to know what his activities and motives have been in the relevant period . Nothing prevents him from giving a full description and account of those activities if he wishes to do so . The fact that he has chosen to provide no detailed account of his activities means that he has provided no material to counter the evidence and arguments of others . ”

ORG concluded that the open and closed material supported the allegations against the seventh applicant and it dismissed his appeal .

In its review judgments of DATE and DATE , ORG decided that the certificate should be maintained .

The eighth applicant is a NORP national , born in GPE in DATE . He arrived in GPE on DATE and claimed asylum . He was recognised as a refugee and granted leave to remain until DATE . On DATE he applied for indefinite leave to remain but the application had not been determined at the time of the coming into force of the CARDINAL Act .

The eighth applicant was convicted in absentia in GPE for his involvement in terrorist attacks there and in relation to a plot to plant bombs to coincide with DATE . He was investigated in DATE by anti - terrorism police officers in connection with a plot to cause explosions at the Strasbourg Christmas Market in DATE , but no charges were brought against him . When the DATE Act was passed he went into hiding . He was arrested on DATE and was immediately made the subject of a section CARDINAL certificate and taken into detention . On DATE , a deportation order was made against him .

In its judgment of DATE , dismissing the eighth applicant ’s appeal against certification , ORG observed as follows :

“ [ The eighth applicant ’s counsel ] , on instructions from the Appellant , informed us that his client had chosen not to attend the hearing or to participate in any way . He had read the decisions relating to the Appellants who had been certified when the DATE Act came into force and the generic judgment and so felt certain that the result of his appeal was a foregone conclusion . There had been many references to his role in the other appeals and some had been certified and detained , at least in part , on the basis that they associated with him . Since that association was regarded as sufficient to justify their continued detention , he considered that the decision on his appeal had , in effect , already been taken . He had chosen not to play any part precisely because he has no faith in the ability of the system to get at the truth . He considered that the ORG procedure had deliberately been established to avoid open and public scrutiny of the respondent ’s case , which deprived individuals of a fair opportunity to challenge the case against them .

Having said that , [ the eighth applicant ’s counsel ] made it clear that the appeal was not being withdrawn . It was accordingly necessary for us to consider it and to take into account the statement made by the Appellant . [ His counsel ] emphasised a number of matters which , he suggested , should be regarded as favourable to the Appellant ’s contention that he was not and never had been involved in terrorism within the meaning of the DATE Act . Furthermore , the allegations showed that a distorted and over - simplified view was being taken by the security services of the Appellant ’s activities and his role as a respected teacher and believer in the rights of NORP communication throughout the world .

We should make it clear that we have considered the case against the Appellant on its merits . We have not been influenced by any findings made in other appeals or the generic judgments . CARDINAL of the reasons why this judgment has taken a long time to be prepared was the need for us to read through and consider the evidence , both open and closed , that has been put before us . There is much more of it than in most of the other appeals . That is a reflection of the fact that the Appellant has been associated with and had dealings with many of the others who have been certified and with individuals and groups themselves linked to ORG . We see no reason to dissent from the views expressed in the generic judgment of the significance of the various individuals and groups referred to in it . But that does not mean we have therefore automatically accepted its views . We draw attention to the fact that the panel which produced the generic judgment was not the same constitution as this panel and that such input as there was by the chairman of this panel to the generic judgment was limited to issues of law . We have considered the case against the Appellant on the material put before us in this appeal . ...

When it came to the closed session , the Special Advocates informed us that after careful consideration they had decided that it would not be in the Appellant ’s interests for them to take any part in the proceedings . We were very concerned at this , taking the view that the decision was wrong . The appeal was still being pursued and the Appellant did not know what was relied on against him in the closed material . We were unable to understand how in the circumstances it could not be in his interests for the Special Advocates , at their discretion , to elicit or identify matters favourable to the Appellant and to make submissions to us to seek to persuade us that evidence was in fact unreliable or did not justify the assessment made . When we asked [ one of the two Special Advocates appointed on behalf of the eighth applicant ] to tell us why he had decided as he had he told us that he could not do so since to do so would not be in the Appellant ’s interest . We adjourned to enable the Special Advocates to seek to discover from the Appellant through his representatives whether he did wish them to do what they could on his behalf and we also contacted ORG who had appointed the Special Advocates to seek her help in trying to persuade them to assist us . The Appellant ’s representatives indicated that they had nothing to say on the subject and ORG took the view that it would be wrong for her to intervene in any way . Our further attempts to persuade the Special Advocates to change their minds were unsuccessful and since we could not compel them to act in any particular way we had to proceed without them . [ Counsel for the Secretary of ORG ] , at our request , identified various matters which might be regarded as possibly exculpatory and we ourselves raised other matters in the course of the closed hearing .

We are conscious that the absence of a Special Advocate makes our task even more difficult than it normally is and that the potential unfairness to the Appellant is the more apparent . We do not doubt that the Special Advocates believed they had good reasons for adopting the stance that they did and we are equally sure that they thought long and hard about whether they were doing the right thing . But we are bound to record our clear view that they were wrong and that there could be no reason for not continuing to take part in an appeal that was still being pursued . ... As it happens , the evidence in this case against the Appellant is so strong that no Special Advocates , however brilliant , could have persuaded us that reasonable suspicion had not been established so that the certification was not justified . Thus the absence of Special Advocates has not prejudiced the Appellant . ... ”

ORG then summarised the open case against the applicant , which was that he had associated with and acted as spiritual adviser to a number of individuals and groups linked with ORG . He held extreme and fundamentalist views and had been reported as having , in his speeches at a GPE mosque , given his blessing to the killing of NORP and NORP , wherever they were . ORG concluded :

“ We are satisfied that the Appellant ’s activities went far beyond the mere giving of advice . He has certainly given the support of the Koran to those who wish to further the aims of ORG and to engage in suicide bombing and other murderous activities . The evidence is sufficient to show that he has been concerned in the instigation of acts of international terrorism . But spiritual advice given in the knowledge of the purposes for which and the uses to which it is to be put provides assistance within the meaning of section ORG ) of the DATE Act .

There are a large number of allegations made . We see no point in dealing with them seriatim . We have indicated why we have formed the view that the case made against the Appellant is established . Indeed , were the standard higher than reasonable suspicion , we would have had no doubt that it was established . The Appellant was heavily involved , indeed was at the centre in GPE of terrorist activities associated with ORG . He is a truly dangerous individual and these appeals are dismissed . ”

The ninth applicant is NORP , born in DATE . In DATE he left GPE for GPE , where he taught LANGUAGE in a refugee camp . He claimed asylum in GPE in DATE . In DATE he was granted leave to remain for DATE and in DATE he was granted indefinite leave to remain , on the basis that he was to be regarded as a refugee . On CARDINAL occasions , the last in DATE , the applicant was arrested and released without charge . The first CARDINAL arrests related to credit card fraud . The arrest in DATE related to alleged terrorist activities and the applicant was subsequently paid compensation by the police for false arrest .

The ninth applicant was certified by the Secretary of ORG and made the subject of a deportation order on DATE . He was detained on DATE . According to the evidence of one of the witnesses for the Secretary of ORG , he was not certified , with the other applicants , in DATE because CARDINAL of his files had been lost .

In its judgment of DATE , ORG noted that the allegations against the ninth applicant were that he was an active supporter of GPE and had raised considerable sums of money for it through fraud . There was evidence that the applicant had in the past been found , by customs officers , attempting to enter GPE by ferry with large amounts of cash and that he had close links with others who had been convicted of credit card fraud . ORG held that evidence of involvement in fraud did not establish involvement in terrorism . However , it noted that the applicant had been present at a camp in GPE in the company of the fifth applicant and a number of others suspected of being GPE supporters and that a telephone bill had been found at his house at the time of his arrest in the name of ORG , who had been arrested in GPE in DATE due to his alleged links with ORG . The applicant had given evidence but had not been a convincing witness and had not given a credible explanation for the foregoing . The closed evidence supported the Secretary of ORG ’s allegations and ORG therefore dismissed the applicant ’s appeal against certification .

In its review judgments of DATE and DATE , ORG held that the certificate was properly maintained .

The tenth applicant is an NORP national . Following a bomb explosion in GPE , his left hand was amputated at the wrist and his right arm was amputated below the elbow . In DATE he travelled to GPE , via ORG and GPE , and claimed asylum . His claim was refused on DATE . He was then in custody , having been arrested on DATE and charged with possession of articles for suspected terrorist purposes , conspiracy to defraud and conspiracy to make false instruments . At the time of his arrest he was found to have in his possession DATE blank NORP driving licences , identity cards and passports , a credit card reader , laminators and an embossing machine . The charges were not , however , proceeded with and he was released on DATE .

On DATE the Secretary of ORG issued a certificate against him under section CARDINAL of the CARDINAL Act and he was taken into detention . A deportation order was made against him on DATE .

In its judgment of DATE , ORG noted that the essence of the case against the tenth applicant was that since his arrival in GPE he had been closely associated with a network of extremists formerly led by GPE ( see paragraph QUANTITY above ) . In particular , it was alleged that he had provided logistical support in the form of false documentation and money raised through credit card fraud . He had spent a lot of time at FAC , a known centre of NORP extremism , and was alleged to have attended a meeting there in DATE at which threats were made against the GCARDINAL summit in Genoa .

The applicant submitted a written statement on DATE in which he denied the allegations against him . He did not , however , participate in the hearing of his appeal , as ORG explained in its judgment :

“ He was , said [ his counsel ] , a genuine refugee , a member of no organisation or group and not involved in terrorism or in advocating terrorism . He had no knowledge of any planned terrorist attacks and could not understand why the accusations had been made against him . He had seen none of the underlying material and had no means of challenging it . In effect , he could do no more than assert that it could not justify the conclusion that he was an international terrorist within the meaning of the LAW since he was not . He had had read to him the decisions of [ ORG ] in the previous appeals . Given the relevance which was placed on the closed material and the statutory test applicable , he felt that the result was a foregone conclusion . He did not wish in participating in the appeal to give an impression which was false that he could deal with the matters which were being relied on against him . He had no confidence in the proceedings . Accordingly he would take no active part in them beyond the statement which [ his counsel ] made on his behalf .

He did not withdraw his appeal . While we appreciate the handicap under which he and indeed all the Appellants labour , we wish to make it clear that no appeal is a foregone conclusion . We have to and we do consider the evidence put before us , whether open or closed , with care because we recognise that the result is detention for an unspecified period without trial . While we recognise that the Special Advocate has a difficult task when he has and can obtain no instructions on closed material , he is able to test evidence from ORG and to draw our attention to material which assists the Appellant ’s case . ”

ORG found that there was ample evidence to support the view that the applicant was involved in fraudulent activities . The evidence before it , most of it closed , was sufficient to establish that he was doing it to raise money for terrorist causes and to support those involved in terrorism . It therefore dismissed the appeal against certification .

ORG reached similar decisions in its review judgments of CARDINAL DATE and DATE . In the latter judgment , it noted that although the applicant had been transferred to ORG because of mental health problems , that made no difference to the assessment of the risk to national security which he would pose if released .

The eleventh applicant is an NORP national . He entered GPE in DATE , using a false NORP identity card , and claimed asylum DATE . While his claim was pending , in DATE , he travelled to GPE using a false NORP passport and was deported back to GPE , where he was informed that his travel outside GPE had terminated his asylum claim . He made a second claim for asylum , which was refused on DATE . The applicant absconded . He was arrested on DATE and held in an immigration detention centre , from which he absconded in DATE . He was rearrested on DATE and detained at ORG under immigration law provisions .

On DATE the Secretary of ORG certified him as an international terrorist under LAW and made a deportation order against him on grounds of national security .

In its judgment of DATE , dismissing the eleventh applicant ’s appeal against certification , ORG set out the open case against him . It was alleged that he was an established and senior member of ORG group ( see paragraph CARDINAL above ) . In DATE he had attempted to travel to GPE and , when arrested by the NORP police , he had been found in possession of telephone numbers associated with a senior member of the GPE group and a named member of GPE , who was known to be involved in fund - raising for ORG . He was alleged to have provided money and logistical support to a NORP extremist NORP network based in GPE and GPE , with links to ORG , and to have assisted members of the GPE group in travelling to GPE , GPE and GPE . He had lived at FAC for DATE in DATE . He was very security - conscious and during a trip to GPE in DATE he had taken measures to avoid being followed . When he was arrested in DATE he was found in possession of a false NORP passport bearing the photograph of a senior member of ORG group . He was alleged to have been heavily involved in the supply of false documents and the fraudulent use of cheque books and credit cards .

DATE . The applicant filed a written statement in which he denied being an international terrorist . He admitted that he had travelled to GPE in DATE and that he had attempted to go to GPE in DATE , but claimed that his interest in these countries was no more than that shown by many devout NORP . He refused to participate in the hearing of his appeal or to be represented by a lawyer , in protest at the fundamental unfairness of the procedure . In view of the applicant ’s position , the special advocates decided that his interests would best be served if they refrained from making submissions on his behalf or asking questions of the witnesses in the closed session .

In dismissing the applicant ’s appeal , ORG held as follows :

“ We recognise the difficulties faced by an Appellant who only sees only the open material and can understand [ DATE applicant ’s ] perception that the procedures are unfair . However , each case will turn upon its own individual facts , and it would be wrong to give the impression , which [ his solicitor ] sought to do , that this particular Appellant had been placed in a position where he was prevented by reason of the procedures under the LAW from mounting an effective defence in response to the case made against him .

We have summarised the information made available to [ the eleventh applicant ] at the various stages of the procedure ... and [ his ] response to this information in his written statement . While some of the assessments in the open material can fairly be described as general assertions unsupported by any documentary evidence , in response to which [ the eleventh applicant ] would not have been able to give any more than an equally general denial , it is clear that in respect of other assessments [ he ] was provided with a great deal of detailed information : names , dates , places and supporting documents .

[ The eleventh applicant ] is in the best position to give an account of his whereabouts and activities since he first claimed asylum in DATE . His written statement is significant not so much for what it says , as for what it does not say . To take CARDINAL example : the visit to GPE and the photo - booth where [ the eleventh applicant ] says that the Respondent ’s specific assertion is ‘ completely wrong’ ... [ The eleventh applicant ] has not denied that he went to GPE . He knows who accompanied him and why they went there . He has not explained why they went there , nor has he identified his companion , despite having been provided with the photographs taken during the surveillance operation . ... ”

ORG continued by noting the inconsistencies in the applicant ’s various accounts of his trips to GPE , GPE and GPE and his failure to deal with the Secretary of ORG ’s allegations that he had associated with various members of the GPE group , identified by name . ORG continued :

“ The matters referred to ... are not an exhaustive list , merely the most obvious examples of the way in which [ DATE applicant ’s ] written statement fails to deal with the open case made against him . Given the unsatisfactory nature of the statement we do not feel able to give any significant weight to the general denials contained within it ... We have dealt with these matters in some detail because they are useful illustrations of the extent to which [ the eleventh applicant ] would have been able to answer the case against him , if he had chosen to do so . While we do not draw any adverse inference from [ his ] failure to give evidence , or otherwise participate in the hearing of his appeal , we do have to determine his appeal on the evidence and we are left with the position that there has been no effective challenge by way of evidence , cross - examination or submission to the open material produced by the Respondent .

The standard of proof prescribed by section CARDINAL(CARDINAL ) of the DATE Act is relatively low : are there reasonable grounds for belief or suspicion . As explained above , we are satisfied that this low threshold is easily crossed on the basis of the open material alone . If the totality of the material , both open and closed , is considered , we have no doubt that [ the eleventh applicant ] was a senior , and active , member of the GPE group as described in the Respondent ’s evidence . ”

The detained applicants were all initially detained at ORG in GPE . The sixth applicant was transferred to FAC and the first , seventh and tenth applicants were transferred to ORG .

They were held in prison under the same regime as other standard - risk Category A prisoners , which was considered the appropriate security classification on the basis of the risk they posed . They were allowed visitors , once those visitors had been security - cleared , and could associate with other prisoners , make telephone calls and write and receive letters . They had access to an imam and to their legal representatives . They had the same level of access to health care , exercise , education and work as any other prisoner of their security ranking .

Following a recommendation of the inspector appointed under LAW to review the detention regime , the Government created a ORG at FAC to house the DATE Act detainees . The ORG , which was refurbished in consultation with the detained applicants and their representatives and had a specially selected and trained staff , would have allowed for a more relaxed regime , including more out - of - cell time . The applicants , however , chose not to move to the ORG , a decision which the inspector found regrettable .

The first applicant , who alleged a history of ill - treatment in NORP detention and who had first been treated for depression in DATE , suffered a severe deterioration in his mental health while detained in FAC . He was transferred to ORG in DATE .

The seventh applicant reported a family history of psychiatric disorder and had experienced depression as an adolescent . He claimed to suffer increasingly throughout his detention from depression , paranoia and auditory hallucinations . He attempted suicide in DATE and was transferred to ORG on DATE .

The tenth applicant , a double amputee , claimed to have been detained and tortured in GPE . He suffered a deterioration in his physical and mental health in FAC . He went on hunger strike in DATE and refused to use the prostheses which had been issued to him or to cooperate with his nurses . Early in DATE , the prison authorities withdrew his nursing care . His legal representatives applied for judicial review of this decision and in DATE nursing care was resumed following the order of ORG . On DATE the tenth applicant was transferred to ORG .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited the detained applicants in DATE and again in DATE , and made a number of criticisms of the conditions in which the detained applicants were held . The Government rejected these criticisms ( see paragraphs QUANTITY - CARDINAL below ) .

DATE . In DATE , at the request of the applicants’ legal representatives , a group of CARDINAL consultant psychiatrists prepared ORG on the detained applicants , which concluded :

“ The detainees originate from countries where mental illness is highly stigmatised . In addition , for devout NORP there is a direct prohibition against suicide . This is particularly significant given the number who have attempted or are considering suicide . All of the detainees have serious mental health problems which are the direct result of , or are seriously exacerbated by , the indefinite nature of the detention . The mental health problems predominantly take the form of major depressive disorder and anxiety . A number of detainees have developed psychotic symptoms , as they have deteriorated . Some detainees are also experiencing PTSD [ post - traumatic stress disorder ] either as a result of their pre - migration trauma , the circumstances around their arrest and imprisonment or the interaction between the CARDINAL .

Continued deterioration in their mental health is affected also by the nature of , and their mistrust in , the prison regime and the appeals process as well as the underlying and central factor of the indefinite nature of detention . The prison health - care system is unable to meet their health needs adequately . There is a failure to perceive self - harm and distressed behaviour as part of the clinical condition rather than merely being seen as manipulation . There is inadequate provision for complex physical health problems .

Their mental health problems are unlikely to resolve while they are maintained in their current situation and given the evidence of repeated interviews it is highly likely that they will continue to deteriorate while in detention .

The problems described by the detainees are remarkably similar to the problems identified in the literature examining the impact of immigration detention . This literature describes very high levels of depression and anxiety and eloquently makes the point that the length of time in detention relates directly to the severity of symptoms and that it is detention per se which is causing these problems to deteriorate . ”

For the purposes of the present proceedings , the ORG requested a Consultant Psychiatrist , PERSON , to comment on the above ORG . PERSON was critical of the methodology and conclusions of the authors of ORG . In particular , he wrote ( references to other reports omitted ) :

“ I would comment that I find many of the assertions made do not bear close inspection . For example in the case of [ the first applicant ] it was my finding after a careful and detailed assessment that his mental state after imprisonment and then detention in ORG was , overall , no worse and arguably no better than it had been before he was arrested . Nor do his records suggest initial improvement followed by deterioration in ORG . I found he deteriorated in ORG [ Prison ] because he chose to go on hunger strike and that he had a fluctuating course in ORG despite agreeing to eat , his histrionic behaviour in both places being essentially the same . In his case I found the diagnosis to be CARDINAL of personality disorder , diagnoses of major depressive disorder , psychosis and PTSD not being sustainable . Moreover , it was my finding that his frequent self - harming was indeed manipulative .

I am not alone in finding the diagnoses claimed by the authors of this report to be mistaken and have drawn attention in my own report to the scepticism of some others who have reported on [ the first and seventh applicants ] . It is not the case therefore that there is the consensus of opinion claimed in the report and I note that in both the cases I assessed [ the first and seventh applicants ] , their so - called psychotic symptoms claimed by some reporters and said not to be present before they were detained , were in fact present before they were arrested .

An issue I find to be of the greatest concern relates to the tacit acceptance of information gained by self - report . It appears to be accepted by the authors of the report , for example , that CARDINAL of the detainees had been the victims of detention and torture and all felt themselves seriously threatened prior to migration . Nowhere have I seen any evidence to corroborate these claims or indeed any attempt to check them . As it is the case that immigrants and asylum - seekers need to justify their attempts to gain entry to another country , is it not possible or even probable that some may not always be entirely truthful in what they claim about their past experiences or their current symptoms ? Where alleged terrorists are concerned it should be borne in mind that they have denied such allegations in spite of the open and closed evidence against them , which has been considered at the highest level . Surely this should raise doubts about their truthfulness ? ”

On DATE , ORG decided that it should , in principle , grant bail to the fifth applicant . The Secretary of ORG attempted to appeal against this decision but was informed by ORG in an interim decision dated DATE that it had no jurisdiction to entertain an appeal .

ORG explained its reasons for granting bail in greater detail in a judgment dated DATE . It held that under LAW it had a power to grant bail only in an exceptional case , where it was satisfied that if bail were not granted the detainee ’s mental or physical condition would deteriorate to such an extent as to render his continued detention a breach of LAW of inhumanity , or LAW grounds of disproportionality .

SIAC noted that there had been concerns about the fifth applicant ’s mental health among prison staff from DATE , although these concerns had not been communicated to his legal representatives . In DATE he had suffered a serious relapse into severe depression with psychotic symptoms , including auditory hallucinations and suicide ideation . A number of psychologists and psychiatrists had examined him , at the request of his legal representatives and at the initiative of ORG , and had agreed that he was seriously ill and that his mental health would be likely to improve if he were allowed to go home . ORG concluded :

“ We do not think that the threshold has been crossed so that there is a breach of [ the fifth applicant ’s ] human rights . The jurisprudence of the [ ORG Rights ] emphasises the high threshold which must be crossed and that detention is unlikely to be regarded as disproportionate unless it at least verges on treatment which would constitute a breach of Article CARDINAL . But we are satisfied that , if he were not released , there would be such a breach . To permit someone to reach a state whereby he requires treatment in a special hospital or continuous care and attention to ensure he does not harm himself can constitute a breach of Article CARDINAL , unless perhaps there is no possible alternative to detention , and probably of Article CARDINAL . As we have said , we do not have to wait until that situation exists . Provided that we are persuaded , as we are , that the conditions we impose are sufficient to minimise the risk to the security of the ORG if [ the fifth applicant ] is released , we can act as we have .

We must emphasise that the grant of bail is exceptional . We are only doing so because the medical evidence is all CARDINAL way and the detention has caused the mental illness which will get worse . ... ”

The fifth applicant was , therefore , released on bail on DATE on conditions amounting to house arrest . He was not permitted to leave his home address and had to wear an electronic tag at all times . He had no Internet access and a telephone link to ORG only . He was required to report by telephone to the ORG CARDINAL times a day and allow its agents access to his home at any time . He was not permitted contact with any person other than his wife and child , legal representative and a ORG - approved doctor or see any visitor except with prior ORG approval .

The declaration of incompatibility made by ORG on DATE , in common with all such declarations , was not binding on the parties to the litigation ( see paragraph CARDINAL below ) . The applicants remained in detention , except for the second and fourth applicants who had elected to leave GPE and the fifth applicant who had been released on bail on conditions amounting to house arrest . Moreover , none of the applicants was entitled , under domestic law , to compensation in respect of their detention . The applicants , therefore , lodged their application to the ORG on DATE .

At DATE , the Government announced their intention to repeal Part DATE CARDINAL Act and replace it with a regime of control orders , which would impose various restrictions on individuals , regardless of nationality , reasonably suspected of being involved in terrorism .

Those applicants who remained in detention were released on DATE and immediately made subject to control orders under LAW DATE , which came into effect on DATE .

The Government withdrew the derogation notice on DATE .

On DATE , following negotiations commenced towards DATE to seek from the NORP and NORP governments assurances that the applicants would not be ill - treated if returned , the ORG served notices of intention to deport on DATE applicants . These applicants were taken into immigration custody pending removal to GPE ( DATE applicants ) and PERSON ( the eighth applicant ) . On DATE ORG ruled that the eighth applicant could not lawfully be extradited to GPE , because it was likely that evidence which had been obtained by torture could be used against him there at trial , in flagrant violation of his right to a fair trial . At the date of adoption of the present judgment , the case was pending before ORG .

Under section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW ) the Secretary of ORG could make a deportation order against a non - national , on the ground that the deportation would be conducive to the public good , for reasons of national security , inter alia . A person who was the subject of a deportation order could be detained pending deportation ( LAW , Schedule CARDINAL , paragraph CARDINAL ) . However , it was held in NORP v. Governor of ORG , ex parte ORG PERSON [ DATE ] CARDINAL WLR CARDINAL that the power to detain under the above provision was limited to such time as was reasonable to enable the process of deportation to be carried out . Detention was not , therefore , permissible under LAW where deportation was known to be impossible , whether because there was no country willing to take the person in question or because there would be a risk of torture or other serious ill - treatment to the proposed deportee in his or her country of origin .

In DATE ORG enacted LAW . As Lord PERSON noted in his judgment in the present case , “ this was a substantial measure , with CARDINAL sections and CARDINAL Schedules , intended to overhaul , modernise and strengthen the law relating to the growing problem of terrorism ” . “ Terrorism ” was defined , in CARDINAL of the LAW , as :

“ ... the use or threat of action where DATE

( a ) the action falls within subsection ( CARDINAL ) ;

( b ) the use or threat is designed to influence the government or to intimidate the public or a section of the public ; and

( c ) the use or threat is made for the purpose of advancing a political , religious or ideological cause .

( CARDINAL ) ORG falls within this subsection if it –

( a ) involves serious violence against a person ;

( b ) involves serious damage to property ;

( c ) endangers a person ’s life , other than that of the person committing the action ;

( d ) NORP creates a serious risk to the health or safety of the public or a section of the public ; or

( e ) is designed seriously to interfere with or seriously to disrupt an electronic system .

( CARDINAL ) The use or threat of action falling within subsection ( CARDINAL ) which involves the use of firearms or explosives is terrorism whether or not subsection ( CARDINAL ) is satisfied .

( CARDINAL ) In this section –

( a ) ’action’ includes action outside GPE ;

( b ) a reference to any person or to property is a reference to any person , or to property , wherever situated ;

( c ) a reference to the public includes a reference to the public of a country other than GPE ; and

( d ) ’the government’ means the government of GPE , of a part of GPE or of a country other than GPE .

( CARDINAL ) In this LAW a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation . ”

For the purposes of the LAW , an organisation was “ proscribed ” if :

“ CARDINAL.(CARDINAL ) ...

( a ) it is listed in Schedule CARDINAL ; or

( b ) it operates under the same name as an organisation listed in that Schedule .

( CARDINAL ) Subsection ( CARDINAL ) shall not apply in relation to an organisation listed in Schedule CARDINAL if its entry is the subject of a note in that Schedule .

( CARDINAL ) NORP The Secretary of ORG may by order –

( a ) add an organisation to Schedule CARDINAL ;

( b ) remove an organisation from that Schedule ;

( c ) NORP amend that Schedule in some other way .

( CARDINAL ) NORP The Secretary of ORG may exercise his power under subsection ( CARDINAL)(a ) in respect of an organisation only if he believes that it is concerned in terrorism .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) an organisation is concerned in terrorism if it –

( a ) commits or participates in acts of terrorism ;

( b ) prepares for terrorism ;

( c ) NORP promotes or encourages terrorism ; or

( d ) is otherwise concerned in terrorism . ”

Part CARDINAL of the Act created offences of membership and support of proscribed organisations ; it created offences of fund - raising , use and possession of terrorist funds , entering into an arrangement for the transfer of terrorist funds , money - laundering and failing to disclose suspect money - laundering . There were a number of further substantive offences in DATE , including offences of weapons training ; directing terrorism ; possession , without reasonable excuse , of items likely to be useful to a person committing or preparing an act of terrorism ; and collection , without reasonable excuse , of information likely to be useful to a person committing or preparing an act of terrorism . By CARDINAL , the LAW had extraterritorial scope , in that a person within the jurisdiction of GPE might be prosecuted for any of the above offences regardless of where the acts in furtherance of those offences were committed .

Part DATE CARDINAL Act ( see paragraph CARDINAL above ) , which was headed “ Immigration and Asylum ” , set out powers which enabled the detention of non - nationals suspected of being international terrorists , even where their deportation was for the time being impossible . The DATE Act provided , so far as material :

“ PART CARDINAL

IMMIGRATION AND ASYLUM

Suspected international terrorists

Suspected international terrorist : certification

( CARDINAL ) NORP The Secretary of ORG may issue a certificate under this section in respect of a person if the Secretary of ORG reasonably DATE

( a ) believes that the person ’s presence in GPE is a risk to national security ; and

( b ) NORP suspects that the person is a terrorist .

( CARDINAL ) In subsection ( CARDINAL ) ‘ ORG means a person who –

( a ) is or has been concerned in the commission , preparation or instigation of acts of international terrorism ;

( b ) is a member of or belongs to an international terrorist group ; or

( c ) has links with an international terrorist group .

( CARDINAL ) ORG group is an international terrorist group for the purposes of subsection ( CARDINAL)(b ) and ( c ) if –

( a ) it is subject to the control or influence of persons outside GPE ; and

( b ) NORP the Secretary of ORG suspects that it is concerned in the commission , preparation or instigation of acts of international terrorism .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) a person has links with an international terrorist group only if he supports or assists it .

( CARDINAL ) In DATE

‘ ORG has the meaning given by CARDINAL of LAW CARDINAL ( c. CARDINAL ) ; and

‘ suspected international ORG means a person certified under subsection ( CARDINAL ) .

( CARDINAL ) Where the Secretary of ORG issues a certificate under subsection ( CARDINAL ) he shall as soon as is reasonably practicable –

( a ) take reasonable steps to notify the person certified ; and

( b ) send a copy of the certificate to ORG .

( CARDINAL ) The Secretary of ORG may revoke a certificate issued under subsection ( CARDINAL ) .

( CARDINAL) A decision of the Secretary of ORG in connection with certification under this section may be questioned in legal proceedings only under LAW or CARDINAL .

( CARDINAL ) An action of the Secretary of ORG taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings DATE

( a ) section DATE or CARDINAL ; or

( b ) section CARDINAL of ORG DATE ( c. CARDINAL ) ( appeal ) .

Deportation , removal , etc .

( CARDINAL ) An action of a kind specified in subsection ( CARDINAL ) may be taken in respect of a suspected international terrorist despite the fact that ( whether temporarily or indefinitely ) the action can not result in his removal from GPE because of –

( a ) a point of law which wholly or partly relates to an international agreement ; or

( b ) a practical consideration ...

( CARDINAL ) The actions mentioned in subsection ( CARDINAL ) are –

( e ) making a deportation order ...

( CARDINAL ) Action of a kind specified in subsection ( CARDINAL ) which has effect in respect of a suspected international terrorist at the time of his certification under LAW shall be treated as taken again ( in reliance on subsection ( CARDINAL ) above ) immediately after certification .

Detention

( CARDINAL ) A suspected international terrorist may be detained under a provision specified in subsection ( CARDINAL ) despite the fact that his removal or departure from GPE is prevented ( whether temporarily or indefinitely ) by –

( b ) a practical consideration ...

( CARDINAL ) The provisions mentioned in subsection ( CARDINAL ) are –

( a ) NORP paragraph CARDINAL of Schedule CARDINAL to LAW DATE ( c. CARDINAL ) ( detention of persons liable to examination or removal ) ; and

( b ) NORP paragraph CARDINAL of Schedule CARDINAL to that Act ( detention pending deportation ) . ”

Part DATE CARDINAL Act included a provision that the legislation would remain in force for DATE only and was subject to an DATE affirmative resolution by both ORG .

ORG was set up in response to the ORG ’s judgment in PERSON v. GPE ( [ ORG ] , DATE , Reports of Judgments and Decisions PERSON ) . It is a tribunal composed of independent judges , with a right of appeal against its decisions on a point of law to ORG and ORG .

By LAW :

“ ( CARDINAL ) A suspected international terrorist may appeal to ORG against his certification under section CARDINAL .

( CARDINAL ) On an appeal [ ORG ] must cancel the certificate if –

( a ) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section ORG ) ( a ) or ( b ) ; or

( b ) if it considers that for some other reason the certificate should not have been issued . ”

ORG was required to carry out a first review to ensure that the certificate was still justified DATE after the issue of the certificate or DATE after the final determination of an appeal against certification , and thereafter at DATE intervals .

Under LAW , any legal challenge to the derogation under LAW had also to be made to ORG .

ORG has a special procedure which enables it to consider not only material which can be made public ( “ open material ” ) but also material which , for reasons of national security , can not ( “ closed material ” ) . Neither the appellant nor his legal adviser can see the closed material . Accordingly , one or more security - cleared counsel , referred to as “ special advocates ” , are appointed by the solicitor - general to act on behalf of each appellant .

In the certification appeals before ORG at issue in the present case , the open statements and evidence concerning each appellant were served first , and the special advocate could discuss this material with the appellant and his legal advisers and take instructions generally . Then the closed material would be disclosed to the judges and to the special advocate , from which point there could be no further contact between the latter and the appellant and/or his representatives , save with the permission of ORG . It was the special advocate ’s role during the closed sessions to make submissions on behalf of the appellant , both as regards procedural matters , such as the need for further disclosure , and as to the substance of the case . In respect of each appeal against certification , ORG issued both an “ open ” and a “ closed ” judgment . The special advocate could see both but the detainee and his representatives could see only the open judgment .

Section CARDINAL of the CARDINAL Act provides that where a court finds that primary legislation is in breach of the Convention , the court may make a declaration of incompatibility . Such a declaration does not affect the validity of the provision in respect of which it is made and is not binding on the parties to the proceedings in which it is made , but special arrangements may be made ( section CARDINAL ) to amend the provision in order to remove the incompatibility ( see , further , Burden v. GPE [ ORG ] , no . MONEY , § § DATE and DATE , ECHR DATE ) .

LAW came into force on DATE , creating a number of offences to extend criminal liability to acts preparatory to the terrorist offences created by LAW . The new offences were encouragement , dissemination of publications , preparation and training . The offences were designed to intervene at an early stage in terrorist activity and thus prevent the development of more serious conduct . They were also designed to be easier to prove .

On DATE ORG gave judgment in Secretary of ORG for ORG ) v. PERSON ( ORG ) ( Appellant ) [ DATE ] UKHL CARDINAL , which concerned a challenge to a non - derogating control order made by the Secretary of ORG under sections CARDINAL and CARDINAL ) of ORG DATE . ORG had to decide , inter alia , whether procedures provided for by CARDINAL of the CARDINAL Act , involving closed hearings and special advocates , were compatible with LAW , given that , in the case of one of the appellants , they had resulted in the case against him being in its essence entirely undisclosed , with no specific allegation of terrorism - related activity being contained in open material .

ORG was unanimous in holding that the proceedings in question determined civil rights and obligations and thus attracted the protection of LAW . On the question of compliance , the majority ( ORG , Lord PERSON and Lord PERSON ) held that although in many cases the special - advocate procedure would provide a sufficient counterbalance where the Secretary of ORG wished to withhold material upon which she wished to rely in order to establish the existence of reasonable grounds for suspecting that the controlee was or had been involved in terrorism - related activity , each case had to be considered individually . ORG put it as follows :

“ CARDINAL . ... It would all depend upon the nature of the case ; what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be ; what steps had been taken to summarise the closed material in support without revealing names , dates or places ; the nature and content of the material withheld ; how effectively the special advocate had been able to challenge it on behalf of the controlled person ; and what difference its disclosure might have made . All of these factors would be relevant to whether the controlled person had been ‘ given a meaningful opportunity to contest the factual ORG for the order .

I do not think that we can be confident that GPE would hold that every control order hearing in which the special - advocate procedure had been used , as contemplated by LAW and Part CARDINAL of ORG , would be sufficient to comply with LAW . However , with strenuous efforts from all , difficult and time - consuming though it will be , it should usually be possible to accord the controlled person ‘ a substantial measure of procedural justice’ . Everyone involved will have to do their best to ensure that the ‘ principles of judicial inquiry’ are complied with to the fullest extent possible . The Secretary of ORG must give as full as possible an explanation of why she considers that the grounds in section CARDINAL(CARDINAL ) are made out . The fuller the explanation given , the fuller the instructions that the special advocates will be able to take from the client before they see the closed material . Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism . There is ample evidence from elsewhere of a tendency to over - claim the need for secrecy in terrorism cases : see PERSON and PERSON , ORG , DATE , PERSON for Justice at ORG . Both judge and special advocates will have stringently to test the material which remains closed . All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client ’s instructions upon it . All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client . Although not expressly provided for in ORG r CARDINAL , the special advocate should be able to call or have called witnesses to rebut the closed material . The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge .

The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing . ... ”

Lord PERSON observed :

“ There is a very wide spectrum of cases in which closed material is relied on by the Secretary of ORG . At CARDINAL extreme there may be cases in which the sole evidence adverse to the controlee is closed material , he can not be told what the evidence is or even given its gist and the special advocate is not in a position to take sufficient instructions to mount an effective challenge to the adverse allegations . At the other end there may be cases where the probative effect of the closed material is very slight or merely corroborative of strong open material and there is no obstacle to presenting a defence . There is an infinite variety of possible cases in between . The balance between the open material and the closed material and the probative nature of each will vary from case to case . The special advocate may be able to discern with sufficient clarity how to deal with the closed material without obtaining direct instructions from the controlee . These are matters for the judge to weigh up and assess in the process of determining whether the controlee has had a fair trial . The assessment is ... fact - specific . The judge who has seen both the open and the closed material and had the benefit of the contribution of the special advocate is in much the best position to make it . I do consider , however , that there is a fairly heavy burden on the controlee to establish that there has been a breach of LAW , for the legitimate public interest in withholding material on valid security grounds should be given due weight . The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of LAW . ”

Lord PERSON held as follows :

“ There may perhaps be cases , wholly exceptional though they are likely to be , where , despite the best efforts of all concerned by way of redaction , anonymisation , and gisting , it will simply be impossible to indicate sufficient of the Secretary of ORG ’s case to enable the suspect to advance any effective challenge to it . Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded ( a difficult but not , I think , impossible conclusion to arrive at ... ) , he would have to conclude that the making or , as the case may be , confirmation of an order would indeed involve significant injustice to the suspect . In short , the suspect in such a case would not have been accorded even ‘ a substantial measure of procedural justice’ ( ORG , [ cited above ] § CARDINAL ) notwithstanding the use of the special - advocate procedure ; ‘ the very essence of [ his ] right [ to a fair hearing ] [ will have been ] impaired’ ( ORG [ and Others ] and PERSON and Others v. [ the ] GPE , [ cited below ] § DATE ) . ”

Lord PERSON did not dissent but employed different reasoning . He held that it was necessary to look at the process as a whole and consider whether a procedure had been used which involved significant injustice to the controlee ; while the use of special advocates could help to enhance the measure of procedural justice available to a controlled person , it could not fully remedy the grave disadvantages of a person not being aware of the case against him and not being able , therefore , effectively to instruct the special advocate .

Lord PERSON , dissenting , held that once the trial judge had decided that disclosure would be contrary to the public interest , the use of special advocates provided sufficient safeguards for the controlee and there would never in these circumstances be a breach of LAW .

NORP In Secretary of ORG for ORG v. ORG [ DATE ] EWCA Civ CARDINAL , ORG ( Sir PERSON and PERSON ; ORG dissenting ) , gave the following guidance , based on the majority opinions in the case of ORG ( see paragraph CARDINAL above ) , regarding compliance with LAW in control order cases using special advocates ( extract from the head - note ) :

“ ( CARDINAL ) In deciding whether the hearing under section CARDINAL(CARDINAL ) of LAW infringed the controlee ’s rights under LAW whether , taken as a whole , the hearing was fundamentally unfair to the controlee , or he was not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing was impaired . More broadly , the question was whether the effect of the process was that the controlee was exposed to significant injustice . ( CARDINAL ) All proper steps ought to be taken to provide the controlee with as much information as possible , both in terms of allegation and evidence , if necessary by appropriate gisting . ( CARDINAL ) Where the full allegations and evidence were not provided for reasons of national security at the outset , the controlee had to be provided with a special advocate . In such a case the following principles applied . ( CARDINAL ) There was no principle that a hearing would be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence . Alternatively , if there was , the irreducible minimum could , depending on the circumstances , be met by disclosure of as little information as was provided in ORG ’s case , which was very little indeed . ( CARDINAL ) Whether a hearing would be unfair depended on all the circumstances , including the nature of the case , what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be , what steps had been taken to summarise the closed material in support without revealing names , dates or places , the nature and content of the material withheld , how effectively the special advocate was able to challenge it on behalf of the controlee and what difference its disclosure would or might make . ( CARDINAL ) In considering whether open disclosure to the controlee would have made a difference to the answer to whether there were reasonable grounds for suspicion that the controlee was or had been involved in terrorist- , if any , information was openly disclosed and how effective the special advocates were able to be . The correct approach to and the weight to be given to any particular factor would depend upon the particular circumstances . ( CARDINAL ) There were no rigid principles . What was fair was essentially a matter for the judge , with whose decision ORG would very rarely interfere . ”

Part DATE CARDINAL Act provided for the creation of a Committee of Privy Counsellors to review its operation . The ORG , under the chairmanship of Lord PERSON , reported in DATE . Having recorded ORG argument that the threat from ORG terrorism was predominantly from foreigners , ORG report drew attention to :

“ ... accumulating evidence that this is not now the case . The NORP suicide bombers who attacked GPE in DATE , PERSON ( ‘ the Shoe Bomber’ ) , and recent arrests suggest that the threat from GPE citizens is real . PERCENT of Terrorism Act DATE suspects in DATE have been NORP . We have been told that , of the people of interest to the authorities because of their suspected involvement in international terrorism , CARDINAL are NORP nationals . ”

Given this evidence , ORG observed that not only were there arguments of principle against having discriminatory provisions , but there were also compelling arguments of limited efficacy in addressing the terrorist threat . ORG therefore called for new legislation to be introduced as a matter of urgency which would deal with the terrorist threat without discrimination on grounds of nationality and which would not require a derogation from LAW .

In DATE the Government published their response to ORG report . It continued to accept that the terrorist threat “ came predominantly , but not exclusively , from foreign nationals ” and made the following observation about ORG suggestion that counter - terrorist measures should apply to all persons within the jurisdiction regardless of nationality :

“ While it would be possible to seek other powers to detain NORP citizens who may be involved in international terrorism it would be a very grave step . The Government believes that such draconian powers would be difficult to justify . Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to support from all parts of the public that is so essential to countering the terrorist threat . ”

The Government also indicated that work was under way to try to establish framework agreements with potential destination countries for the purposes of deportation of terrorist suspects .

ORG has constitutional responsibility in GPE for scrutinising legislation to ensure that it is compatible with Convention rights . In its Second Report of the Session DATE , drawn up very shortly after publication of the PERSON which became LAW , ORG expressed concern at the potentially discriminatory effect of the proposed measure , as follows :

“ CARDINAL . Second , by relying on immigration legislation to provide for the detention of suspected international terrorists , the PERSON risks discriminating , in the authorisation of detention without charge , between those suspected international terrorists who are subject to immigration control and those who have an unconditional right to remain in GPE . We are concerned that this might lead to discrimination in the enjoyment of the right to liberty on the ground of nationality . If that could not be shown to have an objective , rational and proportionate justification , it might lead to actions which would be incompatible with LAW ORG [ the Convention ] either taken alone or in combination with the right to be free of discrimination in the enjoyment of Convention rights under LAW ] . It could also lead to violations of the right to be free of discrimination under LAW and the right to liberty under LAW ORG [ International Covenant on Civil and Political Rights ] .

We raised this matter with the Home Secretary in oral evidence . Having considered his response , we are not persuaded that the risk of discrimination on the ground of nationality in the provisions of Part CARDINAL of the PERSON has been sufficiently taken on board . ”

In its Sixth Report of the Session DATE ( DATE ) , ORG expressed deep concern “ about the human rights implications of making the detention power an aspect of immigration law rather than anti - terrorism law ” and warned of “ a significant risk that Part CARDINAL violates the right to be free of discrimination under ORG [ the Convention ] Article CARDINAL ” . Following the Report of ORG and the Secretary of ORG ’s discussion paper published in response to it , ORG returned to this subject in its Eighteenth Report of the Session DATE ( DATE ) , paragraphs CARDINAL - CARDINAL :

“ DATE . The discussion paper rejects ORG recommendation that new legislation replacing Part CARDINAL [ of LAW ] should apply equally to all nationalities including NORP citizens . It states the ORG ’s belief that it is defensible to distinguish between foreign nationals and GPE nationals because of their different rights and responsibilities .

We have consistently expressed our concern that the provisions of Part CARDINAL [ of LAW ] unjustifiably discriminate on grounds of nationality and are therefore in breach of LAW [ of LAW ] . Along with Lord PERSON , we find it extraordinary that the discussion paper asserts that seeking the same power to detain NORP citizens would be ‘ a very grave ORG and that ‘ such draconian powers would be difficult to justify’ .

The interests at stake for a foreign national and a GPE national are the same : their fundamental right to liberty DATE [ of the Convention ] and related procedural rights . LAW ORG [ the Convention ] requires ORG to secure the Convention rights to everyone within their jurisdiction . LAW the enjoyment of Convention rights to be secured without discrimination on the ground of nationality . The Government ’s explanation in its discussion paper of its reluctance to seek the same powers in relation to GPE nationals appears to suggest that it regards the liberty interests of foreign nationals as less worthy of protection than exactly the same interests of GPE nationals , which is impermissible under the LAW . ”

The ORG visited the detained applicants in DATE and again in DATE . In its report published on DATE , the ORG was critical of the conditions in which the applicants were held in FAC and ORG and reported allegations of ill - treatment by staff . It found the regime in FAC to be more relaxed . The ORG found that the health of the majority of the detained applicants had declined as a result of their detention , in particular its indefinite character . The ORG stated in its report :

“ In fact , the information gathered during the DATE visit reveals that the authorities are at a loss at how to manage this type of detained person , imprisoned with no real prospect of release and without the necessary support to counter the damaging effects of this unique form of detention . They also highlight the limited capacity of the prison system to respond to a task that is difficult to reconcile with its normal responsibilities . The stated objective , in the response to the ORG ’s report on the DATE visit , of formulating a strategy to enable ORG to manage most appropriately the care and detention of persons held under LAW , has not been achieved .

DATE after the ORG visited these detained persons , many of them were in a poor mental state as a result of their detention , and some were also in poor physical condition . Detention had caused mental disorders in the majority of persons detained under the [ CARDINAL Act ] and for those who had been subjected to traumatic experiences or even torture in the past , it had clearly reawakened the experience and even led to the serious recurrence of former disorders . The trauma of detention had become even more detrimental to their health since it was combined with an absence of control resulting from the indefinite character of their detention , the uphill difficulty of challenging their detention and the fact of not knowing what evidence was being used against them to certify and/or uphold their certification as persons suspected of international terrorism . For some of them , their situation at the time of the visit could be considered as amounting to inhuman and degrading treatment . ”

The Government published their response to the ORG ’s DATE report on DATE . The Government strongly disputed the allegations of ill - treatment by prison staff and pointed out that the detained applicants had at their disposal the remedies provided by administrative and civil law to all prisoners to complain of ill - treatment . The ORG ’s response continued :

“ Although the ORG respects the conclusions reached by the delegates of the [ ORG ] based on the observations on DATE of visit , it categorically rejects the suggestion that at any point during their detention the [ CARDINAL Act ] detainees were treated in an ‘ inhuman or PERSON manner that may have amounted to a breach in GPE international human rights obligations . The Government firmly believes that at all times the detainees received appropriate care and treatment in ORG and had access to all necessary medical support , both physical and psychological , from medical support staff and doctors . The ORG accepts that the individuals had difficult backgrounds prior to detention , but does not accept that ‘ detention had caused mental PERSON . Some of the detainees had mental health issues prior to detention , but that did not stop them engaging in the activities that led to their certification and detention . Mental health issues do not prevent an individual from posing a risk to national security .

The Government does not accept that those certified under [ the DATE Act ] were detained without any prospect of their release . ...

On no occasion did ORG , or any other court , find that the conditions of detention breached the absolute obligation imposed upon the Government by LAW ] . It is the ORG ’s view that , given the extensive judicial safeguards available to the detainees , the Government would not have been able to maintain the detention of these individuals had the powers breached the LAW CARDINAL rights in any way . To suggest otherwise would be to ignore the extensive contact the detainees had with the NORP judicial system and the absolute obligation upon the judiciary to protect against any such breach . ”

In DATE the NORP Commissioner for Human Rights to ORG published his opinion on certain aspects of GPE derogation from LAW . In that opinion he expressly criticised the lack of sufficient scrutiny by ORG of the derogation provisions and questioned whether the nature of the ORG threat was a justifiable basis for recognising a public emergency threatening the life of the nation :

“ Whilst acknowledging the obligations of the governments to protect their citizens against the threat of terrorism , the Commissioner is of the opinion that general appeals to an increased risk of terrorist activity post DATE can not , on their own be sufficient to justify derogating from the Convention . Several European States long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights . Nor have any found it necessary to do so under the present circumstances . Detailed information pointing to a real and imminent danger to public safety in GPE will , therefore , have to be shown . ”

The Commissioner continued , with reference to the detention scheme under LAW :

“ In so far as these measures are applicable only to non - deportable foreigners , they might appear , moreover , to be ushering in a CARDINAL - track justice , whereby different human rights standards apply to foreigners and nationals . ”

On DATE the Commissioner published a report arising out of his visit to GPE in DATE . He specifically referred to the ORG of Lords’ decision in the ORG case and noted the fact that the ORG had not sought to renew the relevant provisions of LAW in DATE . He welcomed the decision of ORG , which corresponded with his own previously published opinion , and also welcomed the release of the applicants , emphasising that as a result of his visit he was in a position personally to testify to “ the extremely agitated psychological state of many of them ” . As a result of interviews which he had conducted with , among others , the ORG Secretary , the Lord Chancellor , the Attorney - General , the Lord Chief Justice and ORG , the Commissioner also expressed a conclusion about the availability under the law of GPE of alternative measures to combat the threat of terrorism :

“ Terrorist activity not only must but can be combated within the existing framework of human rights guarantees , which provide precisely for a balancing , in questions concerning national security , of individual rights and the public interest and allow for the use of proportionate special powers . What is required is well - resourced policing , international cooperation and the forceful application of the law . It is to be noted , in this context , that in LAW , GPE already has amongst the toughest and most comprehensive anti - terror legislation in LOC . ”

The Committee ’s Concluding Observations on GPE , dated DATE , stated at paragraph CARDINAL :

“ CARDINAL . The ORG is deeply concerned about provisions of the Anti - terrorism , Crime and Security Act which provide for the indefinite detention without charge or trial , pending deportation , of non - nationals of GPE who are suspected of terrorism - related activities .

While acknowledging ORG national security concerns , the ORG recommends that ORG seek to balance those concerns with the protection of human rights and its international legal obligations . In this regard , the ORG draws ORG attention to its statement of DATE in which it underlines the obligation of GPE to ‘ ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race , colour , descent , or national or ethnic origin’ . ”

On DATE ORG adopted LAW ( DATE ) which resolved , in paragraph CARDINAL :

“ In their fight against terrorism , ORG members should not provide for any derogations to ORG . ”

In paragraph CARDINAL , it also called on all member GPE to :

“ ... refrain from using LAW ( derogation in time of emergency ) to limit the rights and liberties guaranteed under its LAW right to liberty and security ) . ”

Apart from GPE , no other member ORG chose to derogate from LAW after DATE .

Following its meeting on DATE to discuss “ Democracies facing terrorism ” ( ORG Rec CARDINAL ) , ORG adopted on DATE “ Guidelines on human rights and the fight against terrorism ” , which provided , inter alia :

“ I. States’ obligation to protect everyone against terrorism

States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts , especially the right to life . This positive obligation fully justifies States’ fight against terrorism in accordance with the present guidelines .

II . Prohibition of arbitrariness

All measures taken by GPE to fight terrorism must respect human rights and the principle of the rule of law , while excluding any form of arbitrariness , as well as any discriminatory or racist treatment , and must be subject to appropriate supervision . ”

In its General Policy Recommendation No . CARDINAL on combating racism while fighting terrorism , published on DATE , ORG considered it the duty of the ORG to fight against terrorism ; stressed that the response should not itself encroach on the values of freedom , democracy , justice , the rule of law , human rights and humanitarian law ; stressed that the fight against terrorism should not become a pretext under which racial discrimination was allowed to flourish ; noted that the fight against terrorism since DATE had in some cases resulted in the adoption of discriminatory legislation , notably on grounds of nationality , national or ethnic origin and religion ; stressed the responsibility of member GPE to ensure that the fight against terrorism did not have a negative impact on any minority group ; and recommended States :

“ ... to review legislation and regulations adopted in connection with the fight against terrorism to ensure that these do not discriminate directly or indirectly against persons or group of persons , notably on grounds of ‘ race’ , colour , language , religion , nationality or national or ethnic origin , and to abrogate any such discriminatory legislation . ”

Article CARDINAL § CARDINAL of the ORG states as follows :

“ In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed , GPE Parties to LAW may take measures derogating from their obligations under LAW to the extent strictly required by the exigencies of the situation , provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race , colour , sex , language , religion or social origin . ”

In DATE , a group of CARDINAL experts in international law , convened by ORG , ORG law , ORG for ORG , ORG and ORG , met in GPE ( GPE ) to consider the above provision , inter alia . Paragraphs CARDINAL of the resulting “ Siracusa Principles on the LAW in LAW ” declare , under the heading “ Public emergency which threatens the life of the nation ” :

“ DATE . A State Party may take measures derogating from its obligations under LAW pursuant to LAW hereinafter called ‘ derogation measures’ ) only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation . A threat to the life of the nation is one that :

( a ) affects the whole of the population and either the whole or part of the territory of the ORG ; and

( b ) threatens the physical integrity of the population , the political independence or the territorial integrity of the ORG or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the LAW .

Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation can not justify derogations under LAW . ”

Paragraph CARDINAL of ORG continues as follows :

“ DATE . The principle of strict necessity shall be applied in an objective manner . Each measure shall be directed to an actual , clear , present , or imminent danger and may not be imposed merely because of an apprehension of potential danger . ”

The United Nations Human Rights Committee , in General Comment No . CARDINAL on LAW ORG ( DATE ) , observed in paragraph CARDINAL :

“ Measures derogating from the provisions of the LAW must be of an exceptional and temporary nature . ”

In PERSON v. Minister of Citizenship and Immigration [ CARDINAL ] CARDINAL SCR CARDINAL , PERSON , for ORG , observed in paragraph CARDINAL :

“ Last but not least , a fair hearing requires that the affected person be informed of the case against him or her , and be permitted to respond to it . ”

That right was not absolute and might be limited in the interests of national security ( paragraphs CARDINAL - CARDINAL ) ; however , paragraph CARDINAL provides :

“ ... The judge is therefore not in a position to compensate for the lack of informed scrutiny , challenge and counter - evidence that a person familiar with the case could bring . Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet . Here that principle has not merely been limited ; it has been effectively gutted . How can CARDINAL meet a case one does not know ? ”

In GPE v. PERSON CARDINAL GPE CARDINAL ( DATE ) , O’Connor J , writing for the majority of ORG of GPE , said ( p. CARDINAL ) :

“ We therefore hold that a citizen - detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification , and a fair opportunity to rebut the ORG ’s factual assertions before a neutral decision - maker [ authority cited ] . ‘ For DATE the central meaning of procedural due process has been clear : Parties whose rights are to be affected are entitled to be heard ; and in order that they may enjoy that right they must first be notified ... ’ These essential constitutional promises may not be eroded . ”

ORG Commissioner for Human Rights , in paragraph CARDINAL of his report of DATE ( see paragraph ORG above ) , and ORG ( see paragraph CARDINAL above ) , in paragraph CARDINAL of its Twelfth Report of the Session DATE , ( ORG , ORG CARDINAL ) had difficulty in accepting that a hearing could be fair if an adverse decision could be based on material that the controlled person has no effective opportunity to challenge or rebut .