12 Oct 2006

Liberty calls on Home Secretary to explain intelligence scandal to Parliament 
 
A security-cleared judgment released by the Special Immigrations Appeals Commission (SIAC) reveals not only that secret Government intelligence in a terror case was flawed, but that this was discovered by chance. 

While acting on behalf of two suspects before SIAC, Special Advocate Andrew Nicol QC found that intelligence used as key evidence in one case was contradicted by the other. In the new judgment, SIAC finds that “there has been fault on the party of the Secretary of State,” and that failures by Home Office lawyers put the very administration of justice at risk. 
 
The human rights group Liberty is calling on the Home Secretary to clarify the intelligence scandal before Parliament and for the Privy Council to urgently review the use of secret intelligence in SIAC cases. 
  
Director of Liberty Shami Chakrabarti said: 

“Our worst fear has been realized when the Government submits flawed secret intelligence to a commission which will determine if people are to be returned to countries where they may face torture. 
  
The Home Secretary has a duty to explain why the commission was misled and how this can possibly be prevented under these shadowy arrangements in the future.” 
  
The defendant MK had French/Algerian citizenship and has returned voluntarily to Paris. However, flawed secret intelligence is completely possible in the cases of 16 other Algerian nationals who face deportation. The Foreign and Commonwealth Office and international human rights monitors have expressed concerns about abductions, torture and extra-judicial killings in Algeria. 
  
Contact: Jen Corlew on 0207 378 3656 or 0797 3 831 128 
 
Excerpts from the Special Immigration Appeals Commission’s
 
Redacted version of paragraphs 88 – 104 in the Closed Judgment of MK 
  
• The contents of these documents bear upon the allegation advanced by the Secretary of State that Abu Doha had used the appellant’s passport to enter Ireland and/or the Netherlands. This allegation has been withdrawn, but that withdrawal came only as a result of the Special Advocates’ intervention, when their attention to the Abu Doha closed material revealed the existence of relevant documents. Had the coincidence of the Special Advocate’s instruction in both cases not occurred, the Commission would have been left to determine the question whether Abu Doha used the appellant’s passport, on a false basis. As it happens, the Chairman on this appeal is the Chairman of the Commission who will hear Abu Doha’s appeal. It is unnecessary to elaborate on the consequences which might have flowed had the Special Advocates not drawn the Commission’s attention to the existence of these documents. 
  
• It is clear to the Commission that inadequate attention was paid to the need for cross referencing between the individual cases of all those said to be members of the Abu Doha group. As the Special Advocates point out in their letter dated 24th April 2006, had proper attention been paid to all the relevant material which was available to the Security Service, the allegation that Abu Doha used the appellant’s passport would not have been made. This point was made clear when the Commission re-opened the appeal, in closed hearing, in order to consider the “Abu Doha” material. 
  
• There has been fault on the part of the Secretary of State for the Home Department. Ian Burnett QC represented the Secretary of State at the hearing convened by the Commission when the Abu Doha material was first discovered. As a result of the Special Advocates’ intervention, the Secretary of State’s legal team carried out a trawl of the Abu Doha material and submitted a supplementary bundle, but the documents enclosed with the letter of 24th April 2006 were not picked up by that exercise. It is not appropriate to respond to that failure by contending, as Mr Wilken has done in his letter dated 25th April 2006, that since the issue as to the passport was no longer live, further disclosure was not required. The Commission should have been made aware of the full extent of the failure to disclose. Mr Burnett’s assurance has, within weeks, been undermined. Further, the response fails to appreciate the wider relevance of the material. These documents may have led to the formulation of a more refined issue. 
  
• The Commission is alive to the demands which are made by these cases on the legal team for the Secretary of State. However, the administration of justice in the Commission is put at risk if failures in connection with disclosures of documents occur. It is imperative that the need for proper disclosure to take place, if presently it is being compromised by lack of resources, should be brought to the attention of those at the highest level. No comfort should be regarded as being available from the outcome of this appeal. Had it not been for the firm conclusions to which the Commission has felt able to come, after its exhaustive marshalling of the material in the case, the lack of bad faith on the part of the Secretary of State for the Home Department and all the other circumstances which have been taken into account by the Commission, it is fair to say that the failures in connection with disclosure can have a consequence along the lines requested by the Special Advocates in this case. 
  
NOTES TO EDITORS
 
1. The Special Immigration Appeals Commission (SIAC) is an immigration tribunal empowered to hear appeals by foreign nationals facing deportation because they are accused of posing a threat to the national security of the UK. SIAC is allowed to conduct closed hearings which exclude the deportee and legal representatives.