Saturday, March 10, 2012

When to rescue the rescuer

Procedural fairness may have to be sacrificed to protect a litigant's rights. An illustration is W (Algeria) & Anor v Secretary of State for the Home Department [2012] UKSC 8 (7 March 2012).

The moral issue here was, in the broadest possible terms, should a rescuer be protected if the rescue might be without merit? More specifically, when should a tribunal be able to extend the protection of confidentiality to a witness who claims to have information that would assist a litigant?

The appeal concerned extradition proceedings and whether the appellants, if extradited, would be at risk of ill-treatment in breach of their rights under article 3 of the European Convention on Human Rights.

A witness who claimed to be able to substantiate the risk of ill-treatment refused to give evidence unless the Special Immigration Appeals Commission (SIAC) made an order of confidentiality that would prevent the Secretary of State disclosing to anyone his evidence and his identity. Could SIAC make such an order?

The order would prevent the Secretary investigating the credibility and reliability of the witness, or at least would limit the Secretary's ability to carry out those inquiries. Further, the application for the order would have to be made ex parte, and the Secretary could not therefore oppose it. These were the limits on procedural fairness that would arise if the order was made.

Arguing against the making of such orders, the Secretary submitted that policy favoured the ability to pass on information to governments where threats to security would otherwise not be met. For example, the witness may be a terrorist planning an atrocity, and this may be evident from the nature of the evidence he gives in support of the risk of ill-treatment. Confidentiality might have severe diplomatic consequences if the government of a targeted country discovered that the Secretary had not passed on information that may have saved lives.

So, which is to dominate? The interests of the litigant facing extradition and a risk of ill-treatment, or the interests of those vulnerable to terrorism?

The Supreme Court was unanimous. Two judgments were delivered, each agreeing with the other.

Lord Brown found an answer to the Secretary's potential diplomatic embarrassment in the defence of obedience to a court order [14]. It was necessary to maximise SIAC's chances of arriving at the correct decision [18]. However the power to make such confidentiality orders should be "most sparingly used" [19]. If necessary it should be open to the Secretary to try to persuade SIAC to seek a sufficient waiver of confidentiality to address national security concerns, and if that waiver was not forthcoming then SIAC could view the evidence with scepticism or exclude it [21]. And in any event, in deciding whether to make the order SIAC should require a detailed statement of the proposed evidence, why the witness fears reprisals, and how the person challenging extradition learnt of the witness's proposed evidence and what steps were taken to get the witness to give evidence in the normal way subject to the usual safeguards of anonymity orders and private hearings [20].

Lord Dyson said that a confidentiality order should be made if SIAC is satisfied that the witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return, and if SIAC has no reason to doubt that the witness genuinely and reasonably fears reprisals if his identity and evidence were to be disclosed [34].

The issue arose here in connection with article 3 rights (not to be subjected to torture or to inhuman or degrading treatment or punishment), but Lord Dyson added that it would also arise if the case raised a question under article 2 (right to life) [38]. But if the person resisting extradition relied on an alleged risk of breach of some other article of the Convention, "the balance will almost certainly be struck the other way." [38] He gave as an example breach of article 8 rights (respect for private and family life).

Perhaps too a risk in the requesting country of breach of article 6 rights (fair trial, presumption of innocence) might be sufficient to justify a confidentiality order, but that was not addressed in these appeals.

Lord Brown made it clear that his reasoning was based on the balancing of interests and not on the idea that the playing field should be level or that there should be an equality of arms [22] in the extradition hearing. That is to say, the answer did not emerge from fair hearing considerations. Plainly the procedure is unfair to the Secretary who in any event is obliged to act in the public interest and also to disclose information that could assist the person resisting deportation [22].

A right to a fair hearing belongs to the defendant, not to the prosecutor, so indeed it is inappropriate to speak of level playing fields and equality of arms. Inequalities are assumed, and efforts are made to minimise them, but sometimes they serve the public interest and can be tolerated as long as the hearing remains fair to the defendant. See, for example, R v H [2004] UKHL 3.

So, although this issue arose in the context of extradition, it is potentially relevant to criminal proceedings.

Well, we might wonder if international relations are necessarily conducted according to law. Anyone who was brought up on the novels of Ian Fleming and John Le Carre, or who more recently has enjoyed watching "Spooks", will have doubts. It is easy to imagine in the distant and troubled future that some new Secretary might yell at a subordinate (or at a Chief Justice) "Do you think I am going to let thousands of people die just because of an effing confidentiality order?" As far as the law is concerned, the diplomatic argument should not have been raised and an answer to it not given. Whether the policy of sharing information on terrorist threats outweighs the rights of an individual litigant depends on the content of the evidence in respect of which confidentiality is sought in a specific case. General propositions of the kind advanced by the Secretary here are, without that link to the particular evidence, irrelevant. Also, the Court makes an inappropriate link between refusal of waiver and credibility. Refusal should enhance credibility, not diminish it. A person who refuses to waive confidentiality probably has good reasons for doing so and those reasons should support an inference that he knows what he is talking about. The real issues in this sort of case will be the need for the witness to have confidentiality and the risk of the defendant being ill-treated after extradition, and it is unfortunate that the judges did not reach for their copies of Dworkin's "Justice for Hedgehogs".