Ever since the Twin Towers fell on 11 September 2001, it has been clear that the United Kingdom government has regarded the legal limits on its ability to deport certain foreign nationals as a major inhibition upon the successful prosecution of the “war on terror”. Those limits derive from the facts that the prohibition on torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights was held in Chahal v. UK (1996) 23 E.H.R.R. 413 to extend to a ban on deporting people to countries in which they would face a real risk of such abuse, and that it is precisely such countries from which many suspected foreign terrorists originate. The cases considered in this note – A v. UK [2009] ECHR 3455/05 and RB (Algeria) v. Home Secretary [2009] UKHL 10, [2009] 2 W.L.R. 512 – address the legality of two of the devices used by the UK to ameliorate the impact of Chahal.

The less subtle of those devices was Part 4 of the Anti-terrorism, Crime and Security Act 2001, which provided for the indefinite detention without trial of foreign nationals reasonably suspected by the Home Secretary of involvement in international terrorism. In an attempt to head off challenges to that scheme as a violation of the right to personal liberty under Article 5 ECHR, the UK invoked Article 15, which permits derogation from certain rights (including liberty but not the right to be free from torture) if strictly necessary to answer demands imposed, inter alia, by a “public emergency threatening the life of the nation”. In A v. UK, the Grand Chamber of the European Court of Human Rights held that Part 4 of the 2001 Act was not a strictly necessary response to the acknowledged emergency evidenced by the attacks in the USA and that the detention of the applicants was in breach of Article 5.

This conclusion is noteworthy given that the European Court has in the past adopted a deferential if not supine approach when assessing the legality of derogations under Article 15. This departure was, however, in no small part attributable to the fact that the European Court's decision was prefigured by the path-breaking House of Lords case of A v. Home Secretary [2004] UKHL 56, [2005] 2 A.C. 68 (noted [2005] C.L.J. 271) in which, dispensing with English judges' traditional reticence whenever the phrase “national security” is uttered, the Law Lords issued in respect of Part 4 of the 2001 Act a declaration of incompatibility under the Human Rights Act 1998, prompting the repeal of the former. The European Court held that although national authorities are entitled to substantial latitude in Article 15 cases, because they are “in principle better placed than the international judge” to decide whether there is an emergency and, if so, what should be done about it, it would only part company with the House of Lords if satisfied that it had misunderstood the European Court's case law or reached a “manifestly unreasonable” decision. It is therefore hard to resist the conclusion that it was the robustness of the Law Lords' analysis – which was premised on the defensible proposition that it lay outside neither the competence nor constitutional province of judges to recognise that the absence of a satisfactory explanation of the government's failure to detain British suspects meant the necessity of detaining equivalently-dangerous foreigners had not been made out – that caused the European Court to cast aside the deference that characterises so much of its Article 15 jurisprudence.

In the wake of the House of Lords' decision in A v. Home Secretary, detention in lieu of deportation was replaced, inter alia, by attempts to facilitate deportation by negotiating no-torture agreements with certain countries. The capacity of such agreements to render lawful deportation to Algeria and Jordan – which, the government accepted, would otherwise have been contrary to the ECHR – fell for consideration in RB. At first instance, the Special Immigration Appeals Commission (SIAC) held that the assurances provided by the respective foreign governments were sufficient to establish the absence of a real risk that the individuals concerned would suffer torture or inhuman or degrading treatment upon return. Because appeal against SIAC's decisions lies only on points of law, the House of Lords held that SIAC's conclusion could be disturbed only if irrational – which, their Lordships unanimously held, it was not. This was notwithstanding that the Algerian government had refused to permit external monitoring of the treatment of returned individuals: it was held that the possibility of consular contact except during any period of detention (which is surely when deportees would be most vulnerable to torture) would satisfy the requirement that compliance with the assurances had to be objectively verifiable. The Law Lords further held that the rationality of SIAC's decision was tainted neither by Algeria and Jordan's lamentable human rights records, which might be thought to undermine the credibility of the assurances given to the British government, nor by the fact that one of the appellants had originally obtained asylum in the UK on the ground that he had been tortured in Jordan, to which his return was now proposed.

That appellant – the well-known radical Islamic preacher Abu Qatada, who was also one of the successful applicants in A v. UK – further argued that his deportation would violate the right to a fair trial set out in Article 6 ECHR. SIAC found (and the House of Lords did not disagree) that, if returned, he would face a trial at which there was a real risk that evidence obtained via torture would be used against him. Had the Chahal principle applied, this would have been sufficient to establish the unlawfulness of the proposed deportation. However, it was held, following dicta in R (Ullah) v. Special Adjudicator [2004] UKHL 26, [2004] 2 A.C. 232, that where ECHR rights other than Article 3 are involved, deportation will only be unlawful if it can be shown that there is a real risk not merely of a breach of the right, but of a flagrant breach of its very essence. This meant that Article 6 would preclude deportation only if there was a real risk of a flagrant denial of justice, such as would fundamentally destroy the fairness of the trial, in the destination state.

The Court of Appeal ([2007] EWCA Civ 808, [2008] Q.B. 533) had held that deporting Abu Qatada would create such a risk. In doing so, it was influenced by the fact that the focus of concern related to the procurement of evidence through torture, the prohibition on which, said Buxton L.J., was a “fundamental, unconditional and non-derogable [one] that stands at the centre of the Convention protections”. It followed that courts should in practice be readier to find that deportation would violate Article 6 where the complaint related to the prospective use of evidence obtained via torture than in cases based, for example, on technical aspects of the trial process. Since it was likely to be difficult for those seeking the exclusion of evidence to discharge to the satisfaction of Jordanian courts the burden placed on them by local law of proving that the information had been extracted under torture, the Court of Appeal concluded that deportation would create a real risk of a flagrant denial of justice.

The Law Lords, however, held that SIAC had been entitled to conclude that it would not, on the basis that Jordanian law provided machinery for the exclusion of evidence obtained through torture and that it could not be said that it was probable that such machinery would not be properly used. The risk that it might not, said Lord Hoffmann, was not enough to make deportation unlawful. He went on to say that the perverse effect of taking any other view would be to hold the Jordanian courts to a higher standard than that which applies domestically. This assertion is based on a somewhat unsubtle reading of A v. Home Secretary (No. 2) [2005] UKHL 71, [2006] 2 A.C. 221, in which it was held that once litigants in English courts have advanced a “plausible reason” why evidence may have been obtained by torture, it is for the court to investigate the matter and exclude the evidence if satisfied that torture was probably used. A three-judge minority (of which, perplexingly, Lord Hoffmann was a member) went further, arguing that an exclusionary rule would be worthless unless courts were required to exclude material whenever not satisfied that it had not been obtained through torture. The fact that Jordan's courts fall short of both of these standards failed to persuade the Law Lords in RB that SIAC had not been entitled to conclude that the appellant's deportation would be lawful. It is clear therefore that the protection afforded by the flagrant denial of justice test is largely if not wholly illusory. Whether, in the absence of clear authority from the European Court, the Convention should be interpreted as preventing individuals who are regarded as a threat to national security from being condemned to the prospect of life imprisonment at the hands of a legal regime in which the use of evidence extracted under torture is at least a real risk is not an entirely clear-cut question. But the Appellate Committee's answer to it renders somewhat empty Lord Hope's enthusiastic endorsement of the principle that member states must secure to everyone within their jurisdiction the rights set out in the ECHR, such that “aliens” and nationals must be protected alike – without discrimination, and however “dangerous”, “despicable” or “disgusting” they might be.