A and Ors v Secretary of State for the Home Department, [2005] UKHL 71

1st January 2005

• UK Supreme Court
• Finalised
• Counter-Terrorism
• Intervenor

The facts of the case

The Appellants were individuals whothe Home Officesuspected to be terrorists, andwhohad all been detained without charge or trial undersection 23 oftheAnti-Terrorism, Crime and Security Act 2001the 2001 Act). The provision permitting their detention arose froma derogation from Article 5(1) of the European Convention on Human Rights the Convention),under Article 15 of the Convention,following the events of 11 September 2001.TheAppellantsappealed their detention to the Special Immigration Appeals Commission SIAC).SIAC found that their detention was unlawful under Articles 5 and 14 of the Convention,on the basis that the Appellantshad been discriminated against,due totheir nationality, as theywere suspected British terrorists who could not be detained under the relevant provision.The Court of Appeal reversed this finding. The Appellants then appealed to the House of Lordsthe Court).

RSIs interventionin the case

RSI (then British Irish Rights Watch) intervened in the case along with the AIRE Centre (Advice on Individual Rights in Europe), Amnesty International Ltd, the Association forthe Prevention of Torture, the Committee on the Administration of Justice, Doctors for Human Rights, Human Rights Watch, the International Federation of Human Rights, INTERIGHTS, the Law Society of England and Wales, Liberty, the Medical Foundation for the Care of Victims of Torture, REDRESS, and the WorldOrganisationAgainst Torture.As 14organisationswith experience working against the use of torture and other cruel, inhuman or degrading treatment, theseorganisationsintervenedbased on a grave concern about the undermining of the absoluteand non-derogableprohibition ontorture and other forms of ill-treatment underinternationallaw.

To that end, theInterveners submittedthat, if the decision of the Court of Appeal were upheld, states would be provided with a means to circumvent thejus cogensprohibition on torture.They further asserted that theexclusionary ruleu2014whichpreventsthe use, reliance, proffering and admission of information which has been or may have been obtained as a result of a violation of the prohibition on tortureu2014should apply in the presentcase, so as touphold the rule of law. Finally, they submitted that, if the Court of Appeals decision were upheld, there would be an irreconcilable conflict between the UKs international obligations and the exclusionary rule,and theUK domestic law.

The judgment in the case

The Courtheld, in accordance with SIACs original assessment, that the derogation under Article 15 of the Convention was legitimate on the basis of the large-scale terrorist attacks that had occurred, and the Court was bound toafford great weight to theExecutive and Parliaments assessment that there was a risk of terrorism in the UK, albeit at an unspecified time.

However, the Court also held that,although a response to a terrorist threat or attack was a matter of political judgment for theExecutive and Parliament, where Convention rights were impugned by governmental response, the Court was required to protect them by adopting an intensive standard of review of whether Convention rights had been breached in the process. In so doing, the Court held thatsection 23 of the2001 Actdid not rationally address the threat in question, on the basis that it did not apply to British suspected terrorists, andcould apply to non-British individuals who did not pose a threat to the UKs national security.As a result, it was a disproportionate measure to the threat it sought to address. Further,the Court held that section 23 of the 2001 Act discriminated against the Appellantson the basis oftheir nationality, and so was in breach of the UKs international treaty obligations to afford equality before the law. The Derogation Order was accordingly quashed, and section 23 of the 2001 Act was declared to be incompatible with articles 5 and 14 of the Convention.

What does this mean for our work?

As anorganisationdeeply committed to the elaboration ofinternational law and standards related to the protection and promotion of human rights, this caseexemplifies RSIs longstanding commitmentbothto intervening toin cases where counterterrorism measures threaten to undermine the rule of law,andtocollaboratingwith civil societyto do so.