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12/10/2006

Kafka

Beetle

Ah yes, the Special Immigration Appeals Commission.

Lest we forget, this is the tribunal which hears evidence that is so secret that the Defendant isn’t allowed to know what it is, and in which there is no need for the Defendant to actually be charged with anything.

Because there are no charges, there is, naturally, no burden of proof – balance of probabilities or reasonable doubt – to satisfy. The Tribunal’s job is to decide whether the Home Secretary’s suspicions that the Defendant might, possibly, at some indeterminate time in the future, pose a threat to national security, are reasonable. Of course the potential threat to national interests or security can be indirect.

Naturally, it is not hard to show that the suspicions were reasonable because the suspicions will be based on… the secret intelligence evidence.

Let us not forget that SIAC was or is the only route for appeal against deportation or detention without trial on the basis of these suspicions.

Now it turns out that this top secret evidence, hot from the spooks themselves, can be a bit flawed. As in completely contradictory. Granted, not in the same hearing, they’re not that stupid, but across different hearings. Given that the evidence is secret though, who is to know? Not the Defendant, not his or her solicitors, or journos, or anybody else not security vetted and sworn to secrecy.

So who spotted this small flaw? Why, one of the carefully vetted, security cleared, guaranteed not to get pissed and shout the details into their mobile on the train home, special barristers. One of those who get to act for a Defendant that they can’t actually tell anything. This barrister happened to act in both cases. Note ‘happened to act’, meaning by sheer coincidence.

So help me.

Luckily the High court judge on the panel was not impressed when this came to light.

In response the Home Office said:

“Siac with the assistance of the special advocates, has identified an oversight in the secretary of state’s disclosure process in this case.

“That this resulted from an error is accepted and steps are being taken to ensure that this does not occur again.”

An error in the disclosure process? What disclosure process? Unless they mean the error was showing the same ‘defence’ barrrister contradictory evidence in two different cases. That could certainly be considered an error in the disclosure process from one viewpoint. Nobody else outside the prosecution is shown anything, so maybe it means that hardly anybody on the prosecution side is shown anything either, so silly cockups aren’t caught quickly enough.

It is interesting that the SIAC panel is supposed to include a lay member with ‘high security clearance and experience of assessing secret intelligence’. What the hell was this spook or ex-spook doing in these cases?

So, to recap, we have secret evidence, not shown to the Defendant, which evidence only has to suggest that the Home Secretary’s suspicions are reasonable (not proven in any form). This evidence has been self-contradictory (i.e. clearly wrong in at least one case), and there is nothing in the process to check or catch this, other than the sheer happenstance of some relatively principled (but security checked) Rumpole being involved in both cases.

Call me Joseph K and take me to the attic.

(Incidentally, I’ve used ‘prosecution’ and ‘defendant’ throughout, because respondent and appellant really doesn’t seem to fit the situation).

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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  1. Control Orders and secret evidence at Nearly Legal - [...] the farcical situation that we know has occurred in at least one case in the SIAC (and who knows…

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