W (Algeria) and Others v Secretary of State for The Home Department: CA 29 Jul 2010

A potential witness offered evidence but only if his identity and evidence could be kept permanently secret. He feared torture and retribution from the authorities in Algeria.
Held: Such a promise could not be made. It would leave the respondent in an impossible position where, for example, the information disclosed a threat of future terrorist activity.
Sir David Keene said: ‘Mr Tam QC, on behalf of the Secretary of State, accepts that SIAC could give directions under the Procedure Rules preventing the Secretary of State from disclosing such material to any other person, including the Algerian authorities. He acknowledges that SIAC’s power under rule 39 (1) to ‘give directions relating to the conduct of any proceedings’ is expressed in wide and unlimited terms and could be used in conjunction with the rule 43(2) power to conduct a hearing in private for any good reason so as to prevent disclosure to other persons, including the authorities of the appellant’s country of origin’, but concluded that: ‘[I]t is not open to SIAC to make an order giving the absolute and irrevocable guarantee which is sought by the appellants. This may create a difficulty for the appellants, because of the reluctance of their potential witnesses, but it is inescapable. The adverse effect on them can be mitigated by such steps as anonymity orders and hearings in private, but irrevocable orders preventing the Secretary of State from disclosing material to a foreign state in any circumstances cannot properly be made by SIAC in advance of the Secretary of State seeing that material. As counsel for the Secretary of State said at the SIAC hearing, such a proposal is unworkable and in my view falls outside the scope of SIAC’s powers to give directions, broad though those powers are.’
Jacob,Sullivan LJJ, Sir David Keene
[2010] EWCA Civ 898
Bailii
England and Wales
Cited by:
Appeal fromW (Algeria) and Another v Secretary of State for The Home Department SC 7-Mar-2012
Each of the three appellants, suspected of terrorist activity, objected to their proposed return to Algeria on deportation, saying that it was accepted that torture was routinely used against people in their position, and without redress. . .

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Updated: 27 February 2021; Ref: scu.421119