Counter Terrorism and the Use of Undisclosed Evidence

BB, R (on the application of) v Special Immigration Appeals Commission & Anor [2011] EWHC 336 (Admin) (25 February 2011) Summary

This case considered procedural requirements in the hearing of bail applications made by persons detained on undisclosed national security grounds. The England and Wales High Court concluded that, as a minimum requirement in such applications, government authorities must disclose to the detainees the evidence it used in deciding to deport them. This is so despite the fact that the government can legally detain people pending their deportation on the basis of undisclosed material.


The case concerned an Algerian national (BB) whom British authorities had detained after investigations revealed that he had links to Islamic extremists. He was held in immigration detention pending deportation. BB appealed to the Special Immigration Appeals Commission (SIAC) against the decision to deport him, but was unsuccessful. BB subsequently made a bail application for release from detention pending deportation. The application was also refused by the SIAC. BB then applied to the High Court for judicial review of the bail decision.

The original decision to deport BB was based on the conclusion that he was a national security risk. For national security reasons, the material used for reaching this conclusion were not disclosed to BB nor to BB’s legal advisers. The material was, however, disclosed to a special advocate acting on BB’s behalf. The subsequent refusal of bail was based on the conclusion that BB was a national security risk, which was reached in the earlier decision to deport. The question before the High Court was whether it was a violation of the right to fair hearing under the European Convention on Human Rights (ECHR) for the SIAC to refuse BB’s bail application based on undisclosed evidence.


The Legal Context

Article 6 of the ECHR confers the right to a fair hearing in criminal and civil proceedings.  Article 5(4) states that a person deprived of his liberty by arrest or detention is entitled to take proceedings to determine the lawfulness of his detention. In A v United Kingdom (2009) 49 EHRR 29, it was concluded that, in the context of persons challenging the lawfulness of their detention under British anti-terrorism legislation, article 5(4) required that they be afforded the fair hearing guarantees under article 6. In particular, this required the government authorities to disclose to the detainees the evidence it used in deciding to detain them. The European Court considered that while not all evidence needs to be disclosed where national security is concerned, the government must still disclose sufficient information to allow the detainees to effectively answer the key allegations made against them.

In R (Cart) v Upper Tribunal, R (U) and (XC) v Special Immigration Appeals Commission [2009] EWHC 3052, the High Court held that the disclosure requirements set out in A v United Kingdom apply to bail applications before the SIAC by persons who have been detained pending deportation. However, it has also been recognised that decisions to deport an alien do not, of themselves, attract the procedural requirements under article 6 (see RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28).

The effect of these decisions is that, in BB’s case, the ECHR does not require the disclosure of evidence in the original decision to deport him, where it was concluded that BB was a national security risk. However, in the subsequent bail application by BB, the government is required to disclose sufficient information as to allow him to effectively answer the allegations against him.

The High Court considered whether it was a breach of BB’s right to a fair hearing in the bail application for the SIAC to rely on its earlier conclusion from the closed deportation decision that BB was a national security risk, without disclosing the evidence against him.

SIAC’s Arguments

The SIAC advanced two arguments why it should not have to disclose evidence to BB in the bail application. First, it argued that as it was not required to disclose the evidence for concluding that BB posed a national security risk in the original deportation decision, it could legitimately rely on that conclusion in subsequent bail application. To require disclosure in the subsequent proceeding amounts to reopening the original decision to deport, which the SIAC argued was perfectly valid. Secondly, the SIAC pointed out that it was not strictly required under the ECHR to hear bail applications by persons detained pending deportation. Therefore, it was argued that the practical effect of requiring the disclosure of evidence in bail proceedings was that the SIAC simply will not hear bail applications in the future. This would lead to a worse practical result for the detainees.

Court’s Conclusion

The Court held that the SIAC was required to disclose to BB the evidence against him on the national security issue, at least to the extent to allow him to effectively answer the allegations. The Court held that while such a requirement may lead to the original deportation decision being reopened in some instances, the risk is not so great as to warrant denying the detainee’s procedural rights. As to the prospect that SIAC may simply stop hearing bail applications, the court stated its paramount concern for procedural fairness.

Relevance to the Victorian Charter

The Victorian Charter contains the equivalent of articles 5(4) and 6 of the ECHR in substantially the same language. Section 24 of the Charter provides for right to a fair and public hearing in criminal and civil proceedings. Section 21(7) provides that a person deprived of liberty is entitled to apply to a court to determine the lawfulness of his/her detention. Furthermore, section 21(4) requires that a person who is arrested or detained must be informed of the reason for the arrest or detention. Therefore, it appears that the Charter expressly supports the detainee’s right to the disclosure of evidence against him/her which emerged from BB.

The decision is at

Tian Xu, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group