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A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
When it came to the closed session, the Special Advocates informed us that after
careful consideration they had decided that it would not be in the Appellant’s interests
for them to take any part in the proceedings. We were very concerned at this, taking
the view that the decision was wrong. The appeal was still being pursued and the
Appellant did not know what was relied on against him in the closed material. We
were unable to understand how in the circumstances it could not be in his interests for
the Special Advocates, at their discretion, to elicit or identify matters favourable to the
Appellant and to make submissions to us to seek to persuade us that evidence was in
fact unreliable or did not justify the assessment made. When we asked [one of the two
Special Advocates appointed on behalf of the eighth applicant] to tell us why he had
decided as he had he told us that he could not do so since to do so would not be in the
Appellant’s interest. We adjourned to enable the Special Advocates to seek to
discover from the Appellant through his representatives whether he did wish them to
do what they could on his behalf and we also contacted the Solicitor-General who had
appointed the Special Advocates to seek her help in trying to persuade them to assist
us. The Appellant’s representatives indicated that they had nothing to say on the
subject and the Solicitor-General took the view that it would be wrong for her to
intervene in any way. Our further attempts to persuade the Special Advocates to
change their minds were unsuccessful and since we could not compel them to act in
any particular way we had to proceed without them. [Counsel for the Secretary of
State], at our request, identified various matters which might be regarded as possibly
exculpatory and we ourselves raised other matters in the course of the closed hearing.
We are conscious that the absence of a Special Advocate makes our task even more
difficult than it normally is and that the potential unfairness to the Appellant is the
more apparent. We do not doubt that the Special Advocates believed they had good
reasons for adopting the stance that they did and we are equally sure that they thought
long and hard about whether they were doing the right thing. But we are bound to
record our clear view that they were wrong and that there could be no reason for not
continuing to take part in an appeal that was still being pursued. ... As it happens, the
evidence in this case against the Appellant is so strong that no Special Advocates,
however brilliant, could have persuaded us that reasonable suspicion had not been
established so that the certification was not justified. Thus the absence of Special
Advocates has not prejudiced the Appellant. ...”
56. SIAC then summarised the open case against the applicant, which
was that he had associated with and acted as spiritual adviser to a number of
individuals and groups linked with al-Qaeda. He held extreme and
fundamentalist views and had been reported as having, in his speeches at a
London mosque, given his blessing to the killing of Jews and Americans,
wherever they were. SIAC concluded:
“We are satisfied that the Appellant’s activities went far beyond the mere giving of
advice. He has certainly given the support of the Koran to those who wish to further
the aims of al-Qaeda and to engage in suicide bombing and other murderous activities.
The evidence is sufficient to show that he has been concerned in the instigation of acts
of international terrorism. But spiritual advice given in the knowledge of the purposes
for which and the uses to which it is to be put provides assistance within the meaning
of section 21(4) of the 2001 Act.
...