82
A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Canada, whereby the judge held an in camera hearing of all the evidence, at
which the proposed deportee was provided with a statement summarising,
as far as possible, the case against him and had the right to be represented
and to call evidence. The confidentiality of the security material was
maintained by requiring such evidence to be examined in the absence of
both the deportee and his representative. However, in these circumstances,
their place was taken by security-cleared counsel instructed by the court,
who cross-examined the witnesses and generally assisted the court to test
the strength of the State’s case. A summary of the evidence obtained by this
procedure, with necessary deletions, was given to the deportee. The Court
commented that it:
“... attaches significance to the fact that, as the interveners pointed out in connection
with Article 13, ... in Canada a more effective form of judicial control has been
developed in cases of this type. This example illustrates that there are techniques
which can be employed which both accommodate legitimate security concerns about
the nature and sources of intelligence information and yet accord the individual a
substantial measure of procedural justice.”
211. In Tinnelly & Sons Ltd and Others and McElduff and Others v. the
United Kingdom (10 July 1998, § 78, Reports 1998-IV) and in Al-Nashif v.
Bulgaria (no. 50963/99, §§ 93-97 and 137, 20 June 2002), the Court made
reference to its comments in Chahal about the special-advocate procedure
but without expressing any opinion as to whether such a procedure would
be in conformity with the Convention rights at issue.
(b) Application to the facts of the present case
212. Before the domestic courts, there were two aspects to the
applicants’ challenge to the lawfulness of their detention. Firstly, they
brought proceedings under section 30 of the 2001 Act to contest the validity
of the derogation under Article 15 of the Convention and thus the
compatibility with the Convention of the entire detention scheme. Secondly,
each applicant also brought an appeal under section 25 of the 2001 Act,
contending that the detention was unlawful under domestic law because
there were no reasonable grounds for a belief that his presence in the United
Kingdom was a risk to national security or for a suspicion that he was a
terrorist.
213. The Court does not consider it necessary to reach a separate finding
under Article 5 § 4 in connection with the applicants’ complaints that the
House of Lords was unable to make a binding order for their release, since it
has already found a violation of Article 5 § 1 arising from the provisions of
domestic law.
214. The applicants’ second ground of complaint under Article 5 § 4
concerns the fairness of the procedure before SIAC under section 25 of the
2001 Act to determine whether the Secretary of State was reasonable in
believing each applicant’s presence in the United Kingdom to be a risk to
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