|Judgments - Secretary of State For The Home Department v. Rehman (AP)
The standard of proof
55. I turn next to the Commission's views on the standard of proof. By way of preliminary I feel bound to say that I think that a "high civil balance of probabilities" is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Sexual Abuse: Standard of Proof) (Minors)  AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. In this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.
56. In any case, I agree with the Court of Appeal that the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant's deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee.
Limitations of the appellate process
57. This brings me to the limitations inherent in the appellate process. First, the Commission is not the primary decision-maker. Not only is the decision entrusted to the Home Secretary but he also has the advantage of a wide range of advice from people with day-to-day involvement in security matters which the Commission, despite its specialist membership, cannot match. Secondly, as I have just been saying, the question at issue in this case does not involve a yes or no answer as to whether it is more likely than not that someone has done something but an evaluation of risk. In such questions an appellate body traditionally allows a considerable margin to the primary decision-maker. Even if the appellate body prefers a different view, it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained. Such restraint may not be necessary in relation to every issue which the Commission has to decide. As I have mentioned, the approach to whether the rights of an appellant under article 3 are likely to be infringed may be very different. But I think it is required in relation to the question of whether a deportation is in the interests of national security.
58. I emphasise that the need for restraint is not based upon any limit to the Commission's appellate jurisdiction. The amplitude of that jurisdiction is emphasised by the express power to reverse the exercise of a discretion. The need for restraint flows from a common-sense recognition of the nature of the issue and the differences in the decision-making processes and responsibilities of the Home Secretary and the Commission.
Section 15(3) of the 1971 Act
59. Finally I come to the construction of section 15(3) of the 1971 Act, which excludes certain cases from the jurisdiction of the adjudicator and by the same definition brings them within the jurisdiction of the Commission under section 2(1)(c) of the 1997 Act. For the purpose of deciding whether an appeal is excluded by section 15(3), it is necessary only to decide that the Home Secretary's reasons fall into one or more of the specified categories. If his reasons could be said to relate to national security or foreign relations or possibly both, it is unnecessary to allocate them to one class or the other. The categories, with their sweeping-up words "or for other reasons of a political nature" do not create separate classes of reasons but a single composite class. In my opinion the other side of the coin, conferring jurisdiction on the Commission, operates in the same way. The Home Secretary does not have to commit himself to whether his reasons can be described as relating to national security, foreign relations or some other political category. The Commission has jurisdiction if they come under any head of the composite class.
60. In my view, therefore, the Commission was wrong to say that section 15(3) should be "read disjunctively". All that is necessary is that the appellant should be given fair notice of the case which he has to meet, in accordance with rule 10(1) of the Special Immigration Appeals Commission (Procedure) Rules 1998. It is unnecessary to engage in what may be a barren dispute over whether those reasons can be said to concern national security or foreign relations or be otherwise political, provided that they fall within the composite class of reasons which gives the Commission jurisdiction. What matters is not how the reasons are categorised but the reasons themselves and the facts relied upon to support them.
61. I would therefore dismiss the appeal. The case should be remitted to the Commission to hear and determine in accordance with the principles stated by the House.
62. Postscript. I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.
63. I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Hoffmann. For the reasons he has given I too would dismiss this appeal.
64. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley, Lord Steyn and Lord Hoffmann. I agree with them that the appeal should be dismissed on two grounds. The first is that the Commission fell into error in holding that for a person to constitute a threat against national security he must engage in, promote, or encourage violent activity
In my opinion the Court of Appeal was right to hold that the promotion of terrorism against any state is capable of being a threat to the security of the United Kingdom, and that there can be an overlap between the three situations referred to in section 15(3) of the Immigration Act 1971.
65. Secondly, I agree with my noble and learned friends that the Court of Appeal was right to hold that the Secretary of State was concerned to assess the extent of future risk and that he was entitled to make a decision to deport on the ground that an individual is a danger to national security, viewing the case against him as a whole, although it cannot be proved to a high degree of probability that he has carried out any individual act which would justify the conclusion that he is a danger.
66. I would dismiss the appeal.
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