Case No. UKUT-00376-(IAC)

2015 FC 46 ( CanLII ). The passages from his decision quoted in the respondent’s skeleton argument are all taken from the submissions of the Attorney General as made to Mr Justice Russell, rather than from the section of the decision in which he gives own analysis and reasoning. The S ecretary of State does not assist with how these submissions were dealt with in the decision. 61. Whilst unhelpful, this is not the most pressing difficulty in assessing the import of this case. The case of Oberlander concerns an issue of Judicial Review in which the applicant has sought , since 2000 , to challenge the decision of the Canadian Governor in Council to revoke his Canadian citizenship under the applicable statutory provisions. The litigation has had the most lengthy and remarkable history, having been through the Federal Court to the Federal Appeal Court and back to the Governor in Council on a number of occasions, at least once in light of a re-statement of the law by the Supreme Court of Canada. Mr Justice Russell’s own decision was challenged before the Federal Appeal Court and by its decision dated 15 February 2016, reported as Oberlander v Canada (Attorney General) 2016 FCA 52 ( CanLII ), the Federal Appeal court allowed the appeal, set aside the decision and remitted the issue of complicity and duress to the Governor in Council for re-determination in accordance with the law. We do not therefore find it helpful to place reliance on the submissions of one-party presented before a judge whose decision was subsequently overturned with the critical issue requiring to be revisited . 62. Having considered the matter in the light of the various authorities, textbooks and commentaries set out above, as explained, we propose to proceed upon the basis that article 31 paragraph 1(d) of the ICC Statute makes available a defence of duress which the appellant is entitled to state in response to the Secretary of State’s claim that there are serious reasons for considering that she has been guilty of crimes against humanity. We propose to proceed upon the view that an evidential burden is imposed on the appellant to raise the existence of circumstances such as would permit the defence to be given effect to , and that if that burden is met a persuasive onus shifts to the Secretary of State to establish that there are serious reasons for considering that the appellant did not act under duress. We would treat the phrase “serious reasons for considering” in this context as having the same autonomous meaning as before. We consider that this approach is in line with the terms of the ICC Statute, with the views of the Commentators mentioned and with the interpretation of i nternational c riminal l aw by the United Nations Special Tribunal for East Timor , subject only to an adjustment on the approach to onus of proof.