A v Secretary of State for the Home Department (No 2)

on appeal from: [2004] EWCA Civ 1123

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) (2004) A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals) Appellate Committee Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Hoffmann Lord Hope of Craighead Lord Rodger of Earlsferry Lord Carswell Lord Brown of Eaton-under-Heywood

Counsel

Appellants:	Respondents:
Ben Emmerson QC	Ian Burnett QC
Philippe Sands QC	Philip Sales
Raza Husain	Robin Tam
Danny Friedman	Jonathan Swift

and Tyndallwoods, Birmingham)

Interveners
Sir Sydney Kentridge QC, Colin Nicholls QC, Timothy Otty, Sudhanshu Swaroop and Colleen Hanley

(Instructed by Freshfields Bruckhaus Deringer) for the Commonwealth Lawyers Association and two other

interveners.

Keir Starmer QC, Nicholas Grief, Mark Henderson, Joseph Middleton, Peter Morris and Laura Dubinsky

(Instructed by Leigh Day & Co) for Amnesty International and thirteen other interveners.

Hearing dates:
17, 18, 19 and 20 October 2005
ON
THURSDAY 8 DECEMBER 2005

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

A (FC) and others (FC) (Appellants) v. Secretary of State for the

Home Department (Respondent) (2004)

A and others (Appellants) (FC) and others v. Secretary of State for

the Home Department (Respondent)

(Conjoined Appeals)

[2005] UKHL 71

LORD BINGHAM OF CORNHILL

My Lords,

1. May the Special Immigration Appeals Commission (“SIAC”), a superior court of record established by statute, when hearing an appeal under section 25 of the Anti-terrorism, Crime and Security Act 2001 by a person certified and detained under sections 21 and 23 of that Act, receive evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities? That is the central question which the House must answer in these appeals. The appellants, relying on the common law of England, on the European Convention on Human Rights and on principles of public international law, submit that the question must be answered with an emphatic negative. The Secretary of State agrees that this answer would be appropriate in any case where the torture had been inflicted by or with the complicity of the British authorities. He further states that it is not his intention to rely on, or present to SIAC or to the Administrative Court in relation to control orders, evidence which he knows or believes to have been obtained by a third country by torture. This intention is, however, based on policy and not on any acknowledged legal obligation. Like any other policy it may be altered, by a successor in office or if circumstances change. The admission of such evidence by SIAC is not, he submits, precluded by law. Thus he contends for an affirmative answer to the central question stated above. The appellants’ case is supported by written and oral submissions made on behalf of 17 well-known bodies dedicated to the protection of human rights, the suppression of torture and maintenance of the rule of law.

2. The appeals now before the House are a later stage of the proceedings in which the House gave judgment in December 2004: A and others v Secretary of State for the Home Department, X and another v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68. In their opinions given then, members of the House recited the relevant legislative provisions and recounted the relevant history of the individual appellants up to that time. To avoid wearisome repetition, I shall treat that material as incorporated by reference into this opinion, and make only such specific reference to it as is necessary for resolving these appeals.

The Anti-terrorism, Crime and Security Act 2001

3. The 2001 Act was this country’s legislative response to the grave and inexcusable crimes committed in New York, Washington DC and Pennsylvania on 11 September 2001, and manifested the government’s determination to protect the public against the dangers of international terrorism. Part 4 of the Act accordingly established a new regime, applicable to persons who were not British citizens, whose presence in the United Kingdom the Secretary of State reasonably believed to be a risk to national security and whom the Secretary of State reasonably suspected of being terrorists as defined in the legislation. By section 21 of the Act he was authorised to issue a certificate in respect of any such person, and to revoke such a certificate. Any action of the Secretary of State taken wholly or partly in reliance on such a certificate might be questioned in legal proceedings only in a prescribed manner.

4. Sections 22 and 23 of the Act recognised that it might not, for legal or practical reasons, be possible to deport or remove from the United Kingdom a suspected international terrorist certified under section 21, and power was given by section 23 to detain such a person, whether temporarily or indefinitely. This provision was thought to call for derogation from the provisions of article 5(1)(f) of the European Convention, which it was sought to effect by a Derogation Order, the validity of which was one of the issues in the earlier stages of the proceedings.

5. Section 25 of the Act enables a person certified under section 21 to appeal to SIAC against his certification. On such an appeal SIAC must cancel the certificate if “(a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or (b) it considers that for some other reason the certificate should not have been issued”. If the certificate is cancelled it is to be treated as never having been issued, but if SIAC determines not to cancel a certificate it must dismiss the appeal. Section 26 provides that certifications shall be the subject of periodic review by SIAC.

SIAC

6. SIAC was established by the Special Immigration Appeals Commission Act 1997, which sought to reconcile the competing demands of procedural fairness and national security in the case of foreign nationals whom it was proposed to deport on the grounds of their danger to the public. Thus by section 1 (as amended by section 35 of the 2001 Act) SIAC was to be a superior court of record, now (since amendment in 2002) including among its members persons holding or having held high judicial office, persons who are or have been appointed as chief adjudicators under the Nationality, Immigration and Asylum Act 2002, persons who are or have been qualified to be members of the Immigration Appeal Tribunal and experienced lay members. All are appointed by the Lord Chancellor, who is authorised by section 5 of the Act to make rules governing SIAC’s procedure. Such rules, which must be laid before and approved by resolution of each House of Parliament, have been duly made. Such rules may, by the express terms of sections 5 and 6, provide for the proceedings to be heard without the appellant being given full particulars of the reason for the decision under appeal, for proceedings to be held in the absence of the appellant and his legal representative, for the appellant to be given a summary of the evidence taken in his absence and for appointment by the relevant law officer of a legally qualified special advocate to represent the interests of an appellant in proceedings before SIAC from which the appellant and his legal representative are excluded, such person having no responsibility towards the person whose interests he is appointed to represent.

7. The rules applicable to these appeals are the Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034). Part 3 of the Rules governs appeals under section 25 of the 2001 Act. In response to a notice of appeal, the Secretary of State, if he intends to oppose the appeal, must file a statement of the evidence on which he relies, but he may object to this being disclosed to the appellant or his lawyer (rule 16): if he objects, a special advocate is appointed, to whom this “closed material” is disclosed (rule 37). SIAC may overrule the Secretary of State’s objection and order him to serve this material on the appellant, but in this event the Secretary of State may choose not to rely on the material in the proceedings (rule 38). A special advocate may make submissions to SIAC and cross-examine witnesses when an appellant is excluded and make written submissions (rule 35), but may not without the directions of SIAC communicate with an appellant or his lawyer or anyone else once the closed material has been disclosed to him (rule 36). Rule 44(3) provides that SIAC “may receive evidence that would not be admissible in a court of law”. The general rule excluding evidence of intercepted communications, now found in section 17(1) of the Regulation of Investigatory Powers Act 2000, is expressly disapplied by section 18(1)(e) in proceedings before SIAC. SIAC must give written reasons for its decision, but insofar as it cannot do so without disclosing information which it would be contrary to the public interest to disclose, it must issue a separate decision which will be served only on the Secretary of State and the special advocate (rule 47).

The appellants and the proceedings

8. Of the 10 appellants now before the House, all save 2 were certified and detained in December 2001. The two exceptions are B and H, certified and detained in February and April 2002 respectively. Each of them appealed against his certification under section 25. Ajouaou and F voluntarily left the United Kingdom, for Morocco and France respectively, in December 2001 and March 2002, and their certificates were revoked following their departure. C’s certificate was revoked on 31 January 2005 and D’s on 20 September 2004. Abu Rideh was transferred to Broadmoor Hospital under sections 48 and 49 of the Mental Health Act 1983 in July 2002. Conditions for his release on bail were set by SIAC on 11 March 2005, and on the following day his certificate was revoked and a control order (currently the subject of an application for judicial review) was made under the Prevention of Terrorism Act 2005, enacted to replace Part 4 of the 2001 Act. Events followed a similar pattern in the cases of E, A and H, save that none was transferred to Broadmoor and notice of intention to deport (currently the subject of challenge) was given to A and H in August 2005, since which date they have been detained. The control orders made in their cases were discharged. B’s case followed a similar course to A’s, save that he was transferred to Broadmoor under sections 48 and 49 of the 1983 Act in September 2005. In the case of G, bail conditions were set by SIAC in April 2004 and revised on 10 March 2005. His certificate was revoked and a control order made under the 2005 Act on 12 March 2005. He was given notice of intention to deport (which he is challenging) on 11 August 2005, and he has since been detained. His control order was discharged.

9. The appellants’ appeals to SIAC under section 25 of the 2001 Act were heard in groups between May and July 2003. During these hearings argument and evidence were directed both to general issues relevant to all or most of the appeals and to specific issues relevant to individual cases. SIAC heard open evidence when the appellants and their legal representatives were present and closed evidence when they were excluded but special advocates were present. On 29 October 2003 judgments were given dismissing all the appeals. There were open judgments on the general and the specific issues, and there were also closed judgments. On the question central to these appeals to the House, raised in its present form when the proceedings before it were well advanced, SIAC gave an affirmative answer: the fact that evidence had, or might have been, procured by torture inflicted by foreign officials without the complicity of the British authorities was relevant to the weight of the evidence but did not render it legally inadmissible. In lengthy judgments given on 11 August 2004, a majority of the Court of Appeal (Pill and Laws LJJ, Neuberger LJ in part dissenting) upheld this decision: [2004] EWCA Civ 1123, [2005] 1 WLR 414. Despite the repeal of Part 4 of the 2001 Act by the 2005 Act, the appellants’ right of appeal to the House against the Court of Appeal’s decision under section 7 of the 1997 Act is preserved by section 16(4) of the Prevention of Terrorism Act 2005, and no question now arises as to the competency of any of these appeals.

THE COMMON LAW

10. The appellants submit that the common law forbids the admission of evidence obtained by the infliction of torture, and does so whether the product is a confession by a suspect or a defendant and irrespective of where, by whom or on whose authority the torture was inflicted.

11. It is, I think, clear that from its very earliest days the common law of England set its face firmly against the use of torture. Its rejection of this practice was indeed hailed as a distinguishing feature of the common law, the subject of proud claims by English jurists such as Sir John Fortescue (De Laudibus Legum Angliae, c. 1460-1470, ed S.B. Chrimes, (1942), Chap 22, pp 47-53), Sir Thomas Smith (De Republica Anglorum, ed L Alston, 1906, book 2, chap 24, pp 104-107), Sir Edward Coke (Institutes of the Laws of England (1644), Part III, Chap 2, pp 34- 36). Sir William Blackstone (Commentaries on the Laws of England, (1769) vol IV, chap 25, pp 320-321), and Sir James Stephen (A History of the Criminal Law of England, 1883, vol 1, p 222). That reliance was placed on sources of doubtful validity, such as chapter 39 of Magna Carta 1215 and Felton’s Case as reported by Rushworth (Rushworth’s Collections, vol (i), p 638) (see D. Jardine, A Reading on the Use of Torture in the Criminal Law of England Previously to the Commonwealth, 1837, pp 10-12, 60-62) did not weaken the strength of received opinion. The English rejection of torture was also the subject of admiring comment by foreign authorities such as Beccaria (An Essay on Crimes and Punishments, 1764, Chap XVI) and Voltaire (Commentary on Beccaria’s Crimes and Punishments, 1766, Chap XII). This rejection was contrasted with the practice prevalent in the states of continental Europe who, seeking to discharge the strict standards of proof required by the Roman-canon models they had adopted, came routinely to rely on confessions procured by the infliction of torture: see A L Lowell, “The Judicial Use of Torture” (1897) 11 Harvard L Rev 220-233, 290-300; J Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime (1977); D. Hope, “Torture” [2004] 53 ICLQ 807 at pp 810-811. In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.

12. Despite this common law prohibition, it is clear from the historical record that torture was practised in England in the 16th and early 17th centuries. But this took place pursuant to warrants issued by the Council or the Crown, largely (but not exclusively) in relation to alleged offences against the state, in exercise of the Royal prerogative: see Jardine, op cit.; Lowell, op cit., pp 290-300). Thus the exercise of this royal prerogative power came to be an important issue in the struggle between the Crown and the parliamentary common lawyers which preceded and culminated in the English civil war. By the common lawyers torture was regarded as (in Jardine’s words: op cit, pp 6 and 12) “totally repugnant to the fundamental principles of English law” and “repugnant to reason, justice, and humanity.” One of the first acts of the Long Parliament in 1640 was, accordingly, to abolish the Court of Star Chamber, where torture evidence had been received, and in that year the last torture warrant in our history was issued. Half a century later, Scotland followed the English example, and in 1708, in one of the earliest enactments of the Westminster Parliament after the Act of Union in 1707, torture in Scotland was formally prohibited. The history is well summarised by Sir William Holdsworth (A History of English Law, vol 5, 3rd ed (1945), pp 194-195, footnotes omitted):

“We have seen that the use of torture, though illegal by the common law, was justified by virtue of the extraordinary power of the crown which could, in times of emergency, override the common law. We shall see that Coke in the earlier part of his career admitted the existence of this extraordinary power. He therefore saw no objection to the use of torture thus authorized. But we shall see that his views as to the existence of this extraordinary power changed, when the constitutional controversies of the seventeenth century had made it clear that the existence of any extraordinary power in the crown was incompatible with the liberty of the subject. It is not surprising therefore, that, in his later works, he states broadly that all torture is illegal. It always had been illegal by the common law, and the authority under which it had been supposed to be legalized he now denied. When we consider the revolting brutality of the continental criminal procedure, when we remember that this brutality was sometimes practised in England by the authority of the extraordinary power of the crown, we cannot but agree that this single result of the rejection of any authority other than that of the common law is almost the most valuable of the many consequences of that rejection. Torture was not indeed practised so systematically in England as on the continent; but the fact that it was possible to have recourse to it, the fact that the most powerful court in the land sanctioned it, was bound sooner or later to have a demoralising effect upon all those who had prisoners in their power. Once torture has become acclimatized in a legal system it spreads like an infectious disease. It saves the labour of investigation. It hardens and brutalizes those who have become accustomed to use it.”

As Jardine put in (op. cit., p 13):

“As far as authority goes, therefore, the crimes of murder and robbery are not more distinctly forbidden by our criminal code than the application of the torture to witnesses or accused persons is condemned by the oracles of the Common law.”

This condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.

13. Since there has been no lawfully sanctioned torture in England since 1640, and the rule that unsworn statements made out of court are inadmissible in court was well-established by at latest the beginning of the 19th century (Cross & Tapper on Evidence, 10th edn (2004), p 582), there is an unsurprising paucity of English judicial authority on this subject. In Pearse v Pearse (1846) 1 De G & Sm 12, 28-29, 63 ER 950, 957, Knight Bruce V-C observed:

“The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination . . . Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much . . .”

That was not a case involving any allegation of torture. Such an allegation was however made in R (Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134 where the applicant for habeas corpus resisted extradition to India on the ground, among others, that the prosecution relied on a statement obtained by torture and since retracted. The Queen’s Bench Divisional Court (Rose LJ and Newman J) accepted the magistrate’s judgment that fairness did not call for exclusion of the statement, but was clear (para 60 of the judgment) that the common law and domestic statute law (section 78 of the Police and Criminal Evidence Act 1984) gave effect to the intent of article 15 of the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990, Cm 1775), “the Torture Convention”, to which more detailed reference is made below.

Involuntary confessions

14. The appellants relied, by way of partial analogy, on the familiar principle that evidence may not be given by a prosecutor in English criminal proceedings of a confession made by a defendant, if it is challenged, unless the prosecution proves beyond reasonable doubt that the confession had not been obtained by oppression of the person who made it or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof. This rule is now found in section 76 of the Police and Criminal Evidence Act 1984, but enacts a rule established at common law and expressed in such decisions as Ibrahim v The King [1914] AC 599, 609-610, R v Harz and Power [1967] AC 760, 817, and Lam Chi-ming v The Queen [1991] 2 AC 212, 220.

15. Plainly this rule provides an inexact analogy with evidence obtained by torture. It applies only to confessions by defendants, and it provides for exclusion on grounds very much wider than torture, or even inhuman or degrading treatment. But it is in my opinion of significance that the common law (despite suggestions to that effect by Parke B and Lord Campbell CJ in R v Baldry (1852) 2 Den 430, 445, 446-447, 169 ER 568, 574, 575, and by the Privy Council, in judgments delivered by Lord Sumner, in Ibrahim v The King [1914] AC 599, 610 and Lord Hailsham of St Marylebone in Director of Public Prosecutions v Ping Lin [1976] AC 574, 599-600) has refused to accept that oppression or inducement should go to the weight rather than the admissibility of the confession. The common law has insisted on an exclusionary rule. See, for a clear affirmation of the rule, Wong Kam-ming v The Queen [1980] AC 247.

16. In R v Warickshall (1783) 1 Leach 263, 168 ER 234, this rule was justified on the ground that involuntary statements are inherently unreliable. That justification is, however, inconsistent with the principle which the case established, that while an involuntary statement is inadmissible real evidence which comes to light as a result of such a statement is not. Two points are noteworthy. First, there can ordinarily be no surer proof of the reliability of an involuntary statement than the finding of real evidence as a direct result of it, as was so in Warickshall’s case itself, but that has never been treated as undermining the rule. Secondly, there is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement.

17. Later decisions make clear that while the inherent unreliability of involuntary statements is one of the reasons for holding them to be inadmissible there are other compelling reasons also. In Lam Chi-ming v The Queen [1991] 2 AC 212, 220, in a judgment delivered by Lord Griffiths, the Privy Council summarised the rationale of the exclusionary rule:

“Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.”

Lord Griffiths described the inadmissibility of a confession not proved to be voluntary as perhaps the most fundamental rule of the English criminal law. The rationale explained by Lord Griffiths was recently endorsed by the House in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513, paras 1, 7, 27, 45-46, 71. It is of course true, as counsel for the Secretary of State points out, that in cases such as these the attention of the court was directed to the behaviour of the police in the jurisdiction where the defendant was questioned and the trial was held. This was almost inevitably so. But it is noteworthy that in jurisdictions where the law is in general harmony with the English common law reliability has not been treated as the sole test of admissibility in this context. In Rochin v California 342 US 165 (1952) Frankfurter J, giving the opinion of the United States Supreme Court, held that a conviction had been obtained by “conduct that shocks the conscience” (p 172) and referred to a “general principle” that “States in their prosecutions respect certain decencies of civilized conduct” (p 173). He had earlier (p 169) referred to authority on the due process clause of the United States constitution which called for judgment whether proceedings “offend those canons of decency and fairness which express the notions of justice of English- speaking peoples even toward those charged with the most heinous offenses.” In The People (Attorney General) v O’Brien [1965] IR 142, 150, the Supreme Court of Ireland held, per Kingsmill Moore J, that “to countenance the use of evidence extracted or discovered by gross personal violence would, in my opinion, involve the State in moral defilement.” The High Court of Australia, speaking of a discretion to exclude evidence, observed (per Barwick CJ in R v Ireland (1970) 126 CLR 321, 335), that “Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.” In R v Oickle [2000] 2 SCR 3, a large majority of the Supreme Court of Canada cited with approval (para 66) an observation of Lamer J that “What should be repressed vigorously is conduct on [the authorities’] part that shocks the community” and considered (para 69) that while the doctrines of oppression and inducements were primarily concerned with reliability, the confessions rule also extended to protect a broader concept of voluntariness that focused on the protection of the accused’s rights and fairness in the criminal process.

Abuse of process

18. The appellants submit, in reliance on common law principles, that the obtaining of evidence by the infliction of torture is so grave a breach of international law, human rights and the rule of law that any court degrades itself and the administration of justice by admitting it. If, therefore, it appears that a confession or evidence may have been procured by torture, the court must exercise its discretion to reject such evidence as an abuse of its process.

19. In support of this contention the appellants rely on four recent English authorities. The first of these is R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42. This case was decided on the factual premise that the applicant had been abducted from South Africa and brought to this country in gross breach of his rights and the law of South Africa, at the behest of the British authorities, to stand trial here, and on the legal premise that a fair trial could be held. The issue, accordingly, was whether the unlawful abduction of the applicant was an abuse of the court’s process to which it should respond by staying the prosecution. The House held, by a majority, that it was. The principle laid down most clearly appears in the opinion of Lord Griffiths at pp 61-62:

“. . . In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. . . .”

Counsel for the Secretary of State points out that the members of the majority attached particular significance to the involvement of the British authorities in the unlawful conduct complained of, and this is certainly so: see the opinion of Lord Griffiths at p 62F, Lord Bridge of Harwich at pp 64G and 67G and Lord Lowry at pp 73G, 76F and 77D. But the appellants point to the germ of a wider principle. Thus Lord Lowry (p 74G) understood the court’s discretion to stay proceedings as an abuse of process to be exercisable where either a fair trial is impossible or “it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case.” He opined (p 76C):

“that the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s process has been abused.”

Lord Lowry’s opinion did not earn the concurrence of any other member of the House, but the appellants contend that this wider principle is applicable in the extreme case of evidence procured by torture. In United States v Toscanino 500 F 2d 267 (1974) the US Court of Appeals reached a decision very similar to Bennett.

20. In R v Latif [1996] 1 WLR 104 the executive misconduct complained of was much less gross than in Bennett, and the outcome was different. Speaking for the House, Lord Steyn (at pp 112-113) acknowledged a judicial discretion to stay proceedings as an abuse if they would “amount to an affront to the public conscience” and where “it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place.” In that case the conduct complained of was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed.

21. The premises of the Court of Appeal’s decision in R v Mullen [2000] QB 520 were similar to those in Bennett, save that a fair trial had already taken place and Mullen had already been convicted of very serious terrorist offences, and sentenced to 30 years’ imprisonment, before he was alerted to the misconduct surrounding his abduction from Zimbabwe. Despite the fairness of the trial, his conviction was quashed. Giving the reserved judgment of the court, Rose LJ said (at pp 535-536):

“This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the I.R.A. and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight must be attached.”

22.       The fourth authority relied on for its statements of principle was

R v Looseley, Attorney General’s Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060, which concerned cases of alleged entrapment. At the outset of his opinion (para 1) my noble and learned friend Lord Nicholls of Birkenhead declared that:

“every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state.”

A stay is granted in a case of entrapment not to discipline the police (para 17) but because it is improper for there to be a prosecution at all for the relevant offence, having regard to the state’s involvement in the circumstances in which it was committed. To prosecute in a case where the state has procured the commission of the crime is (para 19) “unacceptable and improper” and “an affront to the public conscience.” Such a prosecution would not be fair in the broad sense of the word. My noble and learned friend Lord Hoffmann, having referred to Canadian authority and to Bennett, accepted Lord Griffiths’ description of the power to stay in the case of behaviour which threatened basic human rights or the rule of law as (para 40) “a jurisdiction to prevent abuse of executive power”.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

23. If, contrary to their submission (and to the opinion of the Divisional Court in R (Saifi) v Governor of Brixton Prison: see para 13 above) the common law and section 78 of the 1984 Act are not, without more, enough to require rejection of evidence which has or may have been procured by torture, whether or not with the complicity of the British authorities, the appellants submit that the European Convention compels that conclusion.

24. It is plain that SIAC (and, for that matter, the Secretary of State) is a public authority within the meaning of section 6 of the Human Rights Act 1998 and so forbidden to act incompatibly with a Convention right. One such right, guaranteed by article 3, is not to be subjected to torture or to inhuman or degrading treatment. This absolute, non- derogable prohibition has been said (Soering v United Kingdom (1989) 11 EHRR 439, para 88) to enshrine “one of the fundamental values of the democratic societies making up the Council of Europe”. The European Court has used such language on many occasions (Aydin v Turkey (1997) 25 EHRR 251, para 81).

25. Article 6 of the Convention guarantees the right to a fair trial. Different views have in the past been expressed on whether, for purposes of article 6, the proceedings before SIAC are to be regarded as civil or criminal. Rather than pursue this debate the parties are agreed that the appellants’ challenge to their detention pursuant to the Secretary of State’s certification in any event falls within article 5(4). That provision entitles anyone deprived of his liberty by arrest or detention to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. It is well-established that such proceedings must satisfy the basic requirements of a fair trial: Garcia Alva v Germany (2001) 37 EHRR 335; R (West) v Parole Board, R (Smith) v Parole Board (No 2) [2005] UKHL 1, [2005] 1 WLR 350. Sensibly, therefore, the parties are agreed that the applicability of article 6 should be left open and the issue resolved on the premise that article 5(4) applies.

26. The Secretary of State submits that under the Convention the admissibility of evidence is a matter left to be decided under national law; that under the relevant national law, namely, the 2001 Act and the Rules, the evidence which the Secretary of State seeks to adduce is admissible before SIAC; and that accordingly the admission of this evidence cannot be said to undermine the fairness of the proceedings. I shall consider the effect of the statutory scheme in more detail below. The first of these propositions is, however, only half true. It is correct that the European Court of Human Rights has consistently declined to articulate evidential rules to be applied in all member states and has preferred to leave such rules to be governed by national law: see, for example, Schenk v Switzerland (1988) 13 EHRR 242, para 46; Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288, para 48; Khan v United Kingdom (2000) 31 EHRR 1016, para 34. It has done so even where, as in Khan, evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. But in these cases and others the court has also insisted on its responsibility to ensure that the proceedings, viewed overall on the particular facts, have been fair, and it has recognised that the way in which evidence has been obtained or used may be such as to render the proceedings unfair. Such was its conclusion in Saunders v United Kingdom (1996) 23 EHRR 313, a case of compulsory questioning, and in Teixeira de Castro v Portugal (1998) 28 EHRR 101, para 39, a case of entrapment. A similar view would have been taken by the Commission in the much earlier case of Austria v Italy (1963) 6 YB 740, 784, had it concluded that the victims whom Austria represented had been subjected to maltreatment with the aim of extracting confessions. But the Commission observed that article 6(2) could only be regarded as being violated if the court subsequently accepted as evidence any admissions extorted in this manner. This was a point made by my noble and learned friend Lord Hoffmann in the much more recent devolution case of Montgomery v H M Advocate, Coulter v H M Advocate [2003] 1 AC 641, 649, when he observed:

“Of course events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies not in the use of torture

(which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of article 3 but no breach of article 6(1).”

Lord Hoffmann, in R v Governor of Brixton Prison, Ex p Levin [1997] AC 741, 748, did not exclude the possibility (he did not have to decide) that evidence might be rejected in extradition proceedings if, though technically admissible, it had been obtained in a way which outraged civilised values. Such was said to be the case in R (Ramda) v Secretary of State for the Home Department [2002] EWHC 1278 (Admin), unreported, 27 June 2002, where the applicant resisted extradition to France on the ground that the evidence which would be relied on against him at trial had been obtained by torture and that he would be unable to resist its admission. The Queen’s Bench Divisional Court concluded (para 22) that if these points were made out, his trial would not be fair and the Secretary of State would be effectively bound to refuse to extradite him. In the very recent case of Mamatkulov and Askarov v Turkey (App Nos 46827/99 and 46951/99, unreported, 4 February 2005) Judges Bratza, Bonello and Hedigan delivered a joint partly dissenting opinion, in the course of which they held i n paras 15-17:

“15. As in the case of the risk of treatment proscribed by Article 3 of the Convention, the risk of a flagrant denial of justice in the receiving State for the purposes of Article 6 must be assessed primarily by reference to the facts which were known or should have been known by the respondent State at the time of the extradition.

16. The majority of the Court acknowledge that, in the light of the information available, there ‘may have been reasons for doubting at the time’ that the applicants would receive a fair trial in Uzbekistan (judgment, § 91). However, they conclude that there is insufficient evidence to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice within the meaning of the Court’s Soering judgment.

17. We consider, on the contrary, that on the material available at the relevant time there were substantial grounds not only for doubting that the applicants would receive a fair trial but for concluding that they ran a real risk of suffering a flagrant denial of justice. The Amnesty International briefing document afforded, in our view, credible grounds for believing that self-incriminating

evidence extracted by torture was routinely used to secure guilty verdicts and that suspects were very frequently denied access to a lawyer of their choice, lawyers often being given access to their client by law enforcement officials after the suspect had been held in custody for several days, when the risk of torture was at its greatest. In addition, it was found that in many cases law enforcement officials would only grant access to a lawyer after the suspect had signed a confession and that meetings between lawyers and clients, once granted, were generally infrequent, defence lawyers rarely being allowed to be present at all stages of the investigation.”

The approach of these judges is consistent with the even more recent decision of the Court in Harutyunyan v Armenia (App No 36549/03, unreported, 5 July 2005) where in paras 2(b) and (f) the Court ruled:

“(b) As to the complaint about the coercion and the subsequent use in court of the applicant’s confession statement, the Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

(f) As to the complaint about the use in court of witness statements obtained under torture, the Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.”

Had the Court found that the complaints of coercion and torture appeared to be substantiated, a finding that article 6(1) had been violated would, in my opinion, have been inevitable. As it was, the Court did not rule that these complaints were inadmissible. Nor did it dismiss them. It adjourned examination of the applicant’s complaints concerning the alleged violation of his right to silence and the admission in court of evidence obtained under torture.

PUBLIC INTERNATIONAL LAW

27. The appellants’ submission has a further, more international, dimension. They accept, as they must, that a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law: J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418; R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696; R v Lyons [2002] UKHL 44, [2003] 1 AC 976. But they rely on the well- established principle that the words of a United Kingdom statute, passed after the date of a treaty and dealing with the same subject matter, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it: Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771. The courts are obliged under section 2 of the 1998 Act to take Strasbourg jurisprudence into account in connection with a Convention right, their obligation under section 3 is to interpret and give effect to primary and subordinate legislation in a way which is compatible with Convention rights so far as possible to do so and it is their duty under section 6 not to act incompatibly with a Convention right. If, and to the extent that, development of the common law is called for, such development should ordinarily be in harmony with the United Kingdom’s international obligations and not antithetical to them. I do not understand these principles to be contentious.

28. The appellants’ argument may, I think, be fairly summarised as involving the following steps:

(1)	The European Convention is not to be interpreted in a vacuum, but taking account of other international obligations to which member states are subject, as the European Court has in practice done.

(2) The prohibition of torture enjoys the highest normative force

recognised by international law.

(3)	The international prohibition of torture requires states not merely to refrain from authorising or conniving at torture but also to suppress and discourage the practice of torture and not to condone it.

(4) Article 15 of the Torture Convention requires the exclusion of statements made as a result of torture as evidence in any proceedings.

(5) Court decisions in many countries have given effect directly or

indirectly to article 15 of the Torture Convention.

(6)	The rationale of the exclusionary rule in article 15 is found not only in the general unreliability of evidence procured by torture but also in its offensiveness to civilised values and its degrading effect on the administration of justice.

(7) Measures directed to counter the grave dangers of international terrorism may not be permitted to undermine the international prohibition of torture.

It is necessary to examine these propositions in a little detail.

(1)	Interpretation of the Convention in a wider international context.

29. Article 31 of the Vienna Convention on the Law of Treaties, reflecting principles of customary international law, provides in article 31(3)(c) that in interpreting a treaty there shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties. The European Court has recognised this principle (Golder v United Kingdom (1975) 1 EHRR 524, para 29, HN v Poland (Application No 77710/01, 13 September 2005, unreported, para 75)), and in Al-Adsani v United Kingdom (2001) 34 EHRR 273, para 55, it said (footnotes omitted):

“55. The Court must next assess whether the restriction was proportionate to the aim pursued. It recalls that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, and that Article 31(3)(c) of that treaty indicates that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’. The Convention, in including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.”

The Court has in its decisions invoked a wide range of international instruments, including the United Nations Convention on the Rights of the Child 1989 and the Beijing Rules (V v United Kingdom (1999) 30

EHRR 121, paras 76-77), the Council of Europe Standard Minimum Rules for the Treatment of Prisoners (S v Switzerland (1991) 14 EHRR 670, para 48) and the 1975 Declaration referred to in para 31 below (Ireland v United Kingdom (1978) 2 EHRR 25, para 167). More pertinently to these appeals, the Court has repeatedly invoked the provisions of the Torture Convention: see, for example, Aydin v Turkey (1997) 25 EHRR 251, para 103; Selmouni v France (1999) 29 EHRR 403, para 97. In Soering v United Kingdom (1989) 11 EHRR 439, para 88, the Court said (footnotes omitted):

“Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition on torture and on inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard.

The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3. That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that ‘no State Party shall . . . extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention, that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he

would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.”

(2)	The international prohibition of torture.

30. The preamble to the United Nations Charter (1945) recorded the determination of member states to reaffirm their faith in fundamental human rights and the dignity and worth of the human person and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. The Charter was succeeded by the Universal Declaration of Human Rights 1948, the European Convention 1950 and the International Covenant on Civil and Political Rights 1966, all of which (in articles 5, 3 and 7 respectively, in very similar language) provided that no one should be subjected to torture or inhuman or degrading treatment.

31. On 9 December 1975 the General Assembly of the United Nations, without a vote, adopted Resolution 3452 (XXX), a Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This included (in article 1) a definition of torture as follows:

“Article 1

1.         For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to,

lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

2.         Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”

Articles 2-4 provided as follows:

“Article 2
Any act of torture or other cruel, inhuman or degrading
treatment or punishment is an offence to human dignity
and shall be condemned as a denial of the purposes of the
Charter of the United Nations and as a violation of the
human rights and fundamental freedoms proclaimed in the

Universal Declaration of Human Rights.

Article 3
No State may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment. Exceptional circumstances such as a state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.
Article 4

Each State shall, in accordance with the provisions of this Declaration, take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction.”

Action was then taken to prepare a convention. This action culminated in the Torture Convention, which came into force on 26 June 1987. All member states of the Council of Europe are members with the exception of Moldova, Andorra and San Marino, the last two of which have been signed but not yet ratified.

32.       The Torture Convention contained, in article 1, a definition of

“Article 1

1.  For the purposes of this Convention, ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2.  This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”

It is noteworthy that the torture must be inflicted by or with the complicity of an official, must be intentional, and covers treatment inflicted for the purpose of obtaining information or a confession. Articles 2, 3 and 4 provide:

“Article 2

1.  Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2.  No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3.  An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3

1.  No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2.  For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a

consistent pattern of gross, flagrant or mass violations

of human rights.

Article 4

1.   Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2.  Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”

33. It is common ground in these proceedings that the international prohibition of the use of torture enjoys the enhanced status of a jus cogens or peremptory norm of general international law. For purposes of the Vienna Convention, a peremptory norm of general international law is defined in article 53 to mean “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, 197-199, the jus cogens nature of the international crime of torture, the subject of universal jurisdiction, was recognised. The implications of this finding were fully and authoritatively explained by the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija [1998] ICTY 3, 10 December 1998 in a passage which, despite its length, calls for citation (footnotes omitted):

“3.	Main Features of the Prohibition Against Torture in International Law.

147. There exists today universal revulsion against torture: as a USA Court put it in Filartiga v. Peña-Irala, ‘the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind’. This revulsion, as well as the importance States attach to the eradication of torture, has led to the cluster of treaty and customary rules on torture acquiring a particularly high status in the international normative system, a status similar to that of principles such as those prohibiting genocide, slavery, racial discrimination, aggression, the acquisition of territory by force and the forcible suppression of the right of peoples to self- determination. The prohibition against torture exhibits

three important features, which are probably held in common with the other general principles protecting fundamental human rights.

(a)	The Prohibition Even Covers Potential Breaches.

148. Firstly, given the importance that the international community attaches to the protection of individuals from torture, the prohibition against torture is particularly stringent and sweeping. States are obliged not only to prohibit and punish torture, but also to forestall its occurrence: it is insufficient merely to intervene after the infliction of torture, when the physical or moral integrity of human beings has already been irremediably harmed. Consequently, States are bound to put in place all those measures that may pre-empt the perpetration of torture. As was authoritatively held by the European Court of Human Rights in Soering, international law intends to bar not only actual breaches but also potential breaches of the prohibition against torture (as well as any inhuman and degrading treatment). It follows that international rules prohibit not only torture but also (i) the failure to adopt the national measures necessary for implementing the prohibition and (ii) the maintenance in force or passage of laws which are contrary to the prohibition.

149. Let us consider these two aspects separately. Normally States, when they undertake international obligations through treaties or customary rules, adopt all the legislative and administrative measures necessary for implementing such obligations. However, subject to obvious exceptions, failure to pass the required implementing legislation has only a potential effect: the wrongful fact occurs only when administrative or judicial measures are taken which, being contrary to international rules due to the lack of implementing legislation, generate State responsibility. By contrast, in the case of torture, the requirement that States expeditiously institute national implementing measures is an integral part of the international obligation to prohibit this practice. Consequently, States must immediately set in motion all those procedures and measures that may make it possible, within their municipal legal system, to forestall any act of torture or expeditiously put an end to any torture that is occurring.

155. I agree with your Lordships that consideration of this question by the conventional approach to the burden of proof is both unhelpful and inappropriate. It seems to me rather to equate to the process described by Lord Bingham in R v Lichniak [2002] UKHL 47, [2003] 1 AC 903 at para 16 as “an administrative process requiring [the board] to consider all the available material and form a judgment”; cf Re McClean [2004] NICA 14, para 77, where McCollum LJ said of a similar process that it was “not the establishment of a concrete fact but rather the formulation of an opinion or impression”, which was not capable of proof in the manner usually contemplated by the law of evidence. I accordingly agree with the view expressed by Lord Bingham (para 56 of his opinion) and Lord Hope (para 116) that once the appellant has raised in a general way a plausible reason why evidence adduced may have been procured by torture, the onus passes to SIAC to consider the suspicion, investigate it if necessary and so far as practicable and determine by reference to the appropriate test whether the evidence should be admitted and taken into account.

156. What that test should be is the issue on which your Lordships are divided. Lord Bingham is of the opinion (para 56) that if SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit it. Lord Hope, on the other hand, has propounded a different test, which he describes as putting the question which SIAC has to decide positively rather than negatively. It has to be established on the balance of probabilities that the particular piece of evidence was obtained by the use of torture; and unless it has in SIAC’s judgment been so established, after it has completed any investigation carried out and weighed up the material before it, then it must not reject it on that ground.

157. I have found the choice between these tests the most difficult part of this case. Lord Bingham has cogently described the difficulties facing an appellant before SIAC and the potential injustice which he sees as the consequence if the Hope test is adopted. Lord Hope for his part places some emphasis on the severity of the practical problems which would face SIAC in negativing the use of torture to obtain any given statement, and expresses his concern that it would constitute “an insuperable barrier for those who are doing their honest best to protect us”. In support of his view Lord Hope points in particular to the terms of article 15 of UNCAT, which requires states to ensure that any statement “which is established to have been made as a result of torture” shall not be invoked in any proceedings.

158. After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted by SIAC in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases if the members of SIAC use their considerable experience and their discernment wisely in scrutinising the provenance of statements propounded, as I am confident they will. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope’s view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out.

159.     On this basis I would accordingly allow the appeals and make the

order proposed.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

160. Torture is an unqualified evil. It can never be justified. Rather it must always be punished. So much is not in doubt. It is proclaimed by the Convention against Torture and many other international instruments and now too by section134 of the Criminal Justice Act 1988. But torture may on occasion yield up information capable of saving lives, perhaps many lives, and the question then inescapably arises: what use can be made of this information? Unswerving logic might suggest that no use whatever should be made of it: a revulsion against torture and an anxiety to discourage rather than condone it perhaps dictate that it be ignored: the ticking bomb must be allowed to tick on. But there are powerful countervailing arguments too: torture cannot be undone and the greater public good thus lies in making some use at least of the information obtained, whether to avert public danger or to bring the guilty to justice.

161. Several of your Lordships have remarked on the tensions in play and have noted the balances struck by the law, different balances according to whether one is focusing on the executive or the judicial arm of the state. Essentially it comes to this. Two types of information are involved: first, the actual statement extracted from the detainee under torture (“the coerced statement”); second, the further information to which the coerced statement, if followed up, may lead (“the fruit of the poisoned tree” as it is sometimes called). Generally speaking it is accepted that the executive may make use of all information it acquires: both coerced statements and whatever fruits they are found to bear. Not merely, indeed, is the executive entitled to make use of this information; to my mind it is bound to do so. It has a prime responsibility to safeguard the security of the state and would be failing in its duty if it ignores whatever it may learn or fails to follow it up. Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this). But nor need it sever relations even with those states whose interrogation practices are of most concern. So far as the courts are concerned, however, the position is different. Generally speaking the court will shut its face against the admission in evidence of any coerced statement (that of a third party is, of course, in any event inadmissible as hearsay); it will, however, admit in evidence the fruit of the poisoned tree. The balance struck here (“a pragmatic compromise” as my noble and learned friend Lord Bingham of Cornhill describes it at para 16 of his opinion) appears plainly from section 76 of the Police and Criminal Evidence Act 1984. There is, moreover, this too to be said: whereas coerced statements may be intrinsically unreliable, the fruits they yield will have independent evidential value.

162. All this is entirely understandable. As several of your Lordships have observed, the functions and responsibilities of the executive and the judiciary are entirely different, a difference reflected indeed in article 15 of the Torture Convention itself. Article 15’s concern is with the use of “any statement . . . made as a result of torture . . . as evidence in any proceedings”. It creates no bar to the use of coerced statements as a basis for executive action. And, of course, it says nothing whatever about the fruits of the poisoned tree.

163. None of this is contentious. The dispute arising on these appeals concerns only a single, comparatively narrow issue: the use of certain coerced statements on appeals before the Special Immigration Appeals Commission (SIAC) under section 25 of the Anti-terrorism, Crime and Security Act 2001 (the 2001 Act). The statements in question are those made by detainees abroad, coerced by the authorities of a foreign state without the complicity of any British official. It is the Crown’s case that strictly speaking these are admissible in evidence before SIAC, a tribunal charged not with adjudicating upon the appellant’s guilt but only with deciding whether reasonable grounds exist for suspecting him to be an international terrorist and for believing his presence here to be a risk to national security.

164. In common with the other members of this Committee and essentially for the reasons they give, I too would reject the Crown’s contention. In question here is not the power of the executive but rather the integrity of the judicial process. SIAC is a court of law (indeed a superior court of record). And as was pointed out in M v Secretary of State for the Home Department [2004] 2 All ER 863, SIAC’s function on an appeal under section 25 is not to review the exercise by the Secretary of State of his power of certification under section 21, but rather to decide for itself whether, at the time of the hearing, there are “reasonable grounds” for the suspicion and belief required under section 21. True it is that the statements in question are sought to be relied upon not to convict the appellant of any offence but rather to found such suspicion and belief as would justify his continued detention under section 23. It is difficult to see, however, why this consideration should strengthen rather than weaken the Crown’s argument: no court will readily lend itself to indefinite detention without charge, let alone trial. (Parliament, indeed, has recently demonstrated its own unease in this area by refusing to legislate for up to 90 days detention of arrested terrorist suspects prior to charge.) At all events, for the detention to continue under the 2001 Act, Parliament required that SIAC must independently sanction this deprivation of liberty.

165. In short, I would hold that SIAC could never properly uphold a section 23 detention order where the sole or decisive evidence supporting it is a statement established to have been coerced by the use of torture. To hold otherwise would be, as several of your Lordships have observed, to bring British justice into disrepute. And this is so notwithstanding that the appellant was properly certified and detained by the Secretary of State in the interests of national security, notwithstanding that the legislation (now, of course, repealed) allowed the appellant’s continuing detention solely on the ground of suspicion and belief, notwithstanding that the incriminating coerced statement was made not by the appellant himself but by some third party, and notwithstanding that it was made abroad and without the complicity of any British official.

166. To what extent, it is perhaps worth asking, does such a ruling impede the executive in its vitally important task of safeguarding the country so far as possible against terrorism? To my mind to a very limited extent indeed. In the first place it is noteworthy that the ruling will merely substitute an exclusionary rule of evidence for the Secretary of State’s own publicly stated policy not in any event to rely on evidence which he knows or believes to have been obtained by torture abroad. Secondly, the intelligence case against the suspect would, we are told, ordinarily consist of material from a large number of sources— a “mosaic” or “jigsaw” of information as it has been called; it is most unlikely that the sole or decisive evidence will be a coerced statement. It follows, therefore, that the possibility of a detention order under section 23 being discharged on a section 25 appeal to SIAC because of the rejection of a coerced statement is comparatively remote. And certainly there is nothing in SIAC’s open determination in relation to E’s appeal (the first in which Mr Emmerson QC submitted that information extracted by torture should be excluded by rule of law rather than merely afforded less weight) to suggest the contrary:

“[T]here is no sufficient material which persuades us that we can conclude either that torture or other treatment contrary to article 3 of the ECHR was used or even that it may have been used…”

167. But theoretically it could happen and in that event, it is suggested, the Secretary of State would be disadvantaged in two distinct ways. Most obviously, perhaps, he would be unable to continue to detain someone whose detention he judged necessary on grounds of national security. To the straightforward response “so be it, the rule of law so requires”, I would add this. There is a certain unreality in discussing the discharge of detention orders as the legislation now stands. The power to detain suspected international terrorists under section 23 of the 2001 Act is now a matter of history. In December 2004 your Lordships in A v Secretary of State for the Home Department [2005] 2 AC 68, declared section 23 to be incompatible with articles 5 and 14 of the European Convention on Human Rights and with effect from 14 March 2005 the whole of Part 4 of the Act was repealed by section 16 of the Prevention of Terrorism Act 2005 (save only with regard to extant appeal proceedings, preserved by section 16(4) of the 2005 Act).

168. No doubt the effects of your Lordships’ judgment will spill over into other court proceedings designed to provide a judicial check on the exercise of other executive powers to place constraints of one sort or another on terrorist suspects in the interests of national security—most notably appeals to SIAC under section 2 of the Special Immigration Appeals Commission Act 1997 against deportation orders, and statutory applications to the Administrative Court challenging control orders under the Prevention of Terrorism Act 2005. For the reasons already given, however, it seems unlikely that the exclusionary rule concerning coerced statements, even assuming that it applies equally in these related contexts (which was not the subject of specific argument before us) will affect many, if any, individual cases.

169. The other way in which it has been suggested that the Secretary of State may be disadvantaged by your Lordships’ ruling is in the event that he has to defend himself against a civil claim, for example for false imprisonment. With regard to this possibility I find myself in strong agreement with the view expressed by Lord Nicholls of Birkenhead in para 72 of his opinion: it would make no sense to allow (indeed encourage) the Secretary of State to make use of all information available to him in deciding how to exercise his executive power in the public interest and then prohibit his reliance upon part of that information (coerced statements) when faced with a claim for false imprisonment. Rather he should be permitted to refer to such statements, not of course, in reliance upon their truth, but merely to explain his state of mind at the time he took the action impugned.

170. Perhaps, however, a better answer to this particular difficulty is

after all to be found in section 21(9) of the 2001 Act (although no
argument was in fact addressed upon it):

“An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under - (a) section 25 or 26, or (b) section 2 of the Special Immigration Appeals Commission Act 1997.”

A comparable provision with regard to control orders is, one notes, to be found in section 11(1) of the 2005 Act.

171. It follows from all this that your Lordships’ decision on these appeals should not be seen as a significant setback to the Secretary of State’s necessary efforts to combat terrorism. Rather it confirms the right of the executive to act on whatever information it may receive from around the world, while at the same time preserving the integrity of the judicial process and vindicating the good name of British justice.

172. I turn finally to the burden of proof. I agree with Lord Hope of Craighead (at para 121 of his opinion) that SIAC should ask itself whether it is “established, by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture.” Only if this is established is the statement inadmissible. If, having regard to the evidence of a particular state’s general practices and its own inquiries, SIAC were to conclude that there is no more than a possibility that the statement was obtained by torture, then in my judgment this would not have been established and the statement would be admissible.

173. The difficulty I have with the “real risk” test espoused by certain of your Lordships, apart from the fact that classically such a test addresses future dangers (as, for example, the risk of torture or other article 3 ill-treatment which the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439 understandably refused to countenance) rather than past uncertainties, is that it would require SIAC to ignore entirely (rather than merely discount to whatever extent it thought appropriate) any statement not proved to have been made voluntarily. That, at least, is how I understand the “real risk” test to apply: if SIAC were left in any substantial (ie other than minimal) doubt as to whether torture had been used, the statement would be shut out, however reliable it appeared to be and notwithstanding that SIAC concluded that it had probably been made voluntarily. That seems to me a surprising and unsatisfactory test. If I have misunderstood the proposed test and if all that it involves is SIAC shutting out a statement whenever they simply cannot decide one way or the other on the balance of probabilities whether it has been extracted by torture (a rare case one would suppose given the expertise of the tribunal) then my difficulty would be substantially lessened although I would still prefer the test favoured by Lord Hope of Craighead and Lord Rodger of Earlsferry.

174. It is one thing to say, as in Soering, that someone cannot be deported whilst there exists the possibility that he may be tortured—or, indeed, as the dissentient minority said in Mamatkulov and Askarov v Turkey (Application Nos 46827/99 and 46951/99, unreported, 4 February 2005), if they run a real risk of suffering a flagrant denial of justice— quite another to say that the integrity of the court’s processes and the good name of British justice requires that evidence be shut out whenever it cannot be positively proved to have been given voluntarily.

175. For these reasons, and for the reasons given by Lord Bingham

and others of my noble and learned friends, I too would allow these
appeals and make the order proposed.