“In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a 'living tree capable of growth and expansion within its natural limits' (Edwards v Attorney General for Canada [1930] AC 124, 136 per Lord Sankey LC), but those limits will often call for very careful consideration.”
269. To my mind this reasoning is in line with what was said by Dawson J in A v Minister for Immigration and Ethnic Affairs in the High Court of Australia:
“[T]he purpose of an instrument may... be pursued in a limited way, reflecting the accommodation of the differing viewpoints...” (my emphasis).
Accordingly we should be very wary of expanding treaty obligations into territory where it is by no means clear that the founders meant to tread.
270. In my judgment, then, just as Mr Emmerson's reliance on CAT article 15 in the common law context proves too much, so also in the context of ECHR Article 6(1). A general requirement to interpret Article 6 in harmony with other rules of international law does not make compliance with these other rules a condition of compliance with Article 6. That proves too much; it makes for too exuberant a reading of the Convention, a reading which cannot sit with the strictures of Lord Bingham and Dawson J which I have cited. It is not, in my judgment, a systematic condition of compliance with Article 6 that CAT Article 15 should also be complied with.
271. Nothing in the jurisprudence of the Committee against Torture militates against this conclusion. I accept, as Mr Emmerson submitted, that PE v France shows that the Committee considered that CAT Article 15 applied, or was capable of applying, in proceedings in State A in which evidence obtained by torture in State B was sought to be adduced. The case also suggests (paragraph 6.6) that it is for the author of any complaint brought under Article 15 to demonstrate that it is well-founded; and that requires (as appears from the words of the Article) that it be established that the statement in question was obtained by torture. The case is by no means an engine that begins to drive CAT Article 15 into the substance of ECHR Article 6.
272. There remains, on this part of the case, what I have called Mr Emmerson's subsidiary argument, which runs as follows. (1) Admission of evidence of the kind objected to would violate the United Kingdom's obligations under CAT Article 15. But (2) compliance with our international obligations (other than those arising under ECHR) is a condition of a lawful derogation under ECHR Article 15. (3) We should therefore construe ATCSA as not permitting the admission of such evidence; it is to be presumed that the derogation was lawful, and the statute should be interpreted (so far as possible) to promote that result.
273. I mean no discourtesy to Mr Emmerson, nor to his careful written submissions delivered after the close of the hearing, in dismissing this argument out of hand. If it were viable at all, it would require the demonstration of actual violations of Article 15 by the United Kingdom. None are demonstrated. That aside, given the outcome in this court of A, X, Y, we must I think proceed on the footing that the Derogation Order was lawful. On that basis I cannot think it right that within the four corners of these appeals we should contemplate, and pass judgment on, a contingent set of circumstances on one view of which the Derogation Order might, after all, turn out not to be lawful. This argument is, I fear, nothing but an attempt to municipalise our obligation under CAT Article 15 and that is something that only the legislature can do.
274. Before leaving the torture issue, I should notice the fact that Mr Emmerson was at a late stage inclined to advance a submission to the effect that CAT Article 15 expressed a principle of international customary law, and as such was part of the fabric of the common law. That would have required a very substantial enquiry, legal and historical. The ground had not been prepared for it, and we did not permit Mr Emmerson to embark upon it.
275. As I have shown, this point only arises in the cases of Ajouaou and F. I will not set out the statutory materials again. In my judgment SIAC were right to hold that the revocation of the certificates by the Secretary of State deprived them of jurisdiction to continue to hear the appeals. My reasons are as follows. First, s.25(2)(a) is cast in the present tense. SIAC are thus obliged to look at the case as at the date it comes before them. But if there is then no longer an extant certificate, the exercise simply cannot be performed. Either s.25(2)(a) has to be understood as referring to some other date, or it must be concluded that SIAC is only to consider s.25(2)(b). Such recourses are in my judgment entirely illegitimate because they involve re-writing the statute. (I will come to HRA s.3 shortly.) Secondly, the only person competent to launch an appeal under s.25 is a “suspected international terrorist” as defined in s.21(5): “a person certified under subsection (1)”. But of course a person whose certificate is revoked is no longer within the definition. Thirdly, s.26(5)(a), dealing with the review of a certificate, is expressed in just the same language as s.25(2)(a). If s.25(2)(a) bites on a revoked certificate, I should have thought that s.26(5)(a) would do the same. But no one, I think, contends for so eccentric a result.
276. In short the structure of s.25 appeals demonstrates that only an appeal against a live certificate is contemplated. As for HRA s.3, I have to say that in my view the language of s.25 and associated provisions cannot bear the amount of re-writing that would be necessary to permit an appeal against a revoked certificate, without the court legislating for itself. As regards the ECHR rights which might require an appeal against a revoked certificate, I make only two observations. First, a previously certified person who seeks to return to this country would be entitled to have a proper decision made on the merits of his claim to enter. I do not see why the fact of previous certification would entitle or require the Secretary of State to close his ears to anything the applicant might say. Secondly, I am not clearly persuaded that the terms of s.21(9) would necessarily suffice to prevent a later challenge, in the case of a person whose certificate had been revoked, to the legal merits of his past detention under s.23. But we have not heard full argument on the question and I express no concluded view.
INVESTIGATION AND DISCLOSURE
277. These are Mr Gill's remaining points. First, I would with respect reject out of hand the suggestion that the Secretary of State is required to undertake positive investigations, in the case of any prospective detainee, as to whether any other country was prepared to receive him before his detention could be justified on that footing that he could not be removed from the United Kingdom. I cannot see any potential legal source of such an obligation. I cannot think that such a prospective obligation could live with the Secretary of State's duty under s.21 which in some cases might require him to act urgently. The submission is not in the real world.
278. As for Mr Gill's broader submissions on investigation and disclosure, SIAC dealt at some length with such concerns as were expressed before it. I must set out what they said in the open generic determination:
“51. It may be useful at this juncture to deal with two features of the Respondent's evidence which arose on a number of occasions: investigations and disclosure. Suspicions were aroused by activities for which sometimes an explanation was offered by the Appellants; sometimes they may have not been aware of them because the evidence was only dealt with in closed session. On a number of occasions, an obvious line of inquiry was not pursued either by the police or the Security Services; we exclude those where there would have been risks of one sort or another in pursuing them. Sometimes the enquiries were not pursued for the simple reason that at the time of the investigation, there was no desire or need on the part of the services to do more than see whether a particular individual was of interest to them so that resources should be allocated to him; they were not as such collecting evidence and still less were they trying to prove a case or investigate a possible innocent explanation. It is not a question of them simply ignoring material which might assist the Appellants because their minds would not be deflected from the track upon which they were set. It is that by the nature of their habitual task, they deal with suspicion and risk rather than proof. So it does not always appear to them necessary to pursue lines which might confirm or eliminate alternative explanations. But it does mean that less weight can be attached than otherwise might have been the case to certain aspects which aroused their suspicions. There may be a gap, between a seemingly suspicious activity and it giving reasonable grounds for suspicion in this context, which cannot be filled by inference or assessment where it could readily have been filled by further investigation.
52. The general point relating to disclosure did not so much concern the disclosure of material to the advocates, although it had an indirect effect there; it concerned the disclosure of material to the special advocates. Once disclosed to them, however, it could and sometimes did become the subject of further disclosure to the advocate and the Appellant. The SIAC Act and the Procedure Rules do not contain any provision for disclosure of unused material to the special advocates; there is no equivalent to the disclosure process applicable to criminal proceedings and there would be obvious difficulties in any such system. We were told in closed session on 28th May 2003, transcript p10 and following, that there was a guide within the Security Service SIAC team about disclosure which included a requirement that any “exculpatory material” should be disclosed. This requirement covered “material that may assist the Appellant's case or undermine his own”. The obligation lasted throughout the case. Examples were given of what was meant. Legal advice should be sought about the disclosure. It would not necessarily be disclosed to the Appellant or his open advocate. A team was responsible for disclosure rather than the witness in the case, who was not in a position to read all the documents which might relate to a particular Appellant.
53. Mr Williams accepted that it was Counsel's responsibility ultimately to make sure that if a point arose during the hearing that required a review of what had been disclosed to the Special Advocate, that such a review took place. There had been a process of secondary review already following the service of the Appellants' statements. It was accepted by Mr Williams that there needed to be a more formalised system of document checking for these purposes. (In fact the particular passage of cross- examination which led to that discussion revealed that there was both strong supportive material for the point being made by the witness which had not been disclosed, and a document which could be construed as helpful to the Appellant, but was not as helpful as Mr Scannell was inclined to suggest.)
54. It is correct that this disclosure system leaves control over disclosure in the hands of one party and its fair operation depends on the integrity of the Respondent's team and its understanding of what might actually assist an Appellant. We had no reason to doubt the integrity of those who operate it and no-one sought to cast doubt upon it. But the understanding of the Appellant's case is important as well. The Commission records and welcomes the Respondent's acknowledgement of the role of responsible counsel in a more formalised system of checking, drawing to the Respondent's team areas which should be looked for when the documents are reviewed after the Appellant's statement and as the case proceeds. There is no reason why the Special Advocate should not raise specific issues to be borne in mind during such a review. The Commission would be very slow to draw conclusions adverse to the Appellant if it felt that the Respondent's own guidance had not been faithfully and effectively followed. The reasonableness of the grounds would be reviewed in that light.”
279. It is, I think, clear that in the course of these cases SIAC and the parties found themselves on something of a learning curve as regards the evolution of proper interlocutory procedures especially in relation to the need for an orderly system for the disclosure of relevant documents. I do not say that the way matters proceeded left no room for improvement. Equally, Mr Gill's criticisms before us are entirely overblown. There is no substance in the suggestion that either of his clients suffered any real injustice, such as might require this court to remit their cases to SIAC for further consideration, arising out of the procedures for disclosure that were adopted.
280. As for the rigour with which relevant investigations were or were not pursued, I see nothing in paragraph 51 of SIAC's open generic determination with which to disagree. And in the security context it must be especially difficult for this court to form a responsible and objective view as to what should or should not have been done in the pursuit of any given or prospective lines of enquiry.
281. For the reasons I have given I would dismiss these appeals.
282. I end where I began. This case has concerned the means by which, in the acute setting created by the threat to the life of the nation which currently faces the United Kingdom, the State has sought to reconcile competing constitutional fundamentals. I do not say it has been done perfectly, or could not have been done better. But I do not think the executive or the legislature has at all lost sight of those constitutional principles which it is the court's special duty to protect: the rule of law, and the avoidance of arbitrary power.
283. The Anti-Terrorism, Crime and Security Act 2001 (“the 2001 Act”) gives the Secretary of State for the Home Department the power to detain a person in custody in circumstances where there is insufficient evidence to mount a prosecution against him for any imprisonable offence. This is a draconian power which, save in the most exceptional circumstances, is fundamentally inconsistent with the role of government in a democratic society. However, the legislature gave such a power to the Secretary of State, because of another fundamental role of government in a democratic society, namely the duty to ensure the safety and well-being of its citizens.
284. The 2001 Act has as its genesis the attacks which took place in the United States on 11th September 2001. Those attacks, no doubt together with other available evidence, led the legislature to conclude that the interests of national security required the Secretary of State to be given the power to detain any person `without a right of abode in this country, whom he believes to threaten national security and suspects of being a terrorist. While the Secretary of State is given such powers, the legislature has, very properly, ensured that persons detained under the 2001 Act, should be entitled to have recourse to a tribunal to challenge their detention.
285. Although it will be necessary to look at the provisions of Part 4 of the 2001 Act in more detail, the general scheme is as follows. Under s21, the Secretary of State can issue a certificate in respect of a non-national whom he suspects of being a terrorist and believes to be a risk to national security. Such a certificate results in that person being detained, unless and until he can find another country to which to travel. Such a person is given a right of appeal under s25 of the Act to the Special Immigration Appeals Commission (“SIAC”), from which there is a right of appeal on a point of law to the Court of Appeal. Part 4 of the 2001 Act requires periodic reviews of any such detention, and it also provides for its own ultimate determination, in November 2006 at the latest.
286. Since Part 4 of the 2001 Act came into force in November 2001, the Secretary of State has apparently ordered the detention of a total of 16 individuals pursuant to its provisions. The present appeals are brought by ten of those individuals, in respect of whom there were linked hearings before SIAC. Those hearings were complex for a number of reasons. First, there were ten separate appeals, which raised a number of similar points, but each of which, inevitably, depended on its own particular facts. Secondly, a number of points of principle and practice had to be determined by SIAC during the course of the hearings. Thirdly, some of the evidence upon which the Secretary of State relied had to be given in closed session, and was so sensitive that it could not be vouchsafed to the appellants. Accordingly, Special Advocates were appointed to represent them in connection with this evidence, pursuant to s6(1) of the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”), as explained by Lord Woolf CJ in paragraph 12 of his judgment in M -v- Secretary of State for the Home Department [2004] 2 All ER 863. As he went on to say in paragraph 13:
“In this situation individuals who appeal to SIAC are undoubtedly under a grave disadvantage. So far as it is possible this disadvantage should be avoided, or, if it cannot be avoided, minimised. However, the unfairness involved can be necessary because of the interests of national security.”
287. Where it is necessary to have a closed hearing, SIAC will normally need to produce two judgments, one of which covers all the open material, and the other of which is limited to the closed material.
288. Each of the ten appellants in these appeals was detained in late 2001 or early 2002 pursuant to a certificate under s21 of the 2001 Act issued by the Secretary of State. Two of the appellants, Jamal Ajouaou and F thereafter left the UK (for Morocco and France respectively) as they were entitled to do. The other eight appellants, A, G, Mahmoud Abu Rideh, E, B, H, C and D remain in custody. Each of the ten appellants exercised his right of appeal to SIAC against his certification. Eight of the ten appellants were granted anonymity by SIAC. All ten appeals were dismissed; in the cases of Ajouaou and F, SIAC held that, because they had left the UK, their s21 certification lapsed and SIAC had no jurisdiction to determine their appeals.
289. There is one so-called generic judgment which applies to five of the appellants. It runs to 309 paragraphs and is dated 29th October 2003. In that judgment, SIAC (Ouseley J, Mr C Ockleton and Mr J Chester) considered the issues of law, principle and inference which have been debated before us, and anxiously analysed the factual and opinion evidence put before it, and the arguments arising from them. SIAC also prepared a number of open and closed judgments in relation to the individual appeals, and we have in particular been referred to the judgment of SIAC (Collins J, Mr Ockleton and Mr J Daly) relating to F, which runs to 25 paragraphs.
290. The issues raised on these appeals concern the proper approach to be adopted by SIAC in relation to the determination of appeals it entertains. The resolution of those issues depends in part on the proper construction of the 2001 Act, but in some cases on the rules governing the procedure of SIAC, the Human Rights Act 1998 (“the 1998 Act”), the European Convention on Human Rights (“ECHR”) and the Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment or Punishment (“CAT”). The issues also have to be resolved in light of two earlier decisions of this court, namely A -v- Secretary of State for the Home Department [2004] QB 335 and M -v- Secretary of State.
291. The points of principle raised on these appeals in relation to the 2001 Act appear to me to be as follows:
- i. Issues of construction of the 2001 Act, namely:
- a. the ambit of s25(2)(a) and (b);
- b. whether it is open to a person against whom a s21 certificate was issued to appeal to SIAC if his certificate has been revoked;
- c. the test to be applied by SIAC for assessing whether there are “reasonable grounds” within the meaning of s25(2);
- d. the burden of proof as to any specific allegations of fact relied on by the Secretary of State on an appeal to SIAC;
- e. the meanings of “international terrorist group”, “member”, “supports” and “assists” in s21;
- f. the duty to investigate the prospect of removal to another country under s23.
- ii. whether evidence obtained from a third party under torture in another country can be relied on by SIAC and, if not, the extent of the exclusion of such evidence and the determination of the party on whom the burden of establishing the use or non-use of torture rests.
292. Once these issues of principle have been determined, it will be appropriate to deal with the specific complaints raised on these appeals, including complaints about SIAC's approach to the evidence. Before dealing with the various issues of principle, however, I must refer to the relevant provisions of the 2001 Act, and the other legislative or convention material of relevance to which we were referred.
The legislative and convention material
293. Part 4 of the 2001 Act came into force on 11th December 2001, and it is headed Immigration and Asylum. The first section in this part of the Act is s21, which provides, so far as relevant:
“1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably-
(a) believes that the person's presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.
(2) In subsection (1)(b) terrorist” means a person who-
(a) is or has been concerned in the commission, preparation of instigation of acts of international terrorism;
(b) is a member of or belongs to an international terrorist group; or
(c) has links with an international terrorist group.
(3) A group is an international terrorist group for the purposes of subsection (2)(b) and (c) if-
(a) it is subject to the control or influence of persons outside the United Kingdom, and
(b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of international terrorism.
(4) For the purposes of subsection 2(c) a person has links with an international terrorist organisation group only if he supports or assists it.”
294. Sections 21(8) and (9) make it clear that the issue of a certificate (and any subsequent action based on it) can only be challenged under ss25 and 26 of the 2001 Act.
295. Section 23(1) provides that:
“A suspected international terrorist may be detained under a provision specified in subsection (2) despite that fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely).”
Those circumstances are defined by reference to paragraph 16 of Schedule 2, and paragraph 2 of Schedule 3, to the Immigration Act 1971.
296. Section 25(1) and (2) are in these terms so far as relevant:
“(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.
(2) On an appeal the Commission 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.”
These are exclusive grounds of appeal - see s25(3). Section 25(4) provides that cancellation of a s21 certificate under s25(2) means that the certificate “shall be treated as never having been issued”.
297. Section 26 requires SIAC to “hold a first review of each s21 certificate as soon as is reasonably practicable after the expiry of the period of six months” after its date of issue and, so far as possible, every three months thereafter. Section 26(5)(a) requires SIAC to cancel a certificate it “considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in s21(1)(a) or (b)”.
298. Section 27(1)(b), through the medium of s7 of the 1997 Act, entitles a party to proceedings before SIAC under s25, to appeal any determination in such proceedings to the Court of Appeal “on any question of law material to the determination”.
299. Section 29 provides for ss21-23 to “expire” fifteen months after they came into force, subject to the power of the Secretary of State to repeal them earlier, or to extend them, subject to a final expiry date of 10th November 2006. Section 30 makes reference to a “derogation by the United Kingdom from Article 5(1)” of ECHR.
300. Finally, it is right to refer to s35 which, by adding a subsection (3) to s1 of the 1997 Act, provides that SIAC is “a superior court of record”.
301. The Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003 No 1034) (“the 2003 Rules”) came into force on 1st April 2003, and govern the procedure of SIAC. Rule 44 is in these terms:
“(1) Subject to these Rules, the evidence of witnesses may be given either-
(a) orally, before the Commission;
(2) The Commission may also receive evidence in documentary or any other form.
(3) The Commission may receive evidence that would not be admissible in a court of law”.
302. ECHR Article 3 is in these terms:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
303. ECHR Article 5 provides, so far as relevant:
“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of the court ...;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...;
(d) the detention of a minor ...;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases ...;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. ....”
304. ECHR Article 6(1) states:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
305. The final provision of ECHR to which I must refer is Article 15, which provides as follows:
“1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation ... from Article ... 3 ... shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures it has taken and the reasons therefor.”
306. I turn then to the 1998 Act. Section 3(1) provides:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
307. Those rights are defined in s1(1) and (2) as the rights in ECHR Articles 2 -12 and 14, “subject to any designated derogation or reservation”. A “designated derogation” is in turn defined in s14(1) of the 1998 Act as meaning “any derogation by the United Kingdom from an article of the Convention ... which is designated for the purposes of this Act in an order made by the Secretary of State”.
308. Section 6 of the 1998 Act provides, so far as relevant:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if
(a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation, which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section 'public authority' includes ... a court or tribunal ....”.
309. On 11th November 2001, the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001 No 3644) was made, being laid before Parliament the following day, and coming into force the day after that. Its preamble begins by stating that “the United Kingdom is proposing to derogate from Article 5(1)” of the Convention, and that the Order was made by the Secretary of State pursuant to s14 of the 1998 Act.
310. Article 2 of the Derogation Order states that:
“The proposed derogation by the United Kingdom from Article 5.1 of the Convention, set out in the Schedule to this Order, is hereby designated for the purposes of the 1998 Act in anticipation of the making by the United Kingdom of the proposed derogation.”
The terms of the Schedule are important, because they explain why the UK government concluded that the national interest required the enactment of Part IV of the 2001 Act.
311. The Schedule begins by referring to the “public emergency in the UK” arising from “the terrorist attacks in New York, Washington DC and Pennsylvania on 11th September 2001” and the fact that the “threat from international terrorism is a continuing one”. It goes on:
“There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned with the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.”
It then states that, as a result, “a public emergency, within the meaning of Article 15.1 of the Convention, exists in the United Kingdom”.
312. The Schedule to the Derogation Order then goes on to explain the purpose of the 2001 Act. It is to make provision:
“for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic powers”.
It then summarises the procedure laid down by ss21-25, and the duration provisions of s29 of the 2001 Act.
313. The Schedule to the Derogation Order then explains that, in R -v- Governor of Durham Prison ex p Singh [1984] 3 All ER 983, it had been decided that the power of detention contained in Schedules 2 and 3 to the Immigration Act 1971 “can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal and ... if it becomes clear that removal is not going to be possible within a reasonable time, detention will be unlawful”. The Schedule then states that:
“It is well established that Article 5(1)(f) permits the detention of a person with a view to deportation only in circumstances where 'action is being taken with a view to deportation' [and] that detention will cease to be permissible under Article 5(1)(f) if deportation proceedings are not prosecuted with due diligence.”
314. The Schedule goes on to say that it might be impossible to “remove or deport a person on national security grounds” where “removal to their own country might result in treatment contrary to Article 3 of the Convention”. In those circumstances, the Schedule explains:
“If no alternative destination is immediately available, then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required.”
315. The Schedule to the Derogation Order ends by saying that:
“[T]here may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that 'action is being taken with a view to deportation' within the meaning of Article 5(1)(f) as interpreted by the [European Court of Human Rights]. To the extent, therefore, that the exercise of the intended power may be inconsistent with the United Kingdom's obligations under Article 5(1), the government has decided to avail itself of a right of derogation conferred by Article 15(1) of the Convention ....”
316. Formal notification of this derogation was apparently given to the Secretary-General of the Council of Europe in accordance with ECHR Article 15(3), in effectively identical words to those contained in the Schedule to the Derogation Order.
317. Before turning to CAT, it is worth referring to UN Security Council Resolution 1373 which requires all states to take comprehensive measures, such as “exchange of information”, denial of safe harbour, cooperating and providing assistance in connection with criminal investigations with regard to those connected with, financing or supporting terrorist acts. The UK government is therefore bound to take such steps under international law.
318. The UK is similarly bound by CAT, which came into force on 26th June 1987. We were told that there are now well over 130 states parties to the Convention, which was produced under the ¾gis of the UN.
319. Article 1 of CAT defines “torture” as:
“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.”
“(1) Each state party shall take effective legislative, administrative, judicial or other measure 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.”
321. Article 3(1) is in these terms:
“No state party shall expel, return 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.”
322. Article 4 requires each state party to “ensure that all acts of torture are offences under its criminal law”.
323. Article 12 of CAT requires each state party to institute “a prompt and impartial investigation” whenever “there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”.
324. Article 14(1) provides:
“Each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation ....”
325. Article 15 is to this effect:
“Each state party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
326. Article 16 requires each state party “to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture” when committed, or consented to or acquiesced in, by public officials.
327. Article 17 of CAT sets up a Committee Against Torture (“the Torture Committee”), which, by virtue of Article 19, each state party is required to inform about the measures they have taken in order to comply with their obligations under CAT.
328. Under Article 20, the Torture Committee is required, in effect, to investigate if it “receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a state party”.
329. Article 22 entitles any state party to declare “that it recognises the competence of the Torture Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a state party of the provisions of the Convention”. The UK has not made a declaration pursuant to Article 22.
Issues of construction of the 2001 Act
330. A number of issues have been raised which turn in whole or in part on the proper construction of Part 4 of the 2001 Act, and they are set out at paragraph 291.(i) above. Because that statute must, of course, be construed as a whole, these issues, at least to some extent, inter-relate.
331. Before turning to these issues, there are two points of general relevance. First, to quote from the appellants' written submissions, certification under s21, Part 4 of the 2001 Act involves “the most grave deprivation of the liberty of individuals who are entitled to the full protection of ECHR Article 3 including its procedural requirements, the guarantees in Article 5 including Article 5(4) (save for Article 5(1)(f), which is the subject of derogation) and Article 6 fair trial rights in respect of their civil right to liberty”. I accept that this must at all times be in the forefront of the mind of any judge considering any argument of fact or law relating to, or arising out of, the 2001 Act.
332. However, I think it is equally important to bear in mind that the legislature, one of whose primary functions is to ensure the safety of the realm, has concluded that there is a sufficiently grave and imminent threat to national security from terrorist activity connected with Al-Qa'eda, to justify taking the drastic step of passing Part 4 of the 2001 Act and derogating from ECHR to the extent (and indeed for the reasons) identified in the Derogation Order.
333. The inevitable tension, indeed conflict, between two fundamental rights, the right of every individual not to be detained by the UK government without due process, and the right of every individual to expect the government to protect the security of the realm, must inform the consideration of all arguments concerning the construction and application of the 2001 Act.
334. Secondly, as I have already mentioned, this is not the first time that the Court of Appeal has had to consider Part 4 the 2001 Act. In A -v- Secretary of State the Court of Appeal held that the derogation effected by the Derogation Order did not infringe ECHR Article 14 (reversing SIAC on that issue). The Court of Appeal also held that, at least on the arguments raised in that case, proceedings before SIAC and detention adopted by the 2001 Act did not contravene ECHR. That decision is under appeal to the House of Lords.
335. In paragraph 44 of his judgment, Lord Woolf referred to “the deference which should be extended to the executive on matters of national security”, - as to which see also the fuller comments of Lord Hoffmann in Secretary of State for the Home Department -v- Rehman [2003] 1 AC 153 at paragraphs 50-54. Lord Woolf also mentioned the threat identified by the United Nations Security Council “to international peace and security” requiring all states to take measures “to prevent the commission of terrorists attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks”. 336. As Lord Woolf made clear in paragraph 42 of his judgment, Part 4 of the 2001 Act could only be invoked by reference to what Brooke LJ referred to as:
“The terms of the derogation. This refers in terms to the threat to international peace and security identified by the terrorist attacks on 11 September. In other words it identifies a threat posed by Al-Qa'eda and its associated networks (and no-one else)” (at paragraph 98).
337. I should also refer to paragraph 57 of Lord Woolf's judgment, where he considered the impact of ECHR Article 6. He rejected the contention that proceedings before SIAC were criminal, saying that “they are civil proceedings within Article 6”. He went on to say:
“The proceedings before SIAC involve departures from some of the requirements of Article 6. However, having regard to the issue to be inquired into, the proceedings are as fair as could reasonably be achieved.”
338. In M -v- Secretary of State, after an inter partes hearing, the Court of Appeal refused permission to the Secretary of State to appeal a decision of SIAC made under s25. Lord Woolf, having said in paragraph 2 that “SIAC is a superior court of record”, then stated, in paragraph 11, consistently with his and Brooke LJ's observations in A -v- Secretary of State, that:
“It is not enough that the person detained may have connections with a terrorist organisation. It must be a terrorist organisation which has links with Al-Qa'eda.”
339. In paragraphs 9 and 16 of his judgment, Lord Woolf said this:
“9. It will be observed that s25 refers to what SIAC considers the position to be. If SIAC considers 'there are no reasonable grounds for a belief or suspicion' then SIAC must cancel the certificate. Similarly, it must do so if it considers that the certificate should not have been issued.
16. SIAC is required to come to its decision as to whether or not reasonable grounds exist for the Secretary of State's belief or suspicion. Use of the word 'reasonable' means that SIAC has to come to an objective judgment, the objective judgment has however to reached against all the circumstances in which the judgment is made. There has to be taken into account the danger to the public which can result from a person who should be detained not being detained. There are also to be taken into account the consequences to the person who has been detained. To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on the individual's rights. Although, therefore, the test is an objective one, it is also one which involves a value judgment as to what is properly to be considered reasonable in those circumstances.”
340. At paragraph 34(iv), Lord Woolf concluded:
“This is not a case in which SIAC over-ruled the decision of the Secretary of State. SIAC had to come to its own decision on the material which ... was tested in a way which it could not be tested before the Secretary of State.”
341. With those introductory observations, I turn to the issues of construction identified in paragraph 291.i)above.
The ambit of s25(2)(a) and (b) of the 2001 Act
342. At least on the face of it, the meaning of s25(2)(a) of the 2001 Act presents no real difficulty. It is expressed unambiguously in the present tense, which, in the absence of very cogent reasons to the contrary, strongly suggests that SIAC must consider for itself whether there are “reasonable grounds”, and that it must judge that question by reference to all the material put before it at the date of the hearing. In other words, it is not to carry out the exercise by considering only the material available to the Secretary of State when he issued the certificate. SIAC is entitled, indeed bound, to take into account all the material available at the date of the hearing, which may include fresh material which assists the case of the appellant or that of the Secretary of State, which was not available to the Secretary of State, and may not even have been in existence, at the time he issued the certificate.
343. My view that that is what s25(2)(a) means is reinforced by the identical wording of s26(5)(a) of the same Act, which must be intended to refer to the material before SIAC at the relevant time. It was not suggested on behalf of any of the parties that s25(2)(a) could be read in any other way. Indeed, in light of what Lord Woolf said in paragraphs 9, 15 and 34(iv) of his judgment in M -v- Secretary of State, I do not think it would be open to this court to reach a different conclusion.
344. There is greater difficulty about the meaning of s25(2)(b). It appears to have been accepted by all parties, and indeed by SIAC, that, if SIAC concluded that the Secretary of State did not have the necessary belief and suspicion to satisfy s21(1), when he issued a certificate, SIAC would be entitled, indeed, in light of the mandatory opening wording of s25(2), obliged, to cancel the certificate, and that this would be SIAC's obligation even if it was satisfied that, by the date of the hearing, there was material giving rise to “reasonable grounds”. That is because s25(2) requires cancellation of a certificate if either of its paragraphs is satisfied.
345. I must confess to having doubts about that proposition. It can be said to overlook the word “other” in s25(2)(b), and it leads to somewhat impractical results. The word “other” in s25(2)(b) indicates that s25(2)(a) is to be treated as representing a “reason the certificate should not have been issued”. I accept that s25(2)(a) does not strictly satisfy that requirement, because it requires consideration of the grounds by reference to material available at the date of the hearing. However, what the word “other”, at least arguably, shows is that the legislature intended the question of “reasonable grounds” for the issue of the certificate to be considered by reference to material available to SIAC at the date of the hearing, and that s25(2)(b) is concerned with reasons other than the existence of such reasonable grounds. On this basis, s25(2)(b) may have pretty limited application, but it was presumably included in the 2001 Act, in the light of the draconian effect of a s21 certificate, to ensure that any abuse of power by the Secretary of State in issuing such a certificate (other than being unable to satisfy SIAC that there are reasonable grounds) could be raised to challenge the certificate.
346. SIAC pointed out that, if a certificate was revoked because there was insufficient material to found “reasonable grounds” at the time the certificate was issued, there would be nothing to prevent the Secretary of State from issuing a further certificate on the basis that the more extensive material before SIAC now justified its issue. While I accept that that is possible and logical, it seems to me to be cumbersome in its effect. If SIAC concludes that there are “reasonable grounds”, (a) it would be much simpler if the certificate stands, and (b) it would seem rather a waste of time and money if SIAC had to go on to consider whether or not there were “reasonable grounds” at the date of the issue of the certificate. If SIAC concludes that there are not reasonable grounds, consideration of whether there were such grounds is pointless: the certificate would have to be revoked anyway.
347. It is said that the person against whom a certificate has been issued may wish to obtain damages because the certificate should never have been issued. However, in many cases whether the Secretary of State may not have had reasonable grounds, SIAC will decide that no reasonable grounds exist at the date of the hearing; the certificate will then be revoked under s25(2)(a), rendering it unnecessary to consider whether the Secretary of State had reasonable grounds when he issued the certificate.
348. The most powerful argument in favour of SIAC's (and the parties') construction of s25(2)(b), in my view, is that it would be wrong to interpret it in such a way as to prevent a person against whom a certificate has been issued from contending that, even though the certificate may be justified by virtue of subsequent material, the Secretary of State ought never to have issued the certificate in the first place. This is a particularly powerful point bearing in mind the draconian effect of a s21 certificate.
349. In the event, not least because this aspect of the construction of s25(2)(b) was not the subject of argument, I will proceed on the basis that the view taken by SIAC as to the ambit of s25(2)(b) is correct, which it may well be.
The rights under s25 of a person whose s21 certificate has been revoked or has lapsed
350. In its generic judgment, SIAC concluded that it was not open to a person in respect of whom a certificate had been issued to mount or pursue an appeal under s25 of the 2001 Act if the certificate had lapsed (eg by the person concerned leaving the UK) or if the Secretary of State revoked the certificate. Accordingly, SIAC concluded that it did not have jurisdiction to entertain the appeals of Mr Ajouaou or F. On this appeal, Mr Ajouaou and F, as well as the Secretary of State, contend that SIAC was wrong on this point.
351. In the absence of s3 of the 1998 Act requiring the 2001 Act to be construed in such a way as to comply with ECHR, I would have been inclined to agree with the conclusion reached by SIAC. The right of appeal granted by s25(1) is to “[a] suspected international terrorist”, a term defined in s21(5) as “a person certified under subsection (1)”. As a matter of ordinary language it appears to me that this means that the only persons who are given a right to appeal are those in respect of whom a certificate exists. Once the certificate in respect of a person has lapsed or is revoked, he is no longer “a suspected international terrorist” and therefore, it would seem, he would have no right to appeal under s25(1). Furthermore, if it concludes that paragraphs (a) or (b) thereof is satisfied, the primary duty of SIAC is, under subsection 25(2), to “cancel the certificate”; that is a pretty meaningless concept, at least as a matter of ordinary language, if the certificate no longer exists.
352. Nonetheless, it cannot be pretended that (even ignoring s3 of the 1998 Act) there are no arguments to the contrary. It does not involve a great straining of language to read s25(1) as applying to a person who is or was a suspected international terrorist. Furthermore, the tense used in s25(2)(b) - “should not have been issued” - and in s25(4) - “shall be treated as never having been issued” - can be said to give some support to the notion that the legislature intended a person, in respect of whom a certificate had been issued, should be able to contend that, as a matter of law, no certificate had ever been issued in respect of him. That provides a reasonable basis for supposing that the legislature could well have intended a person in respect of whom a certificate had been issued, albeit that it had lapsed or been revoked, should nonetheless be able to mount an appeal under s25.
353. There is another point which somewhat militates against SIAC's conclusion. Given that the Secretary of State can revoke a certificate at any time, it seems to me that there would be nothing to prevent him making a revocation order during the currency of the hearing of a s25 appeal, or even after the appeal had been heard and before SIAC gave its determination. In such a case, SIAC's construction would raise the question as to whether its jurisdiction could effectively be removed by the Secretary of State's unilateral act of revoking the certificate. If such revocation would result in SIAC's jurisdiction coming to an end (as SIAC held), that is unattractive. It would mean that, once an appeal was launched, its prosecution would effectively be at the mercy of the Secretary of State. While one would not expect him to exercise his revocation powers capriciously, it does not seem desirable that the jurisdiction of a court of record, on so fundamental an issue as the validity of a s21 certificate, could be removed at any time at the behest of the Secretary of State. On the other hand, if SIAC's jurisdiction depended solely on the certificate being effective at the time the s25 appeal was launched, that would seem to be capable of leading to capricious results. If an appellant lodged his appeal the day before his certificate was revoked, then he could maintain it, whereas if he only launched his appeal the day after the certificate was revoked, he would be wholly disabled from bringing an appeal.
354. In these circumstances, even in the absence of s3 of the 1998 Act, I consider that there would be a powerful case for contending that a s25 appeal could be launched and/or maintained by a person in respect of whom a certificate has lapsed or been revoked by the Secretary of State. The factor which convinces me, in agreement with all the parties to the appeal, and in disagreement with SIAC, that this is in fact the correct analysis, is the effect of s3 of the 1998 Act.
355. A person may have grounds for establishing that the certificate should never have been issued, relying on s25(2)(b), and/or he may seek to cancel the certificate under s25(2)(a). In the former case he may have a powerful argument, in the latter case - in light of s25(4) - a real argument, for saying that his imprisonment was unlawful. Further, the fact that a s21 certificate was issued in respect of a person could plainly affect his reputation, and even his treatment, here and overseas. The revocation, or the lapsing, of the certificate may not remove any stigma thereby attaching to him. This would be particularly true where the certificate lapsed as a result of the person going abroad. Even where the certificate was revoked by the Secretary of State, the person concerned may feel that his reputation remains detrimentally affected, not least because the Secretary of State may give no reasons for the revocation. If an appeal can be mounted under s25, and, for instance, satisfy SIAC that there are no reasonable grounds for believing that he is associated with an international terrorist group, that would, to put it at its lowest, assist him in rehabilitating his reputation.
356. In principle, it therefore appears to me that a person who has been certified should be able to challenge the certificate (and at least call into question his consequent imprisonment) in court - see ECHR Article 6(1).) He cannot do so save by an appeal under s25 - see s21(8) and (9) of the 2001 Act. In Fayed -v- The United Kingdom (1994) 18 EHRR 393 at paragraph 58, the European Court of Human Rights (“ECtHR”) after mentioning ECHR Article 6(1), referred, with obvious approval, to the fact that the UK “did not dispute the existence and 'civil' character of the right under English law to a good reputation” in light of earlier decisions of the ECtHR. (In that case, the point did not in fact assist the applicants, because, as the ECtHR went on to explain in the succeeding paragraphs of its judgment, the applicants' complaint related to the activities of its inspectors, who carried out an investigative, and not a determinative role.) Accordingly, it appears to me that ECHR Article 6(1) strongly, indeed conclusively, supports the argument mounted by the parties against SIAC's decision on this issue.
357. Having reached the conclusion that a person is not prevented from mounting an appeal under s25 by virtue of the fact that his certificate lapses or is revoked, that is not quite the end of this discussion. SIAC appears to have taken the view that, if this argument was correct, it could not consider the issue raised by s25(2)(a) on an appeal by such a person, and that it was limited to considering his appeal under s25(2)(b). That view is shared by the appellants in these proceedings.
358. I do not consider that that is necessarily right. If, as appears to me to be correct for the reasons I have given, s25(1) applies not merely to a person who is, but also to a person who has been, certified under s21, then no immediately obvious reason why, as a matter of principle or in the light of its language, s25(2)(a) cannot apply to both types of person. On the face of it, SIAC can consider “that there are no reasonable grounds for a belief or suspicion of the kind referred to in s21(1)(a) or (b)” in respect of a person against whom a s21 certificate was issued, but subsequently revoked or allowed to lapse. As with a person against whom a certificate still exists, the question for SIAC is not whether, at the time the certificate was issued, there were such reason grounds; it is whether such reasonable grounds exist when the matter is before SIAC. It may well be that the Secretary of State will stop collecting information in respect of a person, once a certificate lapses or is revoked, but I think it questionable whether it is a strong enough a factor to justify concluding that s25(2)(a) should not be given its natural meaning in relation to an appeal brought by such a person.
359. Indeed, given the conclusion that a person who was certified, but whose certificate has been revoked, should be treated as having the same right to appeal against his certificate as a person whose certificate is still in existence, it is not immediately easy to see why the latter person should enjoy the benefit of more potential grounds of appeal than the former person. Perhaps particularly if one brings ECHR into play on this issue, one might expect both categories of person to be entitled to raise the same grounds of appeal, unless that would give rise to real difficulties.
The test to be adopted to establish whether there are “reasonable grounds”
360. The appellants criticise the approach adopted by SIAC to the evidence relied on by the Secretary of State in relation to each of the appellants on a number of grounds. Each of these grounds can, I think, be dealt with comparatively shortly, in light of the way in which s25 of the 2001 Act is worded.
361. The first criticism is directed towards the observation of SIAC that the test for certification under s21 of the 2001 Act is “not a demanding standard for the Secretary of State to meet”, and its reference to “the low threshold of proof” that has to be established by the Secretary of State under s25(2)(a).
362. I can understand why those observations, if taken out of context, might be said to suggest an insufficient degree of care, or even a wrong approach, on the part of SIAC, when considering an appeal under s25. However, read in context, I am of the view that those expressions of opinion are not merely unexceptionable; they are right.
363. In the great majority of cases where the court has to arrive at its own view on an issue of fact or opinion, it normally must do so on one of two bases. In the criminal context, the court normally (but by no means always) has to be satisfied by the prosecution of the correctness of a particular fact or opinion beyond reasonable doubt; in a civil context, the party seeking to establish the fact or opinion almost always has to do so on the balance of probabilities. In the context of s25 of the 2001 Act, however, while SIAC has to make its own assessment of the evidence and arguments relating to the questions of whether an appellant is a risk to national security and a terrorist, the ultimate decision it is required to make is whether there are “reasonable grounds” for both “believ[ing]” that the appellant poses a threat to national security and “suspect[ing]” that he is a terrorist.
364. Those words are clear in their meaning, if not always easy to apply. The court is not infrequently called upon to determine whether a certain opinion is reasonable. It seems clear that, in such a case it is not the function of the court to form its own opinion, but to consider whether the opinion is one which a reasonable person could, in the relevant circumstances, hold. The wording of s25(2)(a) requires SIAC to carry out that type of exercise. It must simply inquire whether “reasonable grounds” exist for a particular belief and a particular suspicion. In order to be persuaded that “reasonable grounds” exist, SIAC does not have to be satisfied on the balance of probabilities either that the appellant is a threat to national security, or that he is a terrorist.
365. The appellants contend that such a literal reading of ss21(1) and 25(2) of the 2001 Act cannot be justified in light of the drastic consequences of upholding a s21 certificate, namely that the appellant can be detained in prison for an indefinite period (or at least until November 2006) even though he has not been charged, let alone convicted, of any crime. That argument is powerful if one concentrates solely on one of the unusual and important features of Part 4 of the 2001 Act, namely that it results in the deprivation of the liberty of an individual against his will in circumstances where that could not normally begin to be justified.
366. However, apart from the difficulty caused to the appellants' argument by the language of ss21(1) and 25(2) of the 2001 Act, it appears to me that their argument is also weakened by the other two unusual and important features of the 2001 Act. First, there is the threat to the realm perceived by the government and identified in the Schedule to the Derogation Order. Secondly, there is a factor, which perhaps only has substantial weight in this connection when linked to the threat to the realm: the difficulty faced by the executive in establishing that a person is a member of a terrorist network, particularly one such as Al-Qa'eda, and that he is a threat to national security, which involves contemplating future possibilities, rather than what is more familiar to the law, namely past acts.
367. When considering whether there are reasonable grounds under s25(2)(a), SIAC must approach the evidence with great care, bearing in mind, in an appellant's favour, the draconian consequences of upholding a s21 certificate, but also bearing in mind the difficulty which would normally be involved in establishing that an appellant is a terrorist or a threat. It appears to me, from reading the very full consideration given by SIAC to the evidence adduced by and against each of the appellants, and the care with which the evidence was assessed and the explanation for the conclusions arrived at, that it cannot be suggested that SIAC did not adopt an appropriate approach to each of the appeals. Indeed, as mentioned already, I believe that SIAC performed its difficult and worrying task in an exemplary fashion.
368. It is also suggested by the appellants that, when assessing the factual material put forward by the Secretary of State, SIAC should decide, in relation to each allegation of fact, whether, on the balance of probabilities, the Secretary of State has established its correctness, and, only if so satisfied, should SIAC take that fact into account. If SIAC, when carrying out its role under s25(2), decides to take a particular fact into account as a fact, then I think that point is well made. Indeed, it would be difficult to hold otherwise in light of the observations in Rehman, where, in relation to a not dissimilar, but somewhat differently worded, provision, s3(5)(b) of the Immigration Act 1971, Lord Slynn said at paragraph 22: “when specific acts which have already occurred are relied on, fairness requires that they should be proved to the civil standard of proof”.
369. However, as Lord Hoffmann said in the same case at paragraph 56:
“[T]he 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 on 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.”
370. In these circumstances, I think that there are two problems with the appellants' criticism that SIAC failed to apply a proper standard of proof. The first is that, in deciding whether there are, as a matter of fact, reasonable grounds for suspicion or belief, SIAC is not necessarily concerned with primary facts, and, to that extent, there is no need to establish a primary fact on the balance of probabilities. For instance, subject to consideration of its reliability (which may raise all sorts of factors) a newspaper report relating to the activities of an appellant may be taken into account by the Secretary of State under s21 or by SIAC under s25. In such a case it is not necessary for SIAC to be satisfied on the balance of probabilities that the reported facts are true; it would merely need to be satisfied, on the balance of probabilities, as to the existence of the newspaper report. (I should emphasise that SIAC may, even if so satisfied, give no or little weight to the contents of the newspaper report, if it thought it right to do so.) Secondly, when considering whether there are reasonable grounds for the relevant belief or suspicion, SIAC need not, as I have sought to explain, be concerned about satisfying itself that, on the balance of probabilities, the belief for suspicion is justified, or that it shares the belief or suspicion. It is merely concerned with deciding whether there are reasonable grounds for such belief or suspicion.
371. The question of whether someone is an international terrorist can be said to be a matter of fact, whereas the question of whether he is a threat to national security is itself a matter of assessment. However, the question of whether there are reasonable grounds for suspecting a person is a terrorist and believing he is a threat to national security is a question of assessment.
The meanings of certain expressions in s21 of the 2001 Act
372. The appellants' complaints about SIAC's interpretation of a number of expressions in s21 of the 2001 Act, involve a general criticism of the approach of SIAC generally, which to a substantial extent I have already considered. The criticism is that SIAC did not give enough weight, when construing Part 4 of the 2001 Act, to the fact that it permitted a very substantial interference with the fundamental rights of individuals in respect of whom a certificate was issued under s21. As already indicated, I accept, without hesitation, that, when considering any argument in relation to Part 4 of the 2001 Act, this is a very important factor. Furthermore, as was emphasised by Lord Woolf in paragraph 42 of his judgment in A -v- Secretary of State, the limits of the derogation effected by the Derogation Order must be carefully defined, because, otherwise, the relevant law becomes too imprecise and lacks clarity and accessibility.
373. However, it is, as also mentioned, equally important to bear in mind, when considering any argument in relation to Part 4 of the 2001 Act, that it is designed to deal with a threat to national security which, in the view of the executive and the legislature, justifies this exceptional legislation. Furthermore, one must also bear in mind the inevitable difficulties which exist (and are impliedly recognised by the way in which ss21 and 25 of the 2001 Act are expressed) in finding evidence in relation to an individual's link with Al-Qa'eda and the possible risk he poses in the future to national security. Indeed, the very fact that, as the Schedule to the Derogation Order says, the powers under Part 4 of the 2001 are only to be invoked when there is insufficient evidence to justify the bringing of criminal proceedings, serves to emphasise the difficulties.
374. Particularly once it is accepted, as the appellants accept (inevitably, in light of the decision of this court in A -v- Secretary of State) that Part 4 of the 2001 Act is compatible with ECHR, criticisms of the clarity of the terminology of Part 4 of the 2001 Act, or the interpretation given to that terminology by SIAC, cannot be judged in abstract terms, or solely by reference to the factors upon which the appellants rely. It has also to be judged by reference to the perceived threat to national security and what is practical and feasible in the context of the clear purpose of the legislation.
375. So far as the word “group” in the expression “international terrorist group” is concerned, it appears to me to have a wide and imprecise meaning. As I have already mentioned, the effect of the derogation, as discussed in A -v- Home Secretary, must mean that the word “group” is limited to “Al-Qa'eda and its associated networks (and no one else)”.
376. SIAC said in paragraph 113 of its generic judgment:
“A group for these purposes may be informal, ad hoc, formed for temporary expediency; the effect of the [2001] Act draconian though it is, should not be approach as if it were only intended to apply to those terrorist groups whose affairs are conducted with some formality and constitutionalism. We do not consider that a group can only exist if it is shown to have a formal structure capable of membership. A group in this context is no more than an association of some sort between individuals to pursue one or more aims; the lone terrorist is excluded, 'group' is a word of very wide meaning. It covers the concept of networks.”
377. While it can be dangerous to seek to define a word or expression in a statute, I consider that those observations cannot be faulted. They can be said to be vague. However, the word “group”, particularly in the context of Part 4 of the 2001 Act, does appear to be a word of wide meaning, and when one considers the nature of terrorist groups, and of Al-Qa'eda in particular, it seems positively unreal to think that the legislature can have had a relatively narrow meaning in mind. It would be inappropriate to consider the many other references in SIAC's judgment to the meaning of the word “group”. Because of the different facts and arguments on each appeal, SIAC inevitably expressed itself in slightly different ways in different places in the generic judgment, but in my view, there is no basis for criticising its approach or conclusions. Thus, in paragraph 125, SIAC made reference to:
“The ideology which Osama bin Laden has developed and which has united the individuals and groups in a way which does not undermine the individuals, but works with them to further their common objectives against a common enemy is set out in the Declaration of Jihad by Osama bin Laden against the US of 23rd August 1996.”
I see nothing wrong with that.
378. Similar complaints about the relatively broad meaning given by SIAC to the words “member”, “supports” and “assists” appear to me to be ill-founded. At paragraph 113 of the generic judgment, SIAC said:
“It may not always be clear in any given case whether someone is a member of a group, or whether he supports or assists it. ... [I]t would be unwise to lay down any hard and fast distinctions for the purposes of the [2001] Act between membership and support and assistance.”
Again, this seems to me to be correct.
The duty to investigate the prospect of removal under s23 of the 2001 Act
379. The appellants contend that the effect of s23(1) of the 2001 Act is that the Secretary of State is required to investigate whether another country could or would take the appellants before he could detain them. This point arises in relation to one of the appellants, D, whose solicitors wrote to the Treasury Solicitor stating that D was willing to go to France and invited the Secretary of State to make “preliminary inquiries” as to whether France would take him. The Treasury Solicitor replied some five weeks later suggesting there was no reason why D should not make those inquiries.
380. I do not understand how, as a matter of language, it can be contended that s23(1) of the 2001 Act imposes an obligation on the Secretary of State to investigate countries which might accept someone in respect of whom he has issued, or intends to issue, a s21 certificate. As SIAC said in paragraph 116 of its generic decision:
“It is not for the [Secretary of State] ... to contact speculative possibilities for the appellant. ... If there are obvious third countries to be investigated, we would expect the [Secretary of State] to make some inquiries. But they may be limited where an appellant has already left that third country, fearing that it would return him to his country of nationality or imprison him. In reality an appellant would be expected to identify the country to which he thought he might be able to go, if he does not wish to return to his country of nationality directly or indirectly via a third country and has indicated a fear of such a result.”
Admissibility of statements obtained under torture
381. Some of the evidence relied on by the Secretary of State, in order to establish that there were reasonable grounds to satisfy s25(2)(a) in relation to some of the appellants, consisted of statements said by them to have been obtained from individuals held by the United States at Bagram Airbase in Afghanistan or Guantanamo Bay in Cuba, or transferred by the United States to various countries, including Egypt, Jordan and Morocco.
382. In civil or criminal proceedings before an English court, such a statement would hardly ever be admissible in common law because it is hearsay, quite apart from any other reason. Particularly in civil proceedings, there are, of course, statutory exceptions to the rule against hearsay evidence. However, in relation to s25 appeals, it is common ground that a hearsay objection cannot be take to such evidence. That is because of rule 44(3) of the 2003 Rules (“rule 44(3)”), which disapplies the normal rules relating to admissibility of evidence, so far as hearings before SIAC are concerned.
383. The appellants nevertheless contend that, contrary to the conclusion reached by SIAC, these statements should not have been admitted. This is because the appellants say that there is and was reason to believe that the individuals concerned made the statements under torture by agents of the relevant national (ie US, Egyptian, Jordanian or Moroccan) authorities. Accordingly, the appellants argue, these statements could not be relied on by the Secretary of State before SIAC as evidence of “reasonable grounds”, and could not be relied on by SIAC in order to decide whether there were such reasonable grounds.
384. This topic gives rise to three issues. The first issue is whether, as a matter of principle it is in fact open to the Secretary of State in evidence before SIAC, and SIAC in its decision, to rely upon a statement which was made by a third party when under torture by officials of a third country. In contending that the answer is in the negative, the appellants put their case on three bases. The first is the English common law. The second is a right to a fair trial under ECHR Article 6. The third argument turns on the Derogation Order and ECHR Article 15.
385. The second and third issues only arise if the appellants succeed on one or more of those three arguments. The second issue is, if a statement obtained by torture is excluded from evidence, how far that exclusion goes. The third issue is whether it is for the Secretary of State to prove that the statement was not obtained by torture, or for the appellant to prove that it was obtained by torture and, in either case, whether the standard of proof is the civil, balance of probabilities standard, or the criminal, beyond reasonable doubt, standard.
386. I shall consider these issues and arguments in turn. Before doing so, however, it is right to emphasise that the Secretary of State does not accept that any evidence adduced before SIAC in these cases consisted of statement made when under torture. Indeed, he contends that SIAC concluded that no evidence before it did consist of such statements. That is a matter we may have to determine, or at least consider, once the issues of principle are resolved.
Does the common law preclude reliance on statements obtained by torture?
387. The appellants' contention that English common law requires a statement obtained by torture to be excluded from the court's consideration is based essentially on two arguments. The first is that this is, or should be, the position in light of the state of the relevant authorities. Alternatively, it is submitted that it is the position as a result of the common law developing in the light of international law (other than ECHR).
388. So far as the English common law is concerned, reliance was placed by the appellants on the powers, indeed the duty, of a criminal court: (a) to exclude evidence of an accused's confession, save where satisfied that it was freely made; and (b) to exclude evidence (or even to stay the prosecution) where the production of the evidence (or the proceedings themselves) would involve an abuse of process.
389. The exclusion from evidence in a criminal trial of an accused's confession, save where it was clearly made voluntarily, is a very well-established rule (and now enshrined in statute), although not one without criticism: see for instance DPP -v- Ping Lin [1976] AC 574 at 599-600 per Lord Hailsham of St Marylebone. Before us, there was some discussion as to whether the basis for the exclusion of a confession, save where it was wholly voluntary, was based on the need to avoid abuse by the executive, or concern about the unreliability of any but a voluntary confession. Whatever the basis in earlier cases, (where the justification for the rule is not entirely clear) I consider that the modern answer is that both factors are in point.
390. In this connection, I would refer to the speech of Lord Mustill in R -v- Director of Serious Fraud Office ex p Smith [1993] AC 1 at 30E-32D. He first identified six types of immunity, including:
“a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies” (at 30F).
He then went on to identify various motives, which, he pointed out, would not necessarily all apply to each type of immunity which he had identified. Those motives were:
“The first is a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business.
Secondly, there is a long history of reaction against abuses of judicial interrogation.
Next there is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal.
Finally there is the desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession, to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are 'voluntary.'” (see at 31D and E and 32A and B)
391. In that case, the applicant, who had been cautioned for an offence under the Companies Act 1985, objected to being required to answer questions put to him in connection with the matter by the Director of the Serious Fraud Office pursuant to s2 of the Criminal Justice Act 1987. Accordingly Lord Mustill's second reason was a reference to “abuses of judicial interrogation”, rather than what, on the appellants' case here, is said to be what Lord Hoffmann called, in paragraph 47 in R -v- Looseley [2001] 1 WLR 2060, “an abuse of executive power”.
392. None of the cases to which we were referred on the topic of confessions in criminal proceedings concerned the prosecution's right to use in evidence, a statement which had been obtained by force, threat or inducement from a person other than the defendant, or where the force, threat or inducement was perpetrated by someone independent of any authority in this country. That is, of course, not surprising, not least because (as mentioned above) a statement made by a third party outside court would hardly ever be admissible under common law in criminal proceedings, or indeed in civil proceedings. The third party would be expected to attend court to give evidence himself. There is, therefore, an air of unreality about an inquiry whether the common law would admit evidence of what a third party said outside court, whether under torture or not.
393. Having said that, it is fair to say that it is arguable that three of the four reasons identified by Lord Mustill do not, at least necessarily, justify the exclusion of a statement obtained through torture by a foreign government from someone other than a defendant. The first and third reasons can be said to apply, at least primarily, to confessions by the defendant himself, and not by any means necessarily to statements extracted from someone who is not a party to the proceedings. The second reason can be argued to apply to the authorities in this country, but not to foreign authorities. Even the fourth reason can be said to go to weight - see for example per Lord Hailsham in Ping Lin at 600.
394. Indeed, the Secretary of State can get some assistance from R -v- Sang [1980] AC 402 where the House of Lords concluded that, save (a) in relation to evidence whose prejudicial effect outweighed its evidential value, and (b) in relation to improperly obtained evidence from the accused himself, a judge in criminal proceedings had “no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper means” (see for example per Lord Salmon at 444D-445C).
395. So far as abuse of process is concerned, we were taken to R -v- Looseley, where Lord Nicholls of Birkenhead said in paragraph 1:
“My Lords, 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. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens to make sure this does not happen.”
396. He went on to point out in paragraph 11 that “in this field English criminal law has undergone substantial development over the comparatively short period of 20 years ...”. Accordingly, observations in cases such as Ping Lin and Sang must be read and applied bearing in mind these modern developments.
397. At paragraph 13, Lord Nicholls went on to say that:
“The judiciary should 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' ....”.
398. As Lord Nicholls went on to explain in paragraphs 15 and 16, where executive abuse has occurred, the appropriate reaction of the court may depend on the circumstances. Thus, where the crime was committed purely as a result of entrapment, the only course for the court may be to stay the proceedings. In other cases, for instance where certain statements have been obtained unfairly by the authorities, the proper course may be to permit the prosecution to proceed, while excluding the unfairly obtained statements (see also per Lord Hoffmann at paragraphs 40, 42-44.)
399. It is also relevant to observations from members of the House of Lords in two other cases, which Lord Nicholls no doubt had in mind. First, in R -v- Horseferry Road Magistrates' Court ex p Bennett [1994] 1 AC 42, at 76C-D, Lord Lowry said:
“[T]he 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 affect 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. ... It affects the proper administration of justice according to the rule of law and with respect to international law.”
400. In that case, as Lord Bridge made clear at 67G, the executive had only been able to prosecute the defendant “by participating in violations of international law and of laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court”.
401. In R -v- Latif [1996] 1 WLR 104 at 112H - 113B, Lord Steyn said:
“Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed .... [P]roceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. ... General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present, the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.”
402. In my view, it does not follow from cases such as Looseley and Bennett that the common law, or the inherent powers of the court, can be invoked to exclude, as of right, as to a statement improperly obtained by someone unconnected with the UK authorities. Those cases were concerned with wrongful acts carried out by, or participated in by, agents of the UK executive. It does not follow that the principles enunciated are to be applied to cases where nothing wrong was done by or on behalf of the executive.
403. I believe that that is supported by the decision of the Court of Appeal (Criminal Division) in R -v- Shannon [2001] 1 Cr App R 168 where the defendant had been enticed to commit a crime involving supply of controlled drugs by a journalist acting as an agent provocateur. The court held that it was open to the judge hearing the prosecution to exclude the evidence on the grounds that it was unfair, but there was no principle which required its exclusion. Further, even in his strongly expressed observations, Lord Steyn in Latif indicated that the common law regards the decision whether to permit a trial to proceed on the basis of tainted events or evidence, was a balancing exercise, rather than subject to an absolute rule. However, I accept that that does not mean that, in cases where the taint is so great or of a particular nature, the discretion cannot be required to be exercised only one way.
404. In any event, the appellants' argument based on these cases faces an additional difficulty. The present proceedings are, as Lord Woolf held in paragraph 57 of his judgment in A -v- Secretary of State, albeit in the context of ECHR Article 6, civil proceedings. They are not criminal proceedings, unlike all the cases so far considered. To me, at least, the point has limited attraction. While appeals to SIAC under s25 are, technically, civil proceedings, they are, from the point of view of an appellant, in many ways as penal as criminal proceedings, and, in light of the nature of the evidence which is sufficient to justify an appellant's indefinite imprisonment, in some ways more penal than criminal proceedings.
405. So far as civil proceedings are concerned, the law, at least as it has been traditionally understood, is summarised thus in Phipson on Evidence 15th Edition at paragraph 33-34:
“The courts have on occasions disclaimed any general discretion in civil cases to exclude evidence on grounds of unfairness. There is no discretion to exclude evidence on the ground that it was unlawfully obtained. Nor is there any authority for the exclusion of evidence that its prejudicial effect outweighs its probative value.”
However, as the editors go on to explain, there are certain exceptional grounds for excluding facts, statements of documents from evidence, such as public interest immunity, privilege, and similar fact evidence.
406. In Blackledge -v- Arrow Nominees Inc (unreported, 22nd June 2000), the Court of Appeal held that, in a civil case, it was open to a judge to dismiss proceedings (in that case a petition under s459 of the Companies Act 1985) in circumstances where the applicant, with the “object of frustrating a fair trial” had falsified and destroyed documents, with the result that it was not “fair to the respondents - [or] in the interests of the administration of justice generally - to allow the trial to continue”, per Chadwick LJ at paragraph 56. In the same paragraph he went on to explain that:
“A decision to stop the trial in those circumstances is not based on the court's desire (or any perceived need) to punish the party concerned; rather it is a proper and necessary response where a party has shown that his object is not to have a fair trial which it is the court's function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise.”
407. It appears to me that both logic and the reasoning of Lord Nicholls in paragraph 16 and 17 in Looseley suggest that it should be open to a court in civil proceedings to exclude evidence, rather than to take the more drastic steps of striking out the proceedings, if the trial would not be fair were the evidence admitted, but by not admitting the evidence, a fair trial could be achieved. (However, in some cases, a party's behaviour in the conduct of litigation, although very blameworthy, may not result in the claim or defence being struck out, or even in evidence being excluded: see for instance Jones -v- University of Warwick [2003] 1 WLR 954 at paragraph 28).
408. I do not consider that the reasoning in Blackledge is of assistance to the appellants here. There is no suggestion that the UK government was directly or indirectly responsible for, or indeed involved with, the procuring by torture of a statement, which the Secretary of State sought to rely on before SIAC. Nor is there any suggestion that the purpose of an alleged torturer was to interfere with the proceedings before SIAC; indeed it is unlikely in the extreme that any alleged torturer would have had in mind, or even known about, any projected SIAC proceedings.
409. From this analysis of the cases, it appears to me to follow that the appellants have not demonstrated that there is any authority to support the proposition that there is, or necessarily should be, a rule of common law whereby any statement obtained from a person under torture should be inadmissible, at least where neither the tortured nor the torturer is party to the proceedings. However, that is not the end of the matter, because it is not as if the Secretary of State has been able to establish that there is any case which does establish that such a statement is admissible. The point may therefore be said to be an open one, although it is fair to say that, in the absence of any authority suggesting that the common law requires a certain type of evidence to be excluded, the presumption would be that it does not require the exclusion of such evidence.
410. The common law is far from being static or petrified. Indeed, the change in the House of Lords' attitude in the 20 years between the decisions in Sang and Looseley is a good illustration of that (see Looseley at paragraph 11). Given that there is no case, and no reference in any authoritative text, to which we have been referred where it has been held that a statement obtained by torture is or is not admissible, it appears to me that this is a point which we are free to decide. However, it is not a point which should be resolved on the basis of moral feeling or personal preference; it should be determined, so far as possible, in a way which is consistent with the present state and character of the common law.
411. In considering this sort of question, it may often be unsafe to embark on the inquiry without bearing in mind the impact of ECHR, not least because, if the common law is, as was observed by Lord Bingham and Lord Hoffmann in R -v- Lyons [2003] 1 AC 76, informed by norms of international law, it must all the more be informed by international treaties which are incorporated into national law. However, as the appeal on this issue was argued on a rather compartmentalised basis, I am content to consider the point without reference to ECHR. After all, if the effect of ECHR is to exclude evidence obtained under torture, the appellants do not need to succeed on the common law, and if a statement obtained by torture is not to be excluded pursuant to ECHR, on the basis that it is a matter for the English court, it would be unlikely to influence the common law on the topic.
412. In my view, there are four powerful reasons for concluding that, at least where it is the executive which is seeking to rely on evidence obtained by torture, the common law would exclude it. The first reason is the revulsion from torture. In his recent Essex Clifford Chance lecture on Torture (29 January 2004), Lord Hope of Craighead considered the history of the use of torture in connection with judicial proceedings. Torture, as a means of extracting the truth from suspects, “was not permitted in any of the common law courts in England as part of the ordinary course of the administration of justice” (p6). As Lord Hope explained at p9, torture was last used in England in connection with judicial proceedings in 1640. In other European countries it continued until well into the 18th, and even into the 19th, century (see p7). The outright rejection of torture was voiced in Sir Thomas Smith's De Republica Anglorum, and in the 1906 edition edited by Mr Leonard Alston, one finds this in chapter 24, on p106:
“The nature of our nation is free, stout, haulte, prodigall of life and bloode: but contumely, beatings, servitude and servile torment and punishment it will not abide.”
Outright rejection of torture can be said to carry with it rejection of evidence obtained under torture, whoever the torturer or the tortured may be.
413. Secondly there is the fact that at least in the present appeals, it is the UK government, through the Secretary of State, which is seeking to rely upon evidence which, at least according to the appellants, was extracted under torture. While this is not a case where there is any question of the executive having been in any way connected with the torture, it remains the case that it is the executive which is seeking to rely in legal proceedings upon evidence which is alleged to have been obtained through torture. In a sense, therefore, it can be said that the executive has “adopted” the means by which the evidence was extracted, and therefore that the duty of the court to intervene has arguably been triggered.
414. Thirdly, one of the principal reasons why a confession made by an accused is excluded from evidence unless it was voluntary, is that such a confession is self evidently unreliable. That reason would apply with equal force to a statement obtained from a third party under torture.
415. Fourthly, in a case such as the present, where the statement is from a third party, there could be said to be greater unfairness to the appellant than if the statement was his. The person from whom the statement has been obtained would almost certainly not be available for cross-examination by the appellant, whereas the appellant can at least give evidence about his own confession. There are also particular difficulties faced by an appellant before SIAC, both because he may not be able to see much of the relevant evidence, and because the nature of the evidence which SIAC is entitled to take into account will, at least in many cases, be second-hand, conjectural and/or sketchy.
416. While these are very powerful arguments, I have come to the conclusion that, subject to what may well be a very important qualification in practice, they do not justify concluding that the common law would require evidence obtained by torture to be excluded, even in relation to a s25 appeal before SIAC. First, as has been authoritatively stated in the context of criminal proceedings, for instance in Sang, the well-established approach of the English courts was that evidence was admissible, irrespective of how it was obtained. Save where the state is implicated in the wrongful obtaining of evidence, the common law may be expected to take its normal pragmatic approach. Improper action by the executive may often lead to high principle prevailing over pragmatism (as in Bennett and Looseley); so too, possibly, where the accused is unfairly caused to incriminate himself. Otherwise, it should be weight rather than admissibility which comes into play.
417. Secondly, there are observations at the highest level which suggest that the rule that involuntary confessions are to be excluded in criminal cases, can be regarded, at least in the absence of any statutory provision to that effect, to be somewhat anomalous, on the basis that the circumstances in which a confession is extracted logically go to the weight to be given to the confession, rather than its admissibility - see for example the observations of Lord Hailsham in DPP -v- Ping Lin at 600. If there are grounds for characterising the exclusionary rule relating to involuntary confessions in criminal cases as anomalous so far as the common law is concerned, that makes it difficult to justify extending the rule to exclude from evidence in non-criminal cases a statement extracted from a third party, and where the executive is not involved in the unlawful obtaining of the evidence.
418. Thirdly, although it can be said that the executive, by using evidence obtained under torture, has somehow adopted the means of obtaining that evidence, it appears to me that that argument is weakened by the decision in Shannon, where it could have been said that, by prosecuting, the Crown had effectively adopted the actions - or at least the results of the actions - of the agent provocateur.
419. Fourthly, in relation to an appeal under the 2001 Act, the Secretary of State may, at least in some cases, have had very little option but to rely on upon evidence obtained by torture, if it is supplied to him through his officials, who will have obtained it, either directly or indirectly, officially or unofficially, from officials from other governments. In the absence of a good reason, one would expect the same type of evidence to be available to SIAC as is available to the Secretary of State.
420. Fifthly, while it is not a particularly attractive point, s25 appeals are civil proceedings, and not criminal proceedings. It is clear from the passage in Phipson (op cit) that, whatever changes or advances there may have been since the decisions in Sang and Ping Lin so far as the attitude of the courts in criminal cases is concerned, relevant and otherwise admissible evidence in civil proceedings is only excluded in very rare circumstances, and recent cases, such as Blackledge do not provide any assistance to the appellants' case in this regard.
421. Sixthly, there are the provisions of rule 44(3) itself. The purpose, at least as expressed in general terms, of that rule was, in my view, to ensure that any rule relating to admissibility which would normally have precluded the receipt of evidence in an English court should not apply to a s25 appeal before SIAC. However, that does not mean that rule 44(3) will over-ride every objection to admissibility. That would involve giving the rule far too wide an effect. After all, the rule is only expressed in general permissive terms.
422. Thus, I consider that any statutory exclusionary rule which would otherwise apply, would not be disapplied by Rule 44. Further, any fundamental rule, which might be described as more than a “mere” common law rule, but one of constitutional importance, would not be disapplied. To raise what is a very unlikely possibility, evidence obtained from an appellant, or indeed, anyone else, through the means of torture to which the UK government was in some way party, should be excluded despite rule 44(3): that would be a classic case of SIAC carrying out the protective duty described by Lord Nicholls in paragraphs 1 and 13 of Looseley.
423. Accordingly, albeit with real hesitation, I am of the view that, unless the effect of any principle of non-domestic law can be relied on, the appellants' contention, that a statement obtained by a third party under torture from someone unconnected with the UK government should be inadmissible in s25 proceedings as a matter of English common law, must, on the basis of the arguments before us, be rejected. However, this conclusion is subject to two important qualifications.
424. First, I am firmly of the view that, in the unlikely event of the torture having been carried out by or on behalf of, or even with the connivance of, the UK government, the court would have no hesitation in excluding any statement given under such torture, if it was sought to be relied on by the Secretary of State. To permit the executive to rely in court on evidence which its agents had extracted, or assisted in extracting, under torture would involve the court failing in the duty identified by Lord Mustill in his second factor in Smith, and so ringingly described by Lord Nicholls in paragraphs 1 and 13 of Looseley.
425. Secondly, there is what I have referred to as what is possibly a very important qualification in practice. As already mentioned, it appears to me that the common law, being based more on pragmatism than principle, at least where there is no question of executive wrong-doing, will approach statements obtained by torture by reference to weight rather than admissibility. While the point was not greatly discussed before us, it appears to me, as at present advised, that, in the absence of any internal corroboration, it would be inappropriate to give a statement made under torture any weight. By “internal corroboration” I have in mind something said by the person under torture which somehow serves to confirm that he is telling the truth in that part of the statement which implicates the appellant. Thus, if the person under torture identifies eight people (including an appellant) as terrorists, the fact that the other seven were known to be terrorists might, I suppose, provide some sort of internal corroboration. (Even in such a case, it may be said that it would be wrong to rely upon the statement, unless one knew that the seven names had not been given to the person under torture by his torturers).
426. External corroboration would not take matters any further, because it would consist of evidence, outside any statement obtained by torture, tending to suggest that the appellant was a terrorist, which would be evidence which would stand on its own anyway. However, a simple statement, which does no more than implicate the appellant, even with some details, if given by a third party under torture, appears to me to be, at least in the absence of special circumstances, very unlikely to be regarded by any right minded person as being of any probative value.
427. My view on this question of weight is not affected by rule 44(3). In R -v- Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456, it was clear that “Parliament did not intend that the proceedings should be governed by the strict rules of evidence” (per Willmer at 474F). However, Diplock LJ explained, at 488C-E:
“The requirements that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and substitute its own view for his.”
428. Accordingly, if an uncorroborated statement given under torture is not (at least normally) of any weight, rule 44(3) could not be invoked to change that on a s25 appeal.
429. I have wondered whether such an uncorroborated statement made under torture could be required to be excluded on the basis that its prejudicial effect must outweigh it probative value - an exception to the general rule allowed in Sang. In the absence of having heard argument on the point, I would not like to rest any decision on it. After all, it is arguably only relevant in criminal cases, and it is of particular application to jury trials.
430. I turn, then, to the contention that the English common law requires the court to exclude evidence obtained by torture as a result of developments in international law.
431. In Lyons, at paragraph 13, Lord Bingham observed:
“Even before the Human Rights Act 1998 the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law.”
432. At paragraph 27, Lord Hoffmann said this:
“Of course, there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation.”
433. In this connection, the appellants do not rely upon the ECHR, because, of course, unlike in Lyons, it is open to them effectively to rely directly on ECHR because the hearing before SIAC took place after the 1998 Act had come into force. What the appellants do rely on is CAT, and in particular Article 15 thereof. They contend that, by admitting evidence obtained under torture by an official of a foreign government, particularly, it is said (though I am not sure why), a government which is a signatory to CAT (eg the United States), SIAC would be putting the UK government in breach of its obligations under Article 15 of CAT.
434. I do not consider that that contention, even if it is right insofar as the effect of Article 15 of CAT is concerned, is correct. The mere fact that the UK is party to an international convention under which the states parties agree that an action should not be taken, whether in the courts or elsewhere within their jurisdiction cannot, without more, result in the common law preventing the taking of that action. It is well established that international treaties are not themselves part of domestic law, and that the English courts have no jurisdiction to apply them directly as domestic law, at least until they are incorporated, which would normally be by statute, into national law. That was made clear by Lord Hoffmann in paragraph 27 of his speech in Lyons where he said:
“[I]t is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them.”
If the common law simply incorporated every commitment entered into by the UK government in an international treaty, it would make a nonsense of the principle identified by Lord Hoffmann. At paragraph 39 in Lyons, he said that a similar argument “comes to nothing more than an attempt to give direct domestic effect to an international treaty”.
435. Indeed, the opening words of Article 15 of CAT themselves contain a difficulty for the appellants' argument based on common law, over and above any problem of principle. That Article envisages that each contracting state will ensure that evidence obtained by torture cannot be relied on in its national courts. Article 15 therefore carries with it the notion that, if the current national law does not have such an exclusionary rule, something more will have to be done by the national government to ensure that it does. No such further action has been identified on behalf of the appellants in the present case.
436. In my judgment, there would be a formidable argument for contending that the common law should, irrespective of the impact of the ECHR, be extended to exclude from evidence statements obtained by torture, if it could be shown that there is, in the international hierarchy, an “ordinary” customary rule that statements obtained by torture should not be admissible in a court. In that connection, it is clear that the prohibition of torture itself is not merely such a customary rule, but now “has the character of jus cogens, or a peremptory norm” which involves a higher rank even that ordinary customary rules: see per Lord Browne-Wilkinson in R -v- Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (No 3) [2002] 1 AC 147 at 198B-C, and per the ECtHR in Al-Adsani -v- United Kingdom (2002) 34 EHRR 11 at paragraph 30, quoting extensively from paragraphs 144-154 of the judgment of the International Criminal Tribunal for the former Yugoslavia in Prosecutor -v- Furundzija (1999) 38 ILM 317.
437. However, I do not think that it follows from this that there is such a customary rule or peremptory norm relating to the acceptance by national courts of statements obtained by torture. Such a contention would have to be made out by reference to authorities, text-books and articles in appropriate journals. We have not been referred to any such material, although it is right to record that the appellants applied for permission to develop an argument to that effect. Because that application was made very late in the hearing of these appeals, it would have been unfair to the Secretary of State to have acceded to it, and consequently it is not a line of argument which is open to the appellants.
438. In all these circumstances, I consider that the appellants have failed to make out their case, whether based on purely domestic law considerations or on international treaty obligations (other than ECHR), that the common law would preclude the Secretary of State from relying in proceedings on statements obtained from third parties by torture to which the UK was in no way party.
Does ECHR Article 6(1) preclude reliance on statements obtained by torture?
439. The second basis upon which the appellants put their case for contending that evidence obtained by torture cannot be relied on before or by SIAC is essentially through the medium of ECHR Article 6(1), which confers the right to a “fair trial”. In this connection, in light of the status of SIAC, the nature of proceedings under s25 of the 2001 Act and the decision of this court in A -v- Secretary of State at paragraph 57, it is rightly common ground that such an appeal is within the scope of the Article. The question is whether the dismissal by SIAC of an appeal brought under s25 would infringe an appellant's right to a fair trial, if the dismissal turned on evidence consisting of an statement obtained by torture, albeit that the statement was made by a third party on whom the torture was committed by someone wholly independent of the UK government.
440. It appears clear from a number of decisions of the ECtHR that the question whether a trial was “fair” under ECHR Article 6(1) does not normally involve consideration of whether certain evidence should or should not have been admitted, which is a matter for the domestic courts. The question for the ECtHR is ultimately whether, viewed in the round, the trial could accurately be described as unfair. Thus in Barbera -v- Spain (1988) 11 EHRR 360, the ECtHR said this:
“As a general rule, it is for the national courts, and in particular, the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce. The Court must, however, determine ... whether the proceedings, considered as a whole, including the way in which prosecution and defence evidence was taken, were fair as required by Article 6(1).”
441. To the same effect are observations in Schenk -v- Switzerland (1988) 13 EHRR 242, Ferrantelli -v- Italy (1996) 23 EHRR 288 at paragraph 48, and Khan -v- United Kingdom (2000) 31 EHRR 45 at paragraphs 34-35. Indeed, both in Schenk and Khan, the ECtHR held that evidence which had been adduced by the prosecution had been obtained in breach of ECHR Article 8, but nonetheless concluded that there had been no breach of the accused's rights under ECHR Article 6(1).
442. In this connection, Lord Bingham of Cornhill said in Brown -v- Scott [2003] 1 AC 681 at 704D-F:
“The jurisdiction of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities. ... The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual ....”
443. Nonetheless, it does appear that the ECtHR is prepared to lay down some rules of fairly general application, and give a degree of general guidance as to the circumstances which could normally be expected to give rise to the conclusion that a trial was not fair. In Saunders -v- United Kingdom (1966) 23 EHRR 313, the court said this at paragraph 74:
“[T]he general requirements of fairness contained in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences, without distinction, from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings.”
444. In Teixeira de Castro -v- Portugal (1998) 28 EHRR 101, the ECtHR, after emphasising that the question of admissibility of evidence was generally for the national courts (paragraph 34), went on to say this in paragraph 36:
“The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement.”
The ECtHR concluded that:
“The two police officers' actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed. That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial.”
445. Most in point here, it appears that the use of evidence against an accused person in criminal proceedings which has been obtained from him through torture would inevitably result in his trial not being fair within the meaning of ECHR Article 6(1). This seems to have been accepted by the Council of Ministers, when they adopted the decision of the Commission in Austria -v- Italy [1963] YB 740 - see at 784. It also appears to have been assumed by Lord Hoffmann in Montgomery -v- HM Advocate [2003] 1 AC 641 at 649D-E in clear if obiter terms:
“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 a 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 purpose of determining the charge.”
446. The issue which therefore falls to be considered, as I see it, is whether it can be said that, particularly in light of Article 15 of CAT, the use of a statement, obtained from a third party by torture, against an appellant to SIAC under s25 of the 2001 Act would deprive him of a fair trial. I shall first consider the meaning of Article 15 of CAT and its inter-relationship with ECHR Article 6(1) - ie fairness in the wider perspective. I shall then turn to the effect of admitting in evidence a statement obtained from a third party by torture, against an appellant in a s25 appeal - ie fairness to the particular appellant.
447. On the wider perspective, the first question which has to be considered is whether admission of evidence obtained under torture in another country would involve an infringement of Article 15 of CAT. Technically, it might be said that such an argument must fail in limine, because, as I have mentioned, the Article merely imposes an international treaty obligation on the UK to put into effect exclusionary rules of court procedure in relation to statements obtained by torture. That argument, not, so far as I could see, advanced on behalf of the Secretary of State, is very unattractive, and is, in my view, to be rejected. The UK became party to CAT more than 15 years ago, and has had ample time to implement its obligation under Article 15. Furthermore, I do not think that, if one is otherwise entitled to treat Article 15 of CAT as informing the effect of ECHR Article 6, such a nice drafting point should carry any weight.
448. Another point which did not appear to be pressed on behalf of the Secretary of State, although it was briefly raised in argument, is whether Article 15 of CAT should be read as limited to evidence obtained by torture at the suit of, or within the jurisdiction of, the state in whose courts the evidence is sought to be admitted. I do not think that this would involve a legitimate reading of Article 15. The court should be reluctant to imply words into a provision of an international treaty (see per Lord Bingham in Brown at 703E-F), which is what such a construction involves. The point is underlined by the wide definition of torture in Article 1 of CAT. Furthermore, it seems to me that, where CAT intends the reference to torture to be limited to torture carried out within a particular state's jurisdiction, it says so: see for instance Articles 2(1), 12 and 13.
449. There was also a suggestion that Article 15 of CAT should not apply to the receipt of evidence in civil trials. I can see no basis for such a reading either as a matter of language or as a matter of policy.
450. More specifically, the Torture Committee, established under Article 17 of CAT, had no hesitation in holding in PE -v- France (2002) 10 IHRR 421, that Article 15 of CAT precluded evidence obtained by torture in one country being used in the court of another country, although, on the evidence, the Torture Committee was not persuaded that torture had in fact been used (see paragraphs 6.3 and 6.6). Accordingly, I am of the view that, if a statement, obtained by officials from another state from a third party under torture, is admitted in evidence by SIAC, it would be inconsistent with Article 15 of CAT.
451. Article 15 of CAT does not stand alone in international law by any means. For instance, Article 12 of the UN General Assembly Declaration 1975 provides that:
“Any statement which is established to have been made as a result of torture ... may not be invoked as evidence against the person concerned or against any person in any proceedings.”
The Human Rights Committee set up under the International Covenant on Civil and Political Rights (1966) said the same thing in March 1992.
452. When considering whether or not a person is entitled to (or has had) a fair trial under Article 6(1), regard can be had to the provisions of international treaties, and in particular to CAT. In paragraph 5 of its judgment in Al-Adsani, the ECtHR said this:
“The Convention, 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.”
453. In paragraph 146 of the judgment in Furundzija, quoted in full with approval by the ECtHR in paragraph 30 of its judgment in Al-Adsani, the International Criminal Tribunal for the former Yugoslavia referred to:
“The existence of [a] corpus of general and treaty rules proscribing torture [which] shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the inter-state level and at the level of individuals. No legal loopholes have been left.”
454. Two earlier decisions of the ECtHR are also in point in relation to torture. In Aydin -v- Turkey (1998) 25 EHRR 251, the ECtHR said this at paragraph 103:
“It is true that no express provision exists in the [ECHR] such as can be found in Article 12 of the [CAT Convention] which imposes a duty to proceed to a 'prompt and impartial' investigation whenever there is a reasonable ground to believe that such an act of torture has been committed .... However, such a requirement is implicit in the notion of 'an effective remedy' under Article 13 ....”
455. Soering -v- United Kingdom (1989) 11 EHRR 439 is to similar effect. In paragraph 87 the court said that:
“any interpretation of the rights and freedoms guaranteed [by ECHR] has to be consistent with 'the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society [quoting from an earlier judgment].”
456. After referring to ECHR Article 3, in the next paragraph the ECtHR stated that it's
“absolute prohibition of torture” was “also to be found ... in other international covenants on civil and political rights and the 1969 American Convention on Human Rights.”
457. In the same paragraph, after referring to Article 3 of CAT, the court said this:
“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 [ECHR] Article 3.”
458. V -v- United Kingdom (1999) 30 EHRR 121 is another example of international conventions affecting the construction of Articles of ECHR. In that case, a minor alleged that there was a breach of ECHR Article 3 because he was subjected to what the ECtHR called “criminal proceedings [which] took place over three weeks in public in an adult Crown Court with attendant formality, and that, after his conviction, his name was permitted to be published” (paragraph 75). The ECtHR then went on to refer to the guarantees provided by Article 40(2)(b) of the UN Convention on the Rights of the Child (1989), Rule 8 of the Beijing Rules, and the 1987 Recommendation of the Committee of Ministers of the Council of Europe. It then stated that these three documents:
“demonstrate ... an international tendency in favour the protection of the privacy of juvenile defendants, and ... in particular ... the UN Convention is binding in international terms on the United Kingdom in common with all other member states of the Council of Europe.”
459. It is right to mention that, in the same paragraph, the ECtHR went on to say that:
“Whilst the existence of such a trend is one factor to be taken into account when assessing whether the treatment of the applicant can be regarded as acceptable, under other articles of the Convention, it cannot be determinative of the question whether the trial in public amounted to ill-treatment attaining the minimum level of severity necessary to bring it within the scope of Article 3.”
460. It is, I think, worth emphasising the general aim of CAT as identified in Furundzija and quoted with approval by the ECtHR in Al-Adsani, when considering the wider context. If courts of states that are parties to ECHR decide that evidence obtained under torture is admissible, then, while not expressly condoning torture, they would effectively be indicating that the use of torture to obtain evidence is not merely impliedly condoned, but is worthwhile, because such evidence may well be taken into account in those courts.
461. The fact that the torture may have occurred in a country not a signatory to ECHR appears to me to be of no real significance. In Soering, the ECtHR held that it was wrong for the UK to extradite a person to Virginia, USA when this would be likely to result in treatment which, if it was in a state which was a party to ECHR would infringe ECHR Article 3. Indeed, the priorities engaged by ECHR as between torture abroad and domestic national security were described thus by Lord Hoffmann in Rehman, in paragraph 54:
“The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under [ECHR] Article 3. If there is a danger of torture, the government must find some other way of dealing with a threat to national security.”
462. I turn to the second aspect, namely the effect on an appellant under s25 of the 2001 Act of allowing the Secretary of State to adduce, and SIAC to take into account, evidence in the form of a statement by a third party made under torture to officials of other countries, in support of the case for saying that there are “reasonable grounds” under s25.
463. I accept, of course that there is a difference in principle, and in the degree of offensiveness, between relying on an accused's own confession obtained under torture by UK authorities, and relying on a third party's statement against an accused, obtained under torture by another state. Indeed, if there were no such difference, then I would, as a matter of logic, have reached a different conclusion on the appellants' case insofar as it is based on the common law. Nonetheless, the prejudice to an appellant, if one allows in a statement extracted from a third party under torture is obvious. Reliability is just as much a point as in relation to a confession obtained from the appellant himself.
464. Indeed, as already mentioned, it appears to me that, in some respects, it would be even more unfair on an appellant to rely upon a statement extracted from a third party under torture, than to rely upon a confession extracted from the appellant himself under torture. The appellant at least will know of all the circumstances in which the confession was extracted, and will be able to give evidence in court to explain those circumstances, and possibly to give other evidence to rebut the reliability of the confession. However, it will be a very rare case where the appellant would know very much about the circumstances in which the statement was extracted from a third party, or where the appellant would be able to arrange for evidence to be given about those circumstances. Almost by definition, he will not be able to call or cross-examine the third party with a view to the third party explaining or rebutting the statement. Indeed, if the third party were available, the statement extracted under torture would normally not be admitted, as he would be able to give evidence directly to the court.
465. Accordingly, particularly as the s25 appeal can result in an appellant being detained in prison for an extended period, it appears to me that, if the Secretary of State can rely on a statement obtained by torture from a third party, especially if that third party cannot be cross-examined, I would not find it easy to characterise the appeal process as “fair”, from the appellant's point of view. In this connection, it seems to me that, if a statement obtained by torture can be relied on, there is the rather sobering thought that one must proceed on the basis that the statement would be crucial. If the appeal would have failed without the admission of the statement, the statement would not have been needed. It is only if it is crucial that its admissibility would matter.
466. In relation to s25 appeals, I accept that there are arguments the other way, bearing in mind the existence of the terrorist threat identified in the Derogation Order, and the possible difficulty in obtaining evidence to satisfy even the relatively low threshold requirements of s25(2) of the 2001 Act.
467. Nonetheless, I have come to the conclusion that, bearing in mind that ECHR Article 6(1) must be treated as informed by other international treaties, the general international determination to eliminate torture in all circumstances, and the terms of Article 15 of CAT, coupled with the specific unfairness to an appellant against whom a statement obtained under torture is to be used, as the person who gave the statement will not be available for cross-examination, and as the statement will be relied on to justify detaining the appellant potentially indefinitely, I do not think that any party mounting a s25 appeal before SIAC can be said to have had fair trial within ECHR Article 6(1), if evidence obtained by torture is used against him.
468. There is one English authority which provides significant, if indirect, support for this conclusion. It is a decision of the Divisional Court, in R (Ramda) -v- Secretary of State for the Home Department (unreported, 27th June 2002), granting judicial review of an order extraditing the claimant to France. The French authorities wished to prosecute the claimant in connection with a series of terrorist bombings, and intended to rely on the evidence and confession of one Bensaid, which was given under torture. In paragraph 9, the Divisional Court said this:
“Among the issues for the Home Secretary to determine may be whether the trial to be faced by the wanted person will be a fair trial. This may involve the voluntariness of extra-judicial confessions relied on as evidence against him.”
469. In paragraph 16 of his judgment, Sedley LJ went on to consider the evidence said to support the contention that Bensaid's confession and evidence had been obtained with the assistance of violence. He said this:
“[Counsel for the claimant] contends that the central point remains unanswered: how did Bensaid come to have injuries ...? If there is no intelligent explanation, [counsel] submits that the Home Secretary would be justified in inferring - in fact might be driven to infer - that Bensaid had been beaten up, and at a time so closely prior to the admissions which form a crucial part of the case against both himself and the claimant as to taint them irredeemably with oppression. If so, and if the evidence is not going to be excluded at the claimant's trial, extradition - as [counsel for the Home Secretary] accepts - would be impermissible.”
470. Finally, in paragraph 22, Sedley LJ concluded:
“Questions of admissibility within the requesting state's criminal process are ordinarily for the courts of the requesting state to decide, especially where admissibility turns upon disputed issues of fact. It is only where it can be demonstrated that the approach taken by the requesting state's courts to admissibility will itself be such as to create a real risk of a fundamentally unfair trial that the principle of mutual respect ... may have to yield. In a case such as the present, this requires the Home Secretary to be satisfied of at least two things: that Bensaid's incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine any argument in the claimant's defence based on this contention.” (emphasis added).
471. It was not suggested on behalf of the Secretary of State that the decision in Ramda, which is not of course binding on us, was wrong, or that the concession recorded as having been made on his behalf in that case was misinterpreted or wrongly made. As mentioned, it appears to me that the decision and reasoning in Ramda provide significant support for the conclusion I have reached.
472. First, it seems to support the proposition that an accused will not receive a fair criminal trial under ECHR Article 6(1), if the evidence against him includes a statement obtained from a third party under torture. While I accept that a s25 appeal before SIAC is not a criminal trial of an appellant, I do not regard that distinction as very powerful, particularly given the nature of the proceedings, and the consequences of the s25 appeal failing, namely involuntary detention of the appellant, potentially for an indeterminate period. Secondly, although I accept that the decision in Ramda turned in a sense on the construction of ss12 and 13 of the Extradition Act 1989, it would seem very odd if the law of England was such that, on the one hand, its courts were permitted to receive in evidence statements obtained under torture while, on the other hand, its courts were bound to quash extradition orders because the person to be extradited would be prosecuted in a foreign court with the assistance of evidence consisting of a statement obtained under torture.
473. Accordingly, I consider that the appellants have made good their case as to the inadmissibility of statements given under torture. For reasons already discussed, rule 44(3) does not call this conclusion into question. The exclusion is required by what is ultimately a statutory provision, namely a Convention right under the 1998 Act. Further, rule 44(3) must be construed so as to be compatible with ECHR Article 6(1): see ss3 and 6 of the 1998 Act.
474. If my conclusions on the issue so far are correct, they may be said to be somewhat ironic: the common law of England, which has a particularly good record as to the vice of torture since 1640, does not exclude evidence obtained by torture, whereas the law of Europe, where the abolition of torture is rather more recent, would exclude such evidence. This does not cause me to doubt my conclusions. First, as I have explained, the effect of ECHR on the common law has, perhaps somewhat artificially, been excluded from consideration. Secondly, as also mentioned, common law lays somewhat more emphasis on pragmatism, whereas the approach under ECHR is perhaps rather more influenced by moral principle. Thirdly, the very fact that countries in mainland Europe have had a more chequered history over the past 300 years may render their courts more sensitive on issues such as torture. Fourthly, ECHR is an international convention and rather more prone to interpretation by reference to other such conventions than the common law.
Evidence obtained by torture: the case based on derogation
475. The appellants developed a further argument, albeit that it was somewhat unclear whether it was intended to be a free-standing argument, or an argument bolstering their case based on the common law and/or ECHR Article 6(1). The argument is to this effect. The derogation effected by the Derogation Order must, in order to be valid, not be “inconsistent with [the UK's] other obligations under international law”: see the closing words of ECHR Article 15(1). Therefore, if SIAC can rely on evidence obtained by torture, that means that the UK is in breach of its obligations under Article 15 of CAT, and consequently in breach of one of its obligations “under international law”. Accordingly, unless SIAC is somehow precluded from relying on evidence obtained by torture, the derogation effected by the Derogation Order must be ineffective, and consequently the provisions of the 2001 Act is incompatible with ECHR Article 5(1)(f).
476. This argument was initially advanced on the basis that it was a reason for concluding that evidence obtained by torture could not be presented to, or relied on by, SIAC, by virtue of ECHR Article 6(1), or even under the common law. However, it seems to me that that cannot be the right analysis. Neither the contents of the common law nor the meaning of ECHR Article 6(1) can depend on the terms or effect of a purported derogation by the UK government under ECHR Article 15, nor by the provisions or effect of a UK statute. To my mind, if the appellants' argument is correct in principle, then, in light of s3 of the 1998 Act, this court should first attempt to construe the 2001 Act and/or the SIAC rules in such a way as precludes SIAC from entertaining evidence obtained by torture, or (by necessary inference) it must conclude that the 2001 Act is, to this extent, incompatible with ECHR, which would present an obvious difficulty, because, even now, the appellants do not seek a declaration of incompatibility.
477. If the appellants' point is a good one, it seems to me that it can be solved in this way. SIAC, as an organ of the UK government for this purpose, is obliged to comply with ECHR if it is possible for it to do so. If it admits and relies on evidence obtained by torture in order to uphold a certificate against a particular appellant, then that would put the UK, in breach of ECHR Article 5(1)(f), because, if the argument of the appellants is correct, the derogation would be ineffective.
478. If the argument is right, then one must look to see whether there is anything in a statute or statutory instrument which can be said to require SIAC to admit evidence obtained by torture. In my view, there is no such requirement in the 2001 Act, or in the 2003 Rules. The only possible relevant provision to which our attention was drawn was Rule 44 of the 2003 Rules, and I do not see how it can be said that that can be construed as requiring SIAC to admit evidence obtained by torture. It merely disapplies the normal rules of evidence. However, if, by admitting evidence obtained by torture, SIAC would inevitably put the UK government in breach of the appellants' rights under ECHR, it seems to me to follow that it is not merely a rule of evidence, but a fundamental point of principle, that SIAC should not admit evidence obtained by torture.
479. The central question, therefore, appears to me to be whether the derogation would be ineffective if SIAC were to admit and rely on evidence obtained by torture. The first point made on behalf of the Secretary of State is that it is not open to this court to question the validity of the derogation. This point is based on the contention that, as ECHR Article 15 is not a Convention right under Schedule 1 to the 1998 Act, ie it has not been incorporated into English law, this court cannot inquire as to whether its provisions have been complied with.
480. In resolving that argument, an English court's starting point must, I think, be the 1998 Act. The effect of s1(1) and (2) of that Act is that ECHR Articles 2-12 and 14 “have effect ... subject to any designated derogation ...”. The question, as I see it, is therefore whether a derogation contained in a statutory instrument, which is susceptible of being held to be unlawful under the terms of ECHR Article 15(1), which is not an Article referred to the 1998 Act, is, nonetheless, a “designated derogation”. If it is, then an English court must give effect to it. In this connection, s14(1) defines such a designated derogation as:
“any derogation by the United Kingdom from an Article ... which is designated for the purposes of this Act in an order made by the Secretary of State.”
481. On the face of it, there is an Order which has been laid before, and effectively approved by, the legislature, under which the UK government has derogated from an Article of the ECHR. The appellants' contention is effectively that if evidence obtained by torture is admissible before SIAC, the derogation is invalid in light of ECHR Article 15(1). The notion that a provision in, or the whole of, a statutory instrument can be declared unlawful and ineffective by the court is, of course, well-established. However, the court can only reach such a conclusion on the basis of English law, that is common law or statutory law. Insofar as an English court relies on international treaties, it can only do so insofar as the treaties are incorporated into English law, as pointed out by Lord Hoffmann in paragraph 27 in Lyons.
482. The appellants' contention that the derogation effected by the Derogation Order would be unlawful rests on the closing words of Article 15(1). However, that Article is not incorporated into English law, because it is not identified as a Convention right under the 1998 Act. In those circumstances, it appears to me that it may well not be open to an English court to conclude that a derogation effected by the UK government purportedly pursuant to ECHR Article 15, and embodied in something which is plainly a “designated order”, was ineffective because it does not comply with, or satisfy the requirements of, ECHR Article 15. Indeed, if that is right, then, even if the court was satisfied that the derogation did not satisfy ECHR Article 15, I doubt it would be open to the court to make a declaration of incompatibility under s4 of the 1998 Act. That is because, under s4(2) the court has to be satisfied that “the provision is incompatible with a Convention right” which brings one straight back to the definition of Convention rights in s1.
483. A troubling aspect of this argument, is that it does not seem to have been raised in A -v- Secretary of State. In part (6) of his judgment in that case, Lord Woolf, at paragraphs 32-36, expressly considered “whether there has been compliance with the threshold requirements for derogation. There does not appear to have been any suggestion in that case, either in argument or from the court, that that was not something which it was open to an English court to consider. (In this connection see also paragraphs 72-85 and 99 of the judgment of Brooke LJ, and paragraphs 140-151 of the judgment of Chadwick LJ). It may be that it was assumed (possibly correctly) that the reference to derogation in s14(1) of the 1998 Act should be interpreted as referring only to a lawful or effective derogation.
484. Even if the English courts cannot rule on the effectiveness of a derogation, I do not think that it would follow that it would not be open to an English court, when determining an issue, to take into account the fact that, if it is determined one way, it would involve the UK infringing the ECHR. It is clear from the observations of Lord Bingham and Lord Hoffmann in Lyons that the English courts, even before the 1998 Act came into force, were influenced, in many cases strongly, by the provisions of the ECHR, even though they were not at that time incorporated into English law. By the same token, it appears to me that this court can properly be influenced by the fact that, if a certain point is determined one way, it would appear to result in a purported derogation by the UK government pursuant to ECHR Article 15(1) being ineffective.
485. I turn to the Secretary of State's second point in this connection, which is that, in any event, the closing words of ECHR Article 15(1) are not of assistance to the appellants' contention in this case. The derogation effected by the UK government, as expressed in the Derogation Order, was limited to ECHR Article 5(1)(f). In A -v- Secretary of State, Lord Woolf had no difficulty in rejecting an argument on behalf of the Secretary of State that the derogation effected by the Derogation Order, although only expressed in relation to ECHR Article 5(1)(f), also involved an implied derogation in relation to ECHR Article 14 (see paragraphs 30 and 31).
486. However, I do not accept that it follows that, in order to determine whether the requirements of ECHR Article 15(1) are satisfied, one must confine oneself to considering that issue in relation to ECHR Article 5(1)(f). First, it does not accord with the view taken by SIAC, not appealed by either party, in A -v- Secretary of State. Secondly, that does not seem to me to be what ECHR Article 15(1) naturally means. Thirdly, it would involve a triumph of form over substance, and provide an easy and attractive escape route for a government which wished to derogate. It would mean that a derogating government could, whether in good faith or artfully, identify a single Article or sub-Article from which it was purporting to derogate, which would then shut out the possibility of any argument that it had in fact derogated from other Articles or sub-Articles of ECHR, for the purpose of considering the lawfulness of the derogation under ECHR Article 15. That cannot be right.
487. It is necessary, as I see it, to inquire into the nature of the powers which the derogating government is seeking to exercise in order to decide whether the requirements of ECHR Article 15(1) are satisfied. I accept that one must look at the provisions of Part 4 of the 2001 Act as a whole in order to decide what it is that the UK government is enacting in connection with, or even as a result of, its purported derogation. However, I do not consider that a challenge to the validity of a derogation under ECHR Article 15(1) can properly involve an inquiry as to whether every possible step permitted or required to be taken as a result of, in connection with, or even as part of, the overall statutory scheme of the act involving a derogation can be the legitimate subject of an inquiry to see whether one of those steps happens, in a certain respect, to involve a breach of one of the UK's many international treaty obligations.
488. The result of such a construction would, to my mind, be little short of absurd. Virtually every measure involving a derogation under ECHR Article 15 will involve depriving some individuals of one or more of what would normally be their ECHR rights. Unless the right actually removed is a right to a hearing in some shape or form, any such country could normally be expected to give the individual from whom the right is removed an opportunity to challenge the relevant executive decision against him in a court. That would normally be expressed, although it could be implied, in the relevant measure enacted by the legislature of the relevant state. If the appellants' argument is right, it would mean that, in almost every case of a purported derogation, the ECtHR would be entitled to consider virtually the whole of the civil or criminal procedure rules and practice of the courts of the state concerned, with a view to seeing whether there was anything in those rules that breached any international treaty to which the state concerned was a party. That is merely one result, albeit a relevant and rather stark result, of the construction of Article 15(1) advanced by the appellants. For my part, I cannot accept it.
489. Having said that, I would accept that it is difficult, probably impossible, to define quite how far one can go when considering the extent of a particular measure which involves derogation under ECHR Article 15, in order to see whether it complies with the relevant state's international treaty obligations. However, in the present instance, I would accept that it would probably be open to a court considering the validity of the derogation to consider any specifically prescribed variations from the normal procedures of courts and tribunals adopted under the 2003 Rules as this court did, albeit in the context of ECHR Article 6(1) in A -v- Secretary of State.
490. I do not consider that the relaxation of the ordinary rules of evidence by virtue of Rule 44(3) assists the appellants' case. If the normal principles of English law do not exclude from evidence statements obtained by torture, then the appellants' case based on derogation would ultimately rely on contending that the normal principles of English law infringed Article 15 of CAT, not that the special procedure adopted under, or in connection with, Part 4 of the 2001 Act had a special provision which infringed Article 15 of CAT and was an exception to the normal rules of admissibility in English courts.
491. In these circumstances, I do not accept the appellants' contention that the fact that the provisions of the 2001 Act required the UK government to effect a derogation pursuant to ECHR Article 15(1) would be of assistance in determining whether or not SIAC is entitled to rely on evidence obtained by torture.
Admissibility of statements obtained under torture in principle: conclusion
492. In these circumstances, I am of the view that, while the arguments based on the common law and the Derogation Order are not of assistance to the appellants on the issue of admissibility, they are nonetheless correct in their contention that a statement made under torture cannot be put before SIAC on a s25 appeal, or taken into account by SIAC when determining a s25 appeal, because it would otherwise represent an infringement of ECHR Article 6(1). It appears to me that an appellant in a s25 appeal, against whom a statement obtained by torture is used in evidence, and relied on in rejecting his appeal has not had a fair trial, within the meaning of ECHR Article 6(1).
493. I should mention two arguments which were raised on behalf of the Secretary of State to call this conclusion into question. The first argument is that the exceptional risk posed by Al-Qa'eda, and the difficulty of obtaining evidence against people connected with it, may justify putting before SIAC statements obtained by torture as evidence against suspected terrorists. The second argument is the incongruency of SIAC not being permitted to rely on a statement obtained by torture when considering whether or not to revoke a s21 certificate, in circumstances where there appear to be no reasons why, when such granting the certificate, the Secretary of State should not be able to take into account, indeed might regard himself as obliged to take into account, such a statement.
494. I accept that the legislature has formed the view that Al Qa'eda poses a serious and potentially imminent threat to the security of the realm, and I am also prepared to accept that there are obviously difficulties in finding evidence that person is a member of, or connected with, Al Qa'eda. As a result, I have little doubt but that there may be some, possibly many, members of the public who would regard it as relatively unexceptionable that the Secretary of State should be able to rely as evidence against an appellant, on a statement obtained under torture (at least if it was not torture to which the UK authorities were in any way party). However, in the first place, I have based my conclusion on the provisions of the ECHR and CAT Convention, to both of which the UK government is, and has been for many years, a party. Both those conventions make it clear that torture cannot be justified, however grave and extenuating the circumstances. The ECHR does this through the exclusion of Article 3 from the right to derogate under Article 15. CAT does this by making it clear in terms that torture will never be acceptable - see Article 2(2) thereof. In those circumstances, it is not particularly surprising that there should be a rule that evidence obtained by torture should not be admissible in a court.
495. Secondly, in rejecting the argument based on necessity or exceptional circumstances, I derive support from the decision of the Supreme Court of Israel in Public Committee against Torture in Israel -v- Israel (1999) 7 BHRC 31. In that case, the Israeli Supreme Court had to consider the lawfulness of the use of torture carried out by Israeli security troops on suspected terrorists. Their conclusion in paragraph 38 was this:
“According to the existing state of the law, neither the government nor the heads of security services possess the authority to establish directives and bestow authorisation regarding the use of liberty infringing physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general directives which can be inferred from the very concept of an interrogation .... An investigator who insists on employing these methods, or does so routinely, is exceeding his authority. ...”
496. In paragraph 39 the Israeli Supreme Court referred to:
“the difficult reality in which Israel finds herself security-wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one had tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. This having been said, there are those who argue that Israel's security problems are too numerous, thereby requiring the authorisation to use physical means. If it will nonetheless be decided that it is appropriate for Israel, in light of its security difficulties to sanction physical means in interrogation ... this is an issue that must be decided by the legislative branch which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed.”
497. I accept, of course, that that case was concerned with actual acts of torture carried out by agents of the Israeli government. However, in my view, those observations emphasise two points. First, democratic societies, faced with terrorist threats, should not readily accept that the threat justifies the use of torture, or that the end justifies the means (as Lord Steyn said in Latif). Indeed, it can be said that, by using torture, or even by adopting the fruits of torture, a democratic state is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys. Secondly, if it is thought to be appropriate for a democratic state, or any of its organs, to torture, or to enjoy the fruits of torture, then it is for the democratically elected legislature, after a full and informed public debate, to spell out that intention unequivocally in appropriate legislation.
498. Thirdly, if I am wrong in my conclusion that evidence obtained by torture is inadmissible, at least in a case such as this, then there are two possibilities. Either evidence obtained by torture is always admissible, or its admissibility is a matter for the court. I find the first of those two alternatives very unattractive: the notion that a court would be obliged to admit a statement obtained under torture, however disgusting the torture may have been, and however unacceptable its use may have been, even to those who might accept that torture might be justified in certain exceptional circumstances, seems to me wrong. I would therefore reject such a contention.
499. That leaves one with the proposition that it would be a matter for the court, in each case, to decide whether to admit evidence obtained by torture, on the basis that the fact that it was obtained by torture would be a reason, but not a requirement, for refusing to admit it. If that was the law, it would place a court in a very difficult position. The personal attitude of the judge would almost inevitably play a substantial part in the decision of whether to admit such evidence. That is a recipe for inconsistency, which in turn impinges negatively on the reputation of the justice system. Further, it would be difficult to know how to balance the fact that a statement has been given under torture against the sort of reasons which might be advanced for allowing the statement in. One would be balancing competing factors which have nothing to do with each other: that is also a recipe for inconsistent decisions.
500. The fact that the Secretary of State may (and, in my view, would) be entitled to take into account a statement obtained by torture has some force, as I have mentioned when considering the common law position. However, it does not, at least in my judgment, cause any difficulty of principle. It is by no means inconceivable for the executive to make decisions based on certain evidence and for certain reasons, but when the court comes to consider the lawfulness of the decision, some of those facts and reasons cannot be put before the court. An obvious example is where a decision is based partly or wholly on facts contained in documents which are subject to public interest immunity. As Bingham LJ said in Makanjuola -v- Commissioner of Police for the Metropolis [1992] 2 All ER 617 at 623 (in a passage approved by the House of Lords in R -v- Chief Constable of West Midlands Police ex p Wiley [1995] 1 AC 274 at 296C and 308B):
“Where a litigant asserts the documents are immune from production or disclosure on public interest grounds he is not (f the claim is well founded) claiming a right, but observing a duty. Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation.”
Accordingly, the fact that my conclusion would result in there being occasions where the Secretary of State would not be able to put all the evidence, which he took into account when deciding to issue a s21 certificate, before SIAC when it considers a s25 appeal against the issue of a certificate, does not represent a new or unusual state of affairs.
501. Furthermore, as was pointed out by Lord Woolf in paragraphs 9, 15 and 34(vi) of his judgment in M -v- Secretary of State, when entertaining an appeal under s25 SIAC is not reviewing the exercise of the Secretary of State's power to issue a certificate under s21. It is carrying out its own assessment, namely whether there are, at the date of the hearing of the s25 appeal, “reasonable grounds”, based on the evidence before it. The Secretary of State may himself accept that evidence, which appeared to him to have weight - possibly substantial weight - when he issued a certificate can be shown to be wholly valueless by the time a s25 appeal is heard. Accordingly, it should not cause much surprise that there could be circumstances where the Secretary of State may not be able to put before SIAC on a s25 appeal, evidence which he took into account under s21.
Evidence obtained by torture: two further issues
502. Having decided that a statement obtained by torture cannot be relied on in a s25 appeal, two questions remain. The first is the extent of that principle. The second is to identify who has the burden of proof, and what is the standard of proof.
The extent of the exclusion of evidence obtained by torture
503. At least in the case of a statement extorted by torture, it appears to me that there are three levels of evidence. The first is a simple confession or accusation. The second is a confession or accusation which contains confirmation, or what ultimately transpires to be objective confirmation, of its accuracy. The third is a confession or accusation which leads to evidence which confirms the confession in such a way that the confession is no longer needed. The difference between the three categories can be demonstrated by an example involving a person suspected of having brought a dangerous chemical into the country. The first level is where the suspect admits, under torture, having brought the chemical into the country. The second is where, under torture, he admits having brought the chemical into the country, and says where he has concealed it, as a result of which the authorities find the chemical. The third level is similar to the second, save that the authorities also find the suspect's fingerprints on the packaging of the chemical.
504. In light of my conclusion, and the reasons for it, there are obviously very strong arguments for contending that all three categories of evidence should be excluded, even where the statement is made by a person other than the accused. The first is a simple confession or accusation under torture, and should plainly be excluded; indeed, as I have already mentioned, the exclusion can be justified on the simple grounds of unreliability. The second, is more difficult, because, in order for there to be good evidence against the suspect, it would be necessary not merely to disclose the finding of the chemical, but also the fact that he had told the authorities where to find the chemical, and that would involve putting before the tribunal what he had said under torture. In my view, this second category of evidence (which is, as I have already suggested, unlikely to arise where one is considering a third party statement, rather than a statement given by the suspect himself) must also be excluded, albeit only insofar as it relates to the statement. The essential point is that it does not merely involve putting evidence before the tribunal which was attributable to the fact that the suspect was tortured, but actually giving direct evidence of what he said under torture.
505. Real difficulty is presented by the third category, because there is no need to rely upon the evidence actually given under torture: all the prosecuting authorities need rely on is the finding of the chemical together with the suspect's fingerprints on its packaging. There is obviously a powerful argument for saying that none of that evidence should be permitted to be adduced, on the basis that it was only obtained as a result of torture. If the fundamental reason for excluding evidence obtained by torture is due to the revulsion on the part of the international community and the signatories to the ECHR against torture, and that revulsion extends to evidence obtained by torture, as enshrined in Article 15 of CAT, there is obviously powerful logic in the contention that the exclusion of evidence obtained by torture should apply to all evidence obtained by torture and not merely to evidence given under torture.
506. Despite this argument, I have come to the conclusion that what I have called the third category of evidence, namely evidence obtained as result of torture, but not involving putting before the court evidence of what was actually said under torture, is admissible. First, there is the wording of Article 15 of CAT itself. As a matter of ordinary language, it appears to me to exclude statements given under torture, not evidence obtained as a result of torture. Secondly, while it may appear formalistic, even hypocritical, it appears to me that one is here concerned with evidence given to the court, and what the court can legitimately object to should be statements given under torture. In other words, what the court should set its face against is evidence in respect of which the person against whom it is given is able to say that it was given under torture, whether it was given by him or some other person. That would not apply to the third category of evidence. Thirdly, for what it is worth, this conclusion is consistent with what I understand to be the common law position in this country, and, indeed, the current statutory position, as embodied in ss76 and 78 of the Police and Criminal Evidence Act 1984 (“the 1984 Act”).
Evidence obtained by torture: burden and standard of proof
507. If a statement obtained by torture is not properly admissible before SIAC, the next issue is whether it is for an appellant to prove that statement was obtained by torture, or for the Secretary of State to prove that it was not obtained by torture. Having decided on whom the burden lies, the question is whether the burden has to be discharged by establishing that torture was (or was not) used, on the balance of probabilities, or beyond reasonable doubt. The Secretary of State's contention is that it is for the appellant to prove that a statement was obtained by torture and he further contends that the normal, civil, standard of proof, would apply, namely the balance of probabilities. The contention on behalf of the appellants is that it is for the Secretary of State to show that any statement he relies on was not obtained by torture, and that he has to establish this beyond all reasonable doubt.
508. It is clear from s76(2) of the 1984 Act that, in the case of confessions by an accused in criminal proceedings, it is for the prosecuting authorities to establish beyond reasonable doubt that the confession was given voluntarily. On the other hand, in civil proceedings, one would, at any rate at first sight, expect the normal principles to apply, namely that the person who makes the allegation must prove it on the usual balance of probabilities, and consequently that the burden of proof would be on the appellant to establish that a statement was obtained by torture. However, bearing in mind the unusual nature of these proceedings, and the fact that evidence obtained by torture is to be excluded as a result of the fair trial requirement of ECHR Article 6(1), I do not consider that these domestic law principles are of much assistance.
509. I turn to relevant decisions of international courts. In PE -v- France, it seems clear that the Torture Committee concluded that it was for the person alleging that evidence had been obtained under torture to prove his case. In paragraph 6.6 of its decision, the Torture Committee stated that “it is for the author to demonstrate that he allegations are well-founded” and that, in light of this case the Torture Committee “cannot conclude that it has been established that the statements at issue were obtained as a result of torture”.
510. However, in The Prosecutor -v- Delalic (unreported) the International Criminal Tribunal of the former Yugoslavia had to consider the application of rule 95 of its Rules which provides:
“No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to or would serious damage the integrity of the proceedings.”
In paragraph 41 of its decision, the Tribunal said it had “no doubt” that statements obtained involuntarily from a suspect, could not be admitted. In paragraph 42 the Tribunal said this:
“The burden of proof of voluntariness or absence of oppressive conduct in obtaining a statement is on the Prosecution. Since these are essential elements of proof fundamental to the admissibility of a statement, the Trial Chamber is of the opinion that the nature of the issue demands for admissibility the most exacting standard consistent with the allegation. Thus, the Prosecution claiming voluntariness on the part of the Accused/Suspect ... is required to prove it convincingly and beyond reasonable doubt.”
511. Given these inconsistent views expressed in international tribunals, and that, in any case, they were concerned with criminal cases, whereas the present proceedings are not strictly criminal, I consider that one must go back to first principles.
512. The Secretary of State contends the normal rule that he who asserts must prove, and the way in which Article 15 of CAT is worded, both point in favour of the appellant having to establish that the evidence in question was obtained by torture. For the appellants, it is contended that it is unrealistic and unfair, because the source of the evidence will often be unclear, and, in many cases, it may well be that the evidence cannot even be shown to an appellant, but only to his Special Advocate (and even they will have little idea as to the circumstances in which the evidence was obtained).
513. On the basis that this problem is to be solved purely by reference to domestic law, while I accept that the Secretary of State's case to the contrary is powerful, I am of the view that the burden should be on him. First, it is the Secretary of State who will be adducing, and seeking to rely on, the statement said to have been obtained by torture. He is more likely to know of the circumstances in which the statement was obtained than is the appellant. Secondly, domestic criminal law places the burden of establishing that a confession was voluntary firmly on the prosecution - see s76 of the 1984 Act. Thirdly, an appellant on an appeal under s25 of the 2001 is, as Lord Woolf acknowledged in M -v- Secretary of State at paragraph 13, at a particular disadvantage which, if it cannot be avoided, should be “minimised”. In particular, it appears quite unfair that the burden should be on an appellant when he will not know the nature of the evidence invoked against him before SIAC.
514. It also appears to me that the standard of proof should be the civil, and not the criminal standard. First, as a s25 appeal is civil, the civil standard appears more appropriate. Secondly, even allowing for the difficulties of the appellant, it would be unduly onerous to require the Secretary of State to provide beyond reasonable doubt that a statement which he did not obtain, and was not party to obtaining, was or was not obtained by torture.
515. The exclusion of a statement obtained by torture is justified by ECHR Article 6(1), which itself requires a fair trial. The fairness of the trial is not merely to be judged by reference to what evidence is to be excluded, but also upon the principles which govern the means of establishing whether the evidence is of a nature which should be excluded. In the present case, I think it is important to bear in mind that the sort of evidence with which the present point is concerned would, presumably, be a statement allegedly made to a member of the police force, armed services, or secret services, of another country, which is then passed on, officially or unofficially, to a representative or agent of the UK government. The degree to which the Secretary of State will be able to identify the provenance, let alone many details of the provenance, of the information, will often be slight. The ability of the Secretary of State to make investigations will also be slight in many cases. Having said that, the position of an appellant, with no official position, and (save in the most exceptional circumstances) far fewer (if any) sources of information, and far less (if any) money available to him, will be even worse.
516. In these circumstances, subject to what I say below, it seems to me that the requirement of a fair trial would place on the Secretary of State the burden of proof of establishing that the evidence on which he seeks to rely was not obtained by torture, but that the burden of proof is the civil one, namely the balance of probabilities. It can be said with some force that it is unfair to place the burden of proof on the Secretary of State, but the answer to that, in my view, is that it would be even more unfair to place the burden of proof on an appellant. Given my conclusion that a statement obtained under torture cannot be used in evidence, and given the almost insurmountable difficulty an appellant would have in establishing anything about the circumstances in which much of the Secretary of State's evidence was acquired, placing the burden of proof on an appellant would be tantamount to taking away with one hand what has been given with the other. As to the contention that the standard of proof should be the criminal standard, it seems to me that the way in which the evidence will have reached the Secretary of State is such that it would be normally be unrealistic to place any such standard of proof in relation to the circumstances in which the evidence was obtained.
517. This conclusion must, however, be a qualified or provisional one. Once one bears in mind the exceptional nature of the proceedings before SIAC, and the inevitable uncertainties regarding the circumstances in which the evidence was obtained, I think it would be very dangerous to proceed on too analytical or absolute a basis on the question of who must establish whether a statement was obtained under torture or not. Earlier in this judgment I discussed the basis upon which SIAC should reach a conclusion as to whether or not there are reasonable grounds within s25(2)(a). The exercise is not one which, to a substantial extent requires, or even permits, the assessment of evidence in a manner which any criminal court, or indeed any civil court, would normally set about its task. Nonetheless it is appropriate that it is a court which carries out this function, because courts are used to assessing evidence, risks and the reasonableness of grounds or beliefs. In other words, when it comes to assessing, on the basis of the evidence, whether there are “reasonable grounds”, SIAC will be carrying out a familiar task, but will be doing so on evidence which would not normally be admissible in any court, and which will not be assessed by reference to normal burdens or standards of proof.
518. To a significant extent, I consider that similar principles should apply when SIAC has to consider a dispute as to whether a statement upon which the Secretary of State wishes to rely was obtained by torture. In considering that issue, SIAC will, no doubt, frequently be called on to rely upon evidence which would not be admissible in a criminal court, or even normally in a civil court, consisting of, for instance, newspaper reports, Secret Service reports and the like. When considering whether a statement was obtained by torture or not, SIAC will, ultimately, have to come to the sort of decision with which criminal, and indeed civil, courts are familiar, namely, whether, on the balance of probabilities, certain primary evidence (albeit that it is not being provided in its primary form) was or was not obtained in a certain way. In reaching its conclusion on this point, however, SIAC will find itself taking into account evidence, and possibly, argument, which would not normally be admissible or advanced to a court.
519. So far as the burden of proof is concerned, I consider that SIAC should bear in mind the difficulties which both parties face in relation to establishing the circumstances in which the primary statement was obtained. This will inevitably mean that, although the initial burden ultimately rests on the Secretary of State, the sort of evidence which might be sufficient to discharge that burden would be such as might not be very convincing in the context of civil, let alone criminal proceedings. Having said that, it is only fair to the appellants to add that precisely the same considerations would apply to the admissibility and value of the evidence and arguments which they may wish to advance to support the contention that the Secretary of State will not have discharged the burden of proof resting on him.
520. I have considered whether it could be said that it is, in fact, unnecessary, indeed inappropriate, for SIAC to reach a conclusion that a statement was, or, as the case may be, was not, given under torture, and that it could merely take into account, when considering all the evidence and arguments in the round, that the statement in question may (or could conceivably, or is very likely to) have been obtained under torture as part of the overall exercise of deciding whether or not there are “reasonable grounds” within s25(2)(a) of the 2001 Act. At first sight, such a course, which was not pressed by any party on this appeal, has its attractions, not least because it could be said to be consistent with the general approach to the assessment which SIAC has to carry out, and, indeed, consistent with some of the comments in Rehman, particularly what was said by Lord Hoffmann at paragraph 56.
521. However, it appears to me that this is not a sensible, or indeed a permissible, course. Although SIAC's general approach to the evidence and arguments must involve considering whether, taken in the round, there can be said to be “reasonable grounds” for suspicion or belief sufficient to satisfy s25(2) of the 2001 Act, it is still necessary to decide what factors can properly be taken into account when considering that question. If a statement made under torture is not properly admissible, then it has to be excluded from those factors. Accordingly, once it is rationally contended that a statement, which might otherwise properly be relied on, was obtained under torture, I consider that SIAC must determine whether it was, in fact, so obtained.
Complaints about the hearing before SIAC
522. On the basis of my view of the arguments, the appellants have succeeded on one issue of principle which has been argued before us, namely whether or not SIAC is entitled to receive and take into account as evidence statements made by third parties under torture, and, albeit to a qualified extent, the appellants have also succeeded on the question of the burden of proof in connection therewith.
523. If I am right in this connection, it will probably be necessary for this court to go on to consider, in relation to each of the appellants, each item of evidence which was before SIAC and consisted of a statement made by a third party who is said by the appellants to have made the statement under torture. In particular, it will be necessary to consider whether SIAC made a finding as to whether or not the statement was obtained by torture, and, whether, in reaching its conclusion, SIAC applied the right burden and standard of proof. If is appears that SIAC went wrong in connection with any such item of evidence in relation to a particular appellant, it will be necessary to remit his appeal to SIAC. Indeed, as at present advised, it seems to me that if there is any real possibility of SIAC having gone wrong in connection with a particular piece of evidence, justice would require the appeal to be remitted to SIAC.
524. In light of the discussions which took place at the beginning of the hearing of this appeal, it may well be that, at least in the case of some of the appeals, the Secretary of State would agree to the appeal being remitted to SIAC without a further hearing. That could only be done with the formal agreement of the Secretary of State.
525. However, in light of the fact that Pill and Laws LJJ do not take the same view as I do as to the inadmissibility of statements obtained under torture, none of these matters need to be considered.
526. That does not dispose of all the complaints raised by the appellants. Three further complaints are raised about the conduct of the hearing of the instant appeals before SIAC. The first concerns disclosure. The second concerns the weakness of the Secretary of State's evidence in some of the appeals. The third concerns a late amendment which the Secretary of State was permitted to make.
527. Before considering these complaints in turn, it is fair to say, at least on the face of it, that they would not appear to be very strong. First, each of them concerns the sort of matter which is ultimately a case management decision, with which an appellate court is normally very reluctant to interfere. Secondly, as I have already mentioned, it is clear from its judgments in each of the ten appeals that SIAC has very carefully considered each of the arguments and points raised by the parties. Thirdly, the right of appeal to this court from SIAC can only be exercised in relation to a point of law. While the combined effect of these three factors obviously gives rise to problems for an appeal based on the sort of complaints which I am now considering, it would be wrong to dismiss such complaints out of hand. If SIAC went wrong in relation to any of the matters complained of, it might be possible to characterise the mistake as one of law. Furthermore, given the grave potential consequences (prison without a criminal trial) for an appellant if SIAC made an error which rebounded to their disadvantage, it seems to me that this court should not be over-eager to dismiss an appeal on the grounds that it does not raise a point of law, if it has concluded that SIAC may well have gone wrong in a certain respect.
528. Before turning to the three specific complaints, there is one other more general point I should make. It is idle to pretend that there is nothing whatever in any of the three complaints to which I have referred. The procedure before SIAC was less than perfect. However, even bearing in mind the potentially very grave consequences for an appellant if his s25 appeal to SIAC is dismissed, it cannot possibly justify this court ordering a rehearing because the hearing before SIAC could have been better in certain respects. First, almost by definition, no hearing before any tribunal is perfect, in the sense that, with wisdom of hindsight, one can think of steps that might have been taken, or which might have been taken better, more fairly, or earlier, than they actually were. Perfection is unattainable at a hearing, and if its absence justified this court ordering a rehearing, there would never be an end to it.
529. In order to justify this court remitting an appeal to SIAC for rehearing, we would have to be satisfied that there was not merely an imperfection, but an imperfection which amounted to an error of law, or which involved some degree of potential unfairness on the appellant. Many complaints about the conduct of a trial involve criticising the tribunal for a decision which was ultimately one for its discretion. In such a case, it is normally fatal to an appeal if the discretion was exercised in a lawful way, which is not necessarily the same as the way in which the appellate court would have exercised the discretion if it had been the court trying the matter.
530. Furthermore, it is worth remembering that, as the generic judgment in this case shows, SIAC was doing its conscientious best an early stage of its existence, in carrying out an exercise in sensitive circumstances, bearing in mind the competing interests to which I have to more than once referred. There is no doubt that the Secretary of State and his advisors, the barristers and solicitors involved in these proceedings, and the members of SIAC themselves, will have learnt lessons in relation to procedure and disclosure as a result of these very proceedings. However, if a mistake was made in relation to the proceedings, or to disclosure, and that mistake caused material potential unfairness to an appellant, I do not intend thereby to suggest that his appeal should not be remitted to SIAC simply because everyone was at a relatively earlier stage of the learning process. However, I think it is fair to bear that factor in mind when evaluating any criticism of the procedure adopted, or the disclosure process, in these appeals.
531. The appellants' complaint about disclosure is that the Secretary of State has not demonstrated that he has given full disclosure of documents in relation to each of the appeals. In this connection, we were told by leading counsel on behalf of the Secretary of State that the disclosure exercise was initially carried out by lawyers working in, or effectively at the direction of, the Treasury Solicitor's department, but that leading and junior counsel instructed on behalf of the Secretary of State were also involved in the process, albeit relatively late on.
532. I am unpersuaded that there is anything in this complaint. In any proceedings, the disclosure exercise must involve the parties either trusting each other to carry out the initial sifting process, often with the benefit of advice from their respective lawyers, or being able to establish, by various possible different means, that full disclosure has not taken place.
533. Quite apart from the assurances that we have been given by experienced and respected counsel, instructed by and in the presence of representatives of the Treasury Solicitor, there is nothing in the voluminous documentation, or as a result of cross-examination or any other source, which leading and junior counsel (including Special Advocate) and the two firms of solicitors instructed by the various appellants, have been able to put forward to suggest that the Secretary of State's disclosure has been partial or incomplete.
534. In saying this, I do not underestimate the difficulties in which an appellant finds himself in a case such as this, and the inevitable suspicion which many such appellants may have. However, even in litigation as sensitive as a s25 appeal, with all its unusually harsh features so far as an appellant is concerned, it seems to me that, while an appellant is entitled to expect the court to consider any complaint about disclosure particularly carefully, there is no alternative to the normal approach to disclosure.
535. Secondly, there is a complaint that, in one case, SIAC permitted the Secretary of State to change his case, in the sense of identifying the nature of the group and connection alleged against a particular appellant, rather late in the appeal. In my view, while proper regard must of course be had to the harsh consequences of an appeal failing, and the difficulties which an appellant has to face in light of the inquiry SIAC has to carry out on a s25 appeal, the question of whether or not to permit the Secretary of State to amend his case is classically a matter for SIAC's discretion. In the present instance, I have not heard any argument or seen any evidence to support the proposition that any relevant prejudice was suffered by the appellant as a result of the Secretary of State being permitted to amend his case. In my view, that factor alone is enough to dispose of the appeal on this point.
536. Finally, there is a complaint that, at least in the case of some of the appeals, the Secretary of State ceased gathering evidence well before the hearing. I accept that, particularly in the case of a person whose s21 certificate has not lapsed or been revoked, one would normally expect the Secretary of State to be seeking to compile evidence which bears on the question of whether or not there are “reasonable grounds” under s25 in relation to that person. First, by virtue of ss25 and 26, the question of reasonable grounds in relation to that person from time to time will have to be considered quite frequently by SIAC. Secondly, there must be almost a moral duty (and probably a legal duty as well) on the Secretary of State to take some steps to keep himself satisfied that there are grounds for continuing detention of that person pursuant to s21 of the 2001 Act.
537. Nonetheless, the fact that, in a particular case, the Secretary of State may not have any recent relevant evidence in relation to a particular person cannot mean, as a matter of law, that SIAC cannot be satisfied of the existence of present reasonable grounds sufficient to satisfy s25 of the 2001 Act. In each case, as I have already said, the question of whether that test is satisfied depends on SIAC's assessment of all the relevant facts available to it. I do not see how it can be said, save in the most extreme cases, that the fact that there was no relevant recent evidence can of itself mean that it is not open to SIAC to find that there are reasonable grounds sufficient to satisfy s25.
538. Accordingly, I would reject the three specific complaints upon which it is said that some or all of the appellants did not have a fair hearing in relation to their respective s25 appeals.
539. In these circumstances, at least for my part, I would reject all the points raised by the appellants, save that:
- i. I would hold that, in an appeal under s25 of the 2001 Act, it is not open to SIAC to receive in evidence, or to take into account, a statement sought to be adduced by the Secretary of State, if that statement was made under torture, and this applies whether the statement was made by the appellant or a third party, and irrespective of the identity of the torturers;
- ii. however, this exclusion of evidence does not extend to evidence found as a result of a statement made under torture;
- iii. while due regard must be had to the difficulties faced by both parties in relation to the question, it is for the Secretary of State to establish, albeit only on the balance of probabilities, that a statement made by a third party was not extracted by torture, rather than being on an appellant to establish that it was.
540. I am also of the view that SIAC had jurisdiction to entertain the appeals of Mr Ajouaou and F, although they had left the country.