may properly take into account when considering, for example, whether to make an arrest. 69. In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this. 70. The next step is to consider whether the position is the same regarding the use of this information in legal proceedings and, if not, why not. In my view the position is not the same. The executive and the judiciary have different functions and different responsibilities. It is one thing for tainted information to be used by the executive when making operational decisions or by the police when exercising their investigatory powers, including powers of arrest. These steps do not impinge upon the liberty of individuals or, when they do, they are of an essentially short-term interim character. Often there is an urgent need for action. It is an altogether different matter for the judicial arm of the state to admit such information as evidence when adjudicating definitively upon the guilt or innocence of a person charged with a criminal offence. In the latter case repugnance to torture demands that proof of facts should be found in more acceptable sources than information extracted by torture. 71. Difficulties arise at the interface between the different approaches permitted to the executive on the one hand and demanded of the courts on the other hand. Problems occur where the lawfulness of executive decisions is challenged in court and there is an apparent ‘mismatch’, as the Secretary of State described it, between the material lawfully available to the executive and the evidence a court will admit in its proceedings. Suppose a case where the police take into account information obtained by torture abroad when arresting a person, and that person subsequently challenges the lawfulness of his arrest. Can the police give evidence of this information in court when seeking to justify the arrest? 72. In my view they can. It would be remarkable if the police could not. That would create a bizarre situation. It would mean the police may rely on this evidence when making an arrest, but not if the lawfulness of the arrest is challenged. That would be a curious -49-