had considered the point when passing the Special Immigration Appeals
Commission Act 1997 or the 2001 Act, there might be a case for holding
that the necessary implication of sections 21, 25 and 26 of the 2001 Act
was that SIAC should take account of statements obtained by torture in
another country. But that particular issue does not arise since
Parliament was never asked to consider the question, either when
passing these Acts or when approving the 2003 Rules, including the
permissive rule 44(3). The point does not appear to have occurred to
anyone. In any event, the revulsion against torture is so deeply
ingrained in our law that, in my view, a court could receive statements
obtained by its use only where this was authorised by express words, or
perhaps the plainest possible implication, in a statute. Here, there are no
express words and the provisions actually approved by Parliament do
not go so far as to show that the officious bystander who asked whether
SIAC could rely on a statement obtained by torture would have been
testily suppressed with an “Oh, of course!” from the legislature. I
therefore hold that SIAC should not take account of statements obtained
by torture.
138. The courts’ deep-seated objection is to torture and to statements
obtained by torture. The rejection of such statements is an exception to
the general rule that relevant evidence is admissible even if it has been
obtained unlawfully. On the other hand, the public interest does not
favour SIAC rejecting statements that have not in fact been obtained by
torture. More particularly, the public interest does not favour rejecting
statements merely because there is a suspicion or risk that they may
have been obtained in that way. Reports from various international
bodies may well furnish grounds for suspicion that a country has been in
the habit of using torture. That cannot be enough. To trigger the
exclusion, it must be shown that the statement in question has been
obtained by torture.
139. I draw support for that general approach from the judgment of the
Grand Chamber of the European Court of Human Rights in Mamatkulov
and Askarov v Turkey, 4 February 2005. The court had to consider
allegations that Turkey had violated article 3 of the Convention by
extraditing the applicants to Uzbekistan where political dissidents, such
as the applicants, were tortured in prison. In support of their allegations,
the applicants “referred to reports by ‘international investigative bodies’
in the human rights field denouncing both an administrative practice of
torture and other forms of ill-treatment of political dissidents, and the
Uzbek régime’s repressive policy towards dissidents.” The Grand
Chamber held that, by itself, such generalised information was not
sufficient even to establish that there was a real risk that the applicants
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