information extracted by torture should be excluded by rule of law
rather than merely afforded less weight) to suggest the contrary:
“[T]here is no sufficient material which persuades us that
we can conclude either that torture or other treatment
contrary to article 3 of the ECHR was used or even that it
may have been used…”
167. But theoretically it could happen and in that event, it is
suggested, the Secretary of State would be disadvantaged in two distinct
ways. Most obviously, perhaps, he would be unable to continue to
detain someone whose detention he judged necessary on grounds of
national security. To the straightforward response “so be it, the rule of
law so requires”, I would add this. There is a certain unreality in
discussing the discharge of detention orders as the legislation now
stands. The power to detain suspected international terrorists under
section 23 of the 2001 Act is now a matter of history. In December
2004 your Lordships in A v Secretary of State for the Home Department
[2005] 2 AC 68, declared section 23 to be incompatible with articles 5
and 14 of the European Convention on Human Rights and with effect
from 14 March 2005 the whole of Part 4 of the Act was repealed by
section 16 of the Prevention of Terrorism Act 2005 (save only with
regard to extant appeal proceedings, preserved by section 16(4) of the
2005 Act).
168. No doubt the effects of your Lordships’ judgment will spill over
into other court proceedings designed to provide a judicial check on the
exercise of other executive powers to place constraints of one sort or
another on terrorist suspects in the interests of national security—most
notably appeals to SIAC under section 2 of the Special Immigration
Appeals Commission Act 1997 against deportation orders, and statutory
applications to the Administrative Court challenging control orders
under the Prevention of Terrorism Act 2005. For the reasons already
given, however, it seems unlikely that the exclusionary rule concerning
coerced statements, even assuming that it applies equally in these related
contexts (which was not the subject of specific argument before us) will
affect many, if any, individual cases.
169. The other way in which it has been suggested that the Secretary
of State may be disadvantaged by your Lordships’ ruling is in the event
that he has to defend himself against a civil claim, for example for false
imprisonment. With regard to this possibility I find myself in strong
agreement with the view expressed by Lord Nicholls of Birkenhead in
-88-
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents