application of a moral principle. That would be to treat a moral
principle as giving with one hand and taking away with the other. That
makes no sense. Either the police may rely on such information when
carrying out their duties, or they may not. If they can properly have
regard to such information despite its tainted source, and in the
particular case do so, they should not be precluded from referring to this
information in court when giving evidence seeking to justify their
decisions and actions. Repugnance to the use in court of information
procured by torture does not require the police to give an incomplete
account of the matters they took into account when making their
decisions. (Different considerations apply where, in the interests of
national security, there are statutory or other restrictions on the use of
certain matters in legal proceedings, such as the contents of intercepted
communications or information attracting public interest immunity. In
these cases the ‘mismatch’ arises from a perceived need to preserve
confidentiality, not from the application of a broad moral principle.)
73.
So far I have noted the distinction between executive decisions of
an essentially operational or short-term character and judicial decisions
on criminal charges. Tainted information may be taken into account in
the former case but not the latter. I have also noted that when reviewing
the lawfulness of such executive decisions a court may have regard to all
the matters the decision-maker properly took into account.
74.
But this categorisation by no means covers the whole ground.
Many cases do not conform to this simple division of functions.
Executive decisions, such as deportation, may have serious long-term
consequences for an individual. And judicial supervision of an executive
decision may take different forms. The Anti-terrorism, Crime and
Security Act 2001 is a recent instance. Certification of a person as a
‘suspected international terrorist’ is the responsibility of the Secretary of
State. The issue of this certificate authorises the minister to exercise
extensive powers, including power under section 23 to detain the
certified person indefinitely in certain circumstances. This power of
detention, in its adverse impact on an individual, goes far beyond the
adverse impact of executive acts such as search and arrest. Detention by
order of the executive under the 2001 Act is not a preliminary step
leading to a criminal charge.
75.
Despite this difference, in the case of this Act the rationale
underlying the distinction between the executive’s ability to take into
account information procured by torture and the court’s refusal to admit
such evidence holds good.
It holds good because the Special
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