were not the subject of submissions. It would not be right therefore to
express any view on these issues.
79.
For these reasons, and those stated by my noble and learned
friends, I would allow these appeals.
80.
In doing so I associate myself with the observations of Lord
Bingham of Cornhill on the burden of proof where the admissibility of
evidence is challenged before SIAC on the ground it may have been
procured by torture. The contrary approach would place on the detainee
a burden of proof which, for reasons beyond his control, he can seldom
discharge.
In practice that would largely nullify the principle,
vigorously supported on all sides, that courts will not admit evidence
procured by torture. That would be to pay lip-service to the principle.
That is not good enough.
LORD HOFFMANN
My Lords,
81.
On 23 August 1628 George Villiers, Duke of Buckingham and
Lord High Admiral of England, was stabbed to death by John Felton, a
naval officer, in a house in Portsmouth. The 35-year-old Duke had been
the favourite of King James I and was the intimate friend of the new
King Charles I, who asked the judges whether Felton could be put to the
rack to discover his accomplices. All the judges met in Serjeants’ Inn.
Many years later Blackstone recorded their historic decision:
“The judges, being consulted, declared unanimously, to
their own honour and the honour of the English law, that
no such proceeding was allowable by the laws of
England”.
82.
That word honour, the deep note which Blackstone strikes twice
in one sentence, is what underlies the legal technicalities of this appeal.
The use of torture is dishonourable. It corrupts and degrades the state
which uses it and the legal system which accepts it. When judicial
torture was routine all over Europe, its rejection by the common law was
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