173. The difficulty I have with the “real risk” test espoused by certain
of your Lordships, apart from the fact that classically such a test
addresses future dangers (as, for example, the risk of torture or other
article 3 ill-treatment which the European Court of Human Rights in
Soering v United Kingdom (1989) 11 EHRR 439 understandably refused
to countenance) rather than past uncertainties, is that it would require
SIAC to ignore entirely (rather than merely discount to whatever extent
it thought appropriate) any statement not proved to have been made
voluntarily. That, at least, is how I understand the “real risk” test to
apply: if SIAC were left in any substantial (ie other than minimal) doubt
as to whether torture had been used, the statement would be shut out,
however reliable it appeared to be and notwithstanding that SIAC
concluded that it had probably been made voluntarily. That seems to me
a surprising and unsatisfactory test. If I have misunderstood the
proposed test and if all that it involves is SIAC shutting out a statement
whenever they simply cannot decide one way or the other on the balance
of probabilities whether it has been extracted by torture (a rare case one
would suppose given the expertise of the tribunal) then my difficulty
would be substantially lessened although I would still prefer the test
favoured by Lord Hope of Craighead and Lord Rodger of Earlsferry.
174. It is one thing to say, as in Soering, that someone cannot be
deported whilst there exists the possibility that he may be tortured—or,
indeed, as the dissentient minority said in Mamatkulov and Askarov v
Turkey (Application Nos 46827/99 and 46951/99, unreported, 4
February 2005), if they run a real risk of suffering a flagrant denial of
justice— quite another to say that the integrity of the court’s processes
and the good name of British justice requires that evidence be shut out
whenever it cannot be positively proved to have been given voluntarily.
175. For these reasons, and for the reasons given by Lord Bingham
and others of my noble and learned friends, I too would allow these
appeals and make the order proposed.
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