torture evidence in proceedings in the Special Immigration Appeals Commission (SIAC), a special tribunal for appeals against Home Office deportation orders on national security grounds. The government denied the allegations, but asserted its right to use such evidence as a matter of law. The Lords ruled unanimously that no British court or tribunal can ever consider torture evidence even in terrorism cases, overturning a 2004 Court of Appeals decision that such evidence could be used provided that the UK had “neither procured nor connived at” the torture. Unfortunately, the ruling established a problematic approach to the burden of proof in cases where evidence is alleged to have been obtained under torture. The majority (four out of the seven Lords deciding the case) took the view that SIAC was obliged to exclude evidence when it is established “by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities” that it was in fact obtained under torture. This test in effect places the burden of proof on the appellant to put forward evidence that would satisfy the court that is more likely than not that it was obtained under torture. It sets what may be an impossible standard to meet given the difficulties in ascertaining the precise circumstances in which intelligence information was obtained. It is compounded by the fact that “sensitive” evidence is likely to be heard in closed session from which the deportee and his lawyer of choice are excluded. As Lord Bingham, writing a dissenting opinion, noted, “it is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet.”81 He and two other Lords proposed that evidence should be excluded where SIAC determined there was a “real risk” that it had been obtained under torture.82 Such an approach correlates with the test adopted by the European Court of Human Rights when considering whether an expulsion or deportation would violate the nonrefoulement obligation. The European Court assesses whether “substantial grounds are shown for believing that the person concerned, if expelled, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country.”83 81 Ibid, para. 59. 82 Ibid., paras. 54-62, 80 and 98. 83 European Court of Human Rights, N v. Finland, Application No. 38885/02, Judgment of 26 July 2005, para. 158. 31 Human Rights Watch | June 2010