9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) third party made under torture to officials of other countries, in support of the case for saying that there are "reasonable grounds" under s25. 463. I accept, of course that there is a difference in principle, and in the degree of offensiveness, between relying on an accused's own confession obtained under torture by UK authorities, and relying on a third party's statement against an accused, obtained under torture by another state. Indeed, if there were no such difference, then I would, as a matter of logic, have reached a different conclusion on the appellants' case insofar as it is based on the common law. Nonetheless, the prejudice to an appellant, if one allows in a statement extracted from a third party under torture is obvious. Reliability is just as much a point as in relation to a confession obtained from the appellant himself. 464. Indeed, as already mentioned, it appears to me that, in some respects, it would be even more unfair on an appellant to rely upon a statement extracted from a third party under torture, than to rely upon a confession extracted from the appellant himself under torture. The appellant at least will know of all the circumstances in which the confession was extracted, and will be able to give evidence in court to explain those circumstances, and possibly to give other evidence to rebut the reliability of the confession. However, it will be a very rare case where the appellant would know very much about the circumstances in which the statement was extracted from a third party, or where the appellant would be able to arrange for evidence to be given about those circumstances. Almost by definition, he will not be able to call or cross-examine the third party with a view to the third party explaining or rebutting the statement. Indeed, if the third party were available, the statement extracted under torture would normally not be admitted, as he would be able to give evidence directly to the court. 465. Accordingly, particularly as the s25 appeal can result in an appellant being detained in prison for an extended period, it appears to me that, if the Secretary of State can rely on a statement obtained by torture from a third party, especially if that third party cannot be cross-examined, I would not find it easy to characterise the appeal process as "fair", from the appellant's point of view. In this connection, it seems to me that, if a statement obtained by torture can be relied on, there is the rather sobering thought that one must proceed on the basis that the statement would be crucial. If the appeal would have failed without the admission of the statement, the statement would not have been needed. It is only if it is crucial that its admissibility would matter. 466. In relation to s25 appeals, I accept that there are arguments the other way, bearing in mind the existence of the terrorist threat identified in the Derogation Order, and the possible difficulty in obtaining evidence to satisfy even the relatively low threshold requirements of s25(2) of the 2001 Act. 467. Nonetheless, I have come to the conclusion that, bearing in mind that ECHR Article 6(1) must be treated as informed by other international treaties, the general international determination to eliminate torture in all circumstances, and the terms of Article 15 of CAT, coupled with the specific unfairness to an appellant against whom a statement obtained under torture is to be used, as the person who gave the statement will not be available for cross-examination, and as the statement will be relied on to justify detaining the appellant potentially indefinitely, I do not think that any party mounting a s25 appeal before SIAC can be said to have had fair trial within ECHR Article 6(1), if evidence obtained by torture is used against him. 468. There is one English authority which provides significant, if indirect, support for this conclusion. It is a decision of the Divisional Court, in R (Ramda) -v- Secretary of State for the Home Department (unreported, 27th June 2002), granting judicial review of an order extraditing the claimant to France. The French authorities wished to prosecute the claimant in connection with a series of terrorist bombings, and intended to rely on the evidence and confession of one Bensaid, which was given under torture. In paragraph 9, the Divisional Court said this: "Among the issues for the Home Secretary to determine may be whether the trial to be faced by the wanted person will be a fair trial. This may involve the voluntariness of extra-judicial confessions relied on as evidence against him." 469. In paragraph 16 of his judgment, Sedley LJ went on to consider the evidence said to support the contention that Bensaid's confession and evidence had been obtained with the assistance of violence. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 100/113