9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) The extent of the exclusion of evidence obtained by torture 503. At least in the case of a statement extorted by torture, it appears to me that there are three levels of evidence. The first is a simple confession or accusation. The second is a confession or accusation which contains confirmation, or what ultimately transpires to be objective confirmation, of its accuracy. The third is a confession or accusation which leads to evidence which confirms the confession in such a way that the confession is no longer needed. The difference between the three categories can be demonstrated by an example involving a person suspected of having brought a dangerous chemical into the country. The first level is where the suspect admits, under torture, having brought the chemical into the country. The second is where, under torture, he admits having brought the chemical into the country, and says where he has concealed it, as a result of which the authorities find the chemical. The third level is similar to the second, save that the authorities also find the suspect's fingerprints on the packaging of the chemical. 504. In light of my conclusion, and the reasons for it, there are obviously very strong arguments for contending that all three categories of evidence should be excluded, even where the statement is made by a person other than the accused. The first is a simple confession or accusation under torture, and should plainly be excluded; indeed, as I have already mentioned, the exclusion can be justified on the simple grounds of unreliability. The second, is more difficult, because, in order for there to be good evidence against the suspect, it would be necessary not merely to disclose the finding of the chemical, but also the fact that he had told the authorities where to find the chemical, and that would involve putting before the tribunal what he had said under torture. In my view, this second category of evidence (which is, as I have already suggested, unlikely to arise where one is considering a third party statement, rather than a statement given by the suspect himself) must also be excluded, albeit only insofar as it relates to the statement. The essential point is that it does not merely involve putting evidence before the tribunal which was attributable to the fact that the suspect was tortured, but actually giving direct evidence of what he said under torture. 505. Real difficulty is presented by the third category, because there is no need to rely upon the evidence actually given under torture: all the prosecuting authorities need rely on is the finding of the chemical together with the suspect's fingerprints on its packaging. There is obviously a powerful argument for saying that none of that evidence should be permitted to be adduced, on the basis that it was only obtained as a result of torture. If the fundamental reason for excluding evidence obtained by torture is due to the revulsion on the part of the international community and the signatories to the ECHR against torture, and that revulsion extends to evidence obtained by torture, as enshrined in Article 15 of CAT, there is obviously powerful logic in the contention that the exclusion of evidence obtained by torture should apply to all evidence obtained by torture and not merely to evidence given under torture. 506. Despite this argument, I have come to the conclusion that what I have called the third category of evidence, namely evidence obtained as result of torture, but not involving putting before the court evidence of what was actually said under torture, is admissible. First, there is the wording of Article 15 of CAT itself. As a matter of ordinary language, it appears to me to exclude statements given under torture, not evidence obtained as a result of torture. Secondly, while it may appear formalistic, even hypocritical, it appears to me that one is here concerned with evidence given to the court, and what the court can legitimately object to should be statements given under torture. In other words, what the court should set its face against is evidence in respect of which the person against whom it is given is able to say that it was given under torture, whether it was given by him or some other person. That would not apply to the third category of evidence. Thirdly, for what it is worth, this conclusion is consistent with what I understand to be the common law position in this country, and, indeed, the current statutory position, as embodied in ss76 and 78 of the Police and Criminal Evidence Act 1984 ("the 1984 Act"). Evidence obtained by torture: burden and standard of proof 507. If a statement obtained by torture is not properly admissible before SIAC, the next issue is whether it is for an appellant to prove that statement was obtained by torture, or for the Secretary of State to prove that it was not obtained by torture. Having decided on whom the burden lies, the question is whether the burden has to be discharged by establishing that torture was (or was not) used, on the balance of http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 107/113