9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) probabilities, or beyond reasonable doubt. The Secretary of State's contention is that it is for the appellant to prove that a statement was obtained by torture and he further contends that the normal, civil, standard of proof, would apply, namely the balance of probabilities. The contention on behalf of the appellants is that it is for the Secretary of State to show that any statement he relies on was not obtained by torture, and that he has to establish this beyond all reasonable doubt. 508. It is clear from s76(2) of the 1984 Act that, in the case of confessions by an accused in criminal proceedings, it is for the prosecuting authorities to establish beyond reasonable doubt that the confession was given voluntarily. On the other hand, in civil proceedings, one would, at any rate at first sight, expect the normal principles to apply, namely that the person who makes the allegation must prove it on the usual balance of probabilities, and consequently that the burden of proof would be on the appellant to establish that a statement was obtained by torture. However, bearing in mind the unusual nature of these proceedings, and the fact that evidence obtained by torture is to be excluded as a result of the fair trial requirement of ECHR Article 6(1), I do not consider that these domestic law principles are of much assistance. 509. I turn to relevant decisions of international courts. In PE -v- France, it seems clear that the Torture Committee concluded that it was for the person alleging that evidence had been obtained under torture to prove his case. In paragraph 6.6 of its decision, the Torture Committee stated that "it is for the author to demonstrate that he allegations are well-founded" and that, in light of this case the Torture Committee "cannot conclude that it has been established that the statements at issue were obtained as a result of torture". 510. However, in The Prosecutor -v- Delalic (unreported) the International Criminal Tribunal of the former Yugoslavia had to consider the application of rule 95 of its Rules which provides: "No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to or would serious damage the integrity of the proceedings." In paragraph 41 of its decision, the Tribunal said it had "no doubt" that statements obtained involuntarily from a suspect, could not be admitted. In paragraph 42 the Tribunal said this: "The burden of proof of voluntariness or absence of oppressive conduct in obtaining a statement is on the Prosecution. Since these are essential elements of proof fundamental to the admissibility of a statement, the Trial Chamber is of the opinion that the nature of the issue demands for admissibility the most exacting standard consistent with the allegation. Thus, the Prosecution claiming voluntariness on the part of the Accused/Suspect … is required to prove it convincingly and beyond reasonable doubt." 511. Given these inconsistent views expressed in international tribunals, and that, in any case, they were concerned with criminal cases, whereas the present proceedings are not strictly criminal, I consider that one must go back to first principles. 512. The Secretary of State contends the normal rule that he who asserts must prove, and the way in which Article 15 of CAT is worded, both point in favour of the appellant having to establish that the evidence in question was obtained by torture. For the appellants, it is contended that it is unrealistic and unfair, because the source of the evidence will often be unclear, and, in many cases, it may well be that the evidence cannot even be shown to an appellant, but only to his Special Advocate (and even they will have little idea as to the circumstances in which the evidence was obtained). 513. On the basis that this problem is to be solved purely by reference to domestic law, while I accept that the Secretary of State's case to the contrary is powerful, I am of the view that the burden should be on him. First, it is the Secretary of State who will be adducing, and seeking to rely on, the statement said to have been obtained by torture. He is more likely to know of the circumstances in which the statement was obtained than is the appellant. Secondly, domestic criminal law places the burden of establishing that a confession was voluntary firmly on the prosecution - see s76 of the 1984 Act. Thirdly, an appellant on an appeal under s25 of the 2001 is, as Lord Woolf acknowledged in M -vSecretary of State at paragraph 13, at a particular disadvantage which, if it cannot be avoided, should http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 108/113