9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) be "minimised". In particular, it appears quite unfair that the burden should be on an appellant when he will not know the nature of the evidence invoked against him before SIAC. 514. It also appears to me that the standard of proof should be the civil, and not the criminal standard. First, as a s25 appeal is civil, the civil standard appears more appropriate. Secondly, even allowing for the difficulties of the appellant, it would be unduly onerous to require the Secretary of State to provide beyond reasonable doubt that a statement which he did not obtain, and was not party to obtaining, was or was not obtained by torture. 515. The exclusion of a statement obtained by torture is justified by ECHR Article 6(1), which itself requires a fair trial. The fairness of the trial is not merely to be judged by reference to what evidence is to be excluded, but also upon the principles which govern the means of establishing whether the evidence is of a nature which should be excluded. In the present case, I think it is important to bear in mind that the sort of evidence with which the present point is concerned would, presumably, be a statement allegedly made to a member of the police force, armed services, or secret services, of another country, which is then passed on, officially or unofficially, to a representative or agent of the UK government. The degree to which the Secretary of State will be able to identify the provenance, let alone many details of the provenance, of the information, will often be slight. The ability of the Secretary of State to make investigations will also be slight in many cases. Having said that, the position of an appellant, with no official position, and (save in the most exceptional circumstances) far fewer (if any) sources of information, and far less (if any) money available to him, will be even worse. 516. In these circumstances, subject to what I say below, it seems to me that the requirement of a fair trial would place on the Secretary of State the burden of proof of establishing that the evidence on which he seeks to rely was not obtained by torture, but that the burden of proof is the civil one, namely the balance of probabilities. It can be said with some force that it is unfair to place the burden of proof on the Secretary of State, but the answer to that, in my view, is that it would be even more unfair to place the burden of proof on an appellant. Given my conclusion that a statement obtained under torture cannot be used in evidence, and given the almost insurmountable difficulty an appellant would have in establishing anything about the circumstances in which much of the Secretary of State's evidence was acquired, placing the burden of proof on an appellant would be tantamount to taking away with one hand what has been given with the other. As to the contention that the standard of proof should be the criminal standard, it seems to me that the way in which the evidence will have reached the Secretary of State is such that it would be normally be unrealistic to place any such standard of proof in relation to the circumstances in which the evidence was obtained. 517. This conclusion must, however, be a qualified or provisional one. Once one bears in mind the exceptional nature of the proceedings before SIAC, and the inevitable uncertainties regarding the circumstances in which the evidence was obtained, I think it would be very dangerous to proceed on too analytical or absolute a basis on the question of who must establish whether a statement was obtained under torture or not. Earlier in this judgment I discussed the basis upon which SIAC should reach a conclusion as to whether or not there are reasonable grounds within s25(2)(a). The exercise is not one which, to a substantial extent requires, or even permits, the assessment of evidence in a manner which any criminal court, or indeed any civil court, would normally set about its task. Nonetheless it is appropriate that it is a court which carries out this function, because courts are used to assessing evidence, risks and the reasonableness of grounds or beliefs. In other words, when it comes to assessing, on the basis of the evidence, whether there are "reasonable grounds", SIAC will be carrying out a familiar task, but will be doing so on evidence which would not normally be admissible in any court, and which will not be assessed by reference to normal burdens or standards of proof. 518. To a significant extent, I consider that similar principles should apply when SIAC has to consider a dispute as to whether a statement upon which the Secretary of State wishes to rely was obtained by torture. In considering that issue, SIAC will, no doubt, frequently be called on to rely upon evidence which would not be admissible in a criminal court, or even normally in a civil court, consisting of, for instance, newspaper reports, Secret Service reports and the like. When considering whether a statement was obtained by torture or not, SIAC will, ultimately, have to come to the sort of decision with which criminal, and indeed civil, courts are familiar, namely, whether, on the balance of probabilities, certain primary evidence (albeit that it is not being provided in its primary form) was or http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 109/113