9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) fundamentally unfair trial that the principle of mutual respect stressed in McQuire and other decisions may have to yield. In a case such as the present this requires the Home Secretary to be satisfied of at least two things: that Bensaid's incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine, any argument in the claimant's defence based upon this contention. If the Home Secretary concludes that these elements are established, he will be effectively bound to refuse extradition." 102. At paragraph 24, the court stated: "As to the adequacy of the total inquiry, there remain at least two questions to which, on the face of the materials eventually before him, the Home Secretary has yet to give a properly reasoned response. One is whether there was any investigation at all of the original complaint of ill-treatment of Bensaid; the other is whether the French courts, given the record now available of their later decisions in relation to Bensaid, will now entertain any request by the claimant to exclude Bensaid's confessions." In the absence of further material, the court quashed the Secretary of State's order for Ramda's return to France. 103. This case demonstrates, submits Mr Emmerson, the extent of the court's abhorrence of a conviction based on evidence obtained by torture. Moreover, the case involves a confession, not by the proposed defendant, but by a prospective prosecution witness. Route three 104. The third possible route on which Mr Emmerson relies has been stated succinctly. Article 15 of UNCAT prohibits the admission before the Commission of testimony obtained by the torture of a third party inflicted by the agents of a foreign state. If, contrary to submissions on routes 1 and 2, Part 4 of the 2001 Act is to be construed as permitting the admission of evidence obtained by torture of a third party inflicted by the agents of a foreign state, that is incompatible with the international obligation under Article 15 of UNCAT. For that reason it is incompatible with the requirement that a derogation from Convention obligations is permissible only provided it is not inconsistent with the United Kingdom's other obligations under international law. The 2001 Act and the 2003 Rules are therefore to be interpreted in a manner consistent with the derogation, which requires compatibility with Article 15 of UNCAT, and excluding admission of evidence obtained by torture of a third party by agents of a foreign state. 105. In the alternative, and this is a return to routes 1 and 2, the limited scope of the derogation is an additional reason to construe the common law and Article 6 of the Convention in the light of Article 15 of UNCAT and thereby to achieve the level of protection sought. It was the alternative argument which was pressed orally by Mr Emmerson, conscious no doubt that the court is not concerned with the lawfulness of the derogation and that no point has been taken in the derogation proceedings upon the admissibility of statements made as a result of torture inflicted by the agents of a foreign state. Further material 106. Reference was made to other material to demonstrate the abhorrence with which the law regards torture. In the Institutes of the Laws of England, Part 3, 34-35, (referred to by Lord Hope of Craighead in his University of Essex lecture (2004)), Sir Edward Coke stated: "So as hereby it appeareth, that where the law requireth that a prisoner should be kept in salva & arcta custodia yet that that must be without pain or torment to the prisoner… … Sir John Fortescue chiefe justice of England wrote his book in commendation of the lawes of England, and therein preferreth the same for the government of this countrey before the civill law; and particularly that all tortures and torments of parties accused were http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 23/113