9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 137. The statute does not, however, deprive the Commission of an abuse of process jurisdiction. Indeed, the existence of such a jurisdiction is inherent in the judicial function. It is a fundamental principle of the rule of law, as stated by Lord Nicholls in Looseley, and it is difficult to envisage an Act of Parliament which could exclude it. There remains a residual jurisdiction even in this context. An example of abuse, accepted as such by the Secretary of State, would be where the only information relied on by the Secretary of State in forming his suspicion and belief was a statement obtained from the suspect by United Kingdom authorities by torture. I would not confine it to that situation or attempt to define it at this stage. The international co-operation necessary to combat terrorism, rightly stressed on behalf of the Secretary of State, could lead to a situation in which the United Kingdom Government was so involved with ill-treatment in obtaining information that it became an abuse of state power to attempt to rely on the information and the Commission could not tolerate its admission. The statute does not, however, permit too circumscribed a view of available material when assessing the reasonableness of the suspicion and belief formed. Moreover, provided the Secretary of State is acting in good faith, a recognition of his responsibility for national security is required when assessing his approach to the material available to him. 138. Nothing has been brought to the attention of the Court which would amount to such misuse of state power as would have required the Commission to discharge the certificates or have prevented the Secretary of State from relying on the material when discharging his duty under Section 21. While making the reservation I have, I am not prepared to hold that the Commission adopted the wrong approach to the material before them. I am not able to hold that the claimed exclusionary rule exists in the context of the 2001 Act. 139. The parties have sensibly restricted the hearing before this court to a consideration of the general legal points raised. If it is sought, in the light of the judgments in this court, to establish in a particular case, in the statutory context, misuse of state power such that the Commission should intervene, that can be done upon the forthcoming review by the Commission which the statute requires. Jurisdiction 140. Two of the Appellants, Ajouaou and F, have left the jurisdiction. Each has lodged an appeal against certification. In each case, the Secretary of State has exercised his power under Section 21(7) to revoke the certificate since the appeal was launched and has done so with retrospective effect. 141. The Commission concluded, at paragraph 34, that the revocation of the certificates deprived it of jurisdiction. The Commission stated: "The appeal is against certification, which connotes a continuing state of affairs. The powers available on appeal are only to cancel a certificate; that power only makes sense in the context of a certificate which remains in force. The statutory language is reinforced by the first ground upon which an appeal can be allowed, which goes to present merits. The appeal would at best be arguable on the rather limited paragraph (b) ground." 142. The conclusion was elaborated upon in the individual determination in the case of F. The Commission stated, at paragraph 11: "Section 25(4) provides that where a certificate is cancelled it shall be treated as never having been issued. Section 25(2)(a) clearly looks to the situation at the time of the appeal. It does not say, as it could have done, that there are or were at the time it was issued no reasonable grounds, etc. It therefore clearly in our view presupposes that the certification is still in being at the time of the hearing. … But Parliament could have made it clear that an appeal could be made against the issue of the certificate rather than, as section 25(1) provides, against the certification." 143. The parties are at one in submitting that the finding was in error. The right of access to a tribunal or court is of fundamental importance (R v Secretary of State ex parte Saleem [2001] 1 WLR 443). The certified person should be permitted to challenge certification as a suspected international terrorist and the legality of past detention consequent upon certification. Certification is likely to have a seriously http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 29/113