9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) a State Party to the ECHR does not violate Article 6 by adopting a rule to the effect that issues about the means by which evidence was obtained should go to weight, not admissibility. I have seen nothing in the Strasbourg jurisprudence to suggest the contrary. At the least I would hold that this is so in the context of s.25 appeals, and that is what we are required to confront. And in that context, Ramda provides no pull in the opposite direction. 264. Mr Emmerson referred also to the well-known case of Saunders. But that was a case about selfincrimination in the context of the company law legislation. I do not think it is of any assistance at all on the questions before us. He also referred to Texeira de Castro, to which, as I have shown, their Lordships' House drew specific attention at paragraph 31 of Looseley. Texeira, however, sits with our abuse of process cases. The case concerned (paragraph 36) "the use of evidence obtained as a result of police incitement". It seems to me that Texeira shows in the context of abuse, just as Austria v Italy, Barbera and Ferrantelli show in the context of confessions, how near the Strasbourg jurisprudence is to the common law. 265. In my judgment the Strasbourg cases sit easily with the common law: a man will not be confronted with a confession wrung out of him, and proceedings based on State misconduct will not be entertained. But that is the reach of it; anything else is a matter of the weight to be given to the evidence adduced. I would accordingly reject Mr Emmerson's argument on Article 6 as I would reject, for reasons I have given, his submissions as to the common law. But these conclusions are subject to a further dimension in the case. Does the impact of CAT make all the difference, whether to the common law or to the ECHR? The Impact of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") 266. Three propositions may be stated at the outset. (1) An unincorporated treaty confers no rights directly enforceable in our courts. But (2) there is a strong presumption that our law, judge-made or statutory, should be interpreted so as not to place the United Kingdom in breach of an international obligation. These two propositions are elementary. If authority were needed for them, it is amply to be found in R v Lyons. (3) Obligations arising under international law, including the terms of treaties other than ECHR itself, may inform and colour the interpretation of the ECHR provisions including Article 6. This proposition is vouchsafed not least by the Strasbourg court's decision in Al-Adsani v UK. The case concerned the law of State immunity: far distant from these appeals. At paragraph 55 the court said: "… The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention's special character as a human rights treaty, and it must also take the relevant rules of international law into account. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity." The judgment in Al-Adsani contains much else, not least a ringing endorsement of the view expressed by the International Criminal Tribunal for the Former Yugoslavia in Furundzija that the prohibition of torture has achieved the status of a peremptory norm, or jus cogens, in international law. So much was recognised, as the court notes, by the House of Lords in Pinochet (No 3). 267. The Secretary of State would not I think contest propositions (2) and (3), nor the further proposition that the prohibition of torture has achieved the status of a peremptory norm, or jus cogens, in international law. In any event they are plainly incontestable. Nor, on the face of it, would Mr Emmerson contest proposition (1), though his argument does so in practice. In my judgment the mistake in Mr Emmerson's position, in relation to the common law, is in truth (though he would disavow it) to deploy proposition (2) so as to contradict proposition (1). He seeks in effect to subject the common law to a particular rule requiring compliance with CAT Article 15 on the back of the general rule (proposition (2)) that our law should be read consistently with our international obligations. The argument proves too much. It would justify the incorporation into domestic law, without a validating statute, of any rule of international law in relation to any subject-matter clearly common to both. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 68/113