9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 415. Fourthly, in a case such as the present, where the statement is from a third party, there could be said to be greater unfairness to the appellant than if the statement was his. The person from whom the statement has been obtained would almost certainly not be available for cross-examination by the appellant, whereas the appellant can at least give evidence about his own confession. There are also particular difficulties faced by an appellant before SIAC, both because he may not be able to see much of the relevant evidence, and because the nature of the evidence which SIAC is entitled to take into account will, at least in many cases, be second-hand, conjectural and/or sketchy. 416. While these are very powerful arguments, I have come to the conclusion that, subject to what may well be a very important qualification in practice, they do not justify concluding that the common law would require evidence obtained by torture to be excluded, even in relation to a s25 appeal before SIAC. First, as has been authoritatively stated in the context of criminal proceedings, for instance in Sang, the well-established approach of the English courts was that evidence was admissible, irrespective of how it was obtained. Save where the state is implicated in the wrongful obtaining of evidence, the common law may be expected to take its normal pragmatic approach. Improper action by the executive may often lead to high principle prevailing over pragmatism (as in Bennett and Looseley); so too, possibly, where the accused is unfairly caused to incriminate himself. Otherwise, it should be weight rather than admissibility which comes into play. 417. Secondly, there are observations at the highest level which suggest that the rule that involuntary confessions are to be excluded in criminal cases, can be regarded, at least in the absence of any statutory provision to that effect, to be somewhat anomalous, on the basis that the circumstances in which a confession is extracted logically go to the weight to be given to the confession, rather than its admissibility - see for example the observations of Lord Hailsham in DPP -v- Ping Lin at 600. If there are grounds for characterising the exclusionary rule relating to involuntary confessions in criminal cases as anomalous so far as the common law is concerned, that makes it difficult to justify extending the rule to exclude from evidence in non-criminal cases a statement extracted from a third party, and where the executive is not involved in the unlawful obtaining of the evidence. 418. Thirdly, although it can be said that the executive, by using evidence obtained under torture, has somehow adopted the means of obtaining that evidence, it appears to me that that argument is weakened by the decision in Shannon, where it could have been said that, by prosecuting, the Crown had effectively adopted the actions - or at least the results of the actions - of the agent provocateur. 419. Fourthly, in relation to an appeal under the 2001 Act, the Secretary of State may, at least in some cases, have had very little option but to rely on upon evidence obtained by torture, if it is supplied to him through his officials, who will have obtained it, either directly or indirectly, officially or unofficially, from officials from other governments. In the absence of a good reason, one would expect the same type of evidence to be available to SIAC as is available to the Secretary of State. 420. Fifthly, while it is not a particularly attractive point, s25 appeals are civil proceedings, and not criminal proceedings. It is clear from the passage in Phipson (op cit) that, whatever changes or advances there may have been since the decisions in Sang and Ping Lin so far as the attitude of the courts in criminal cases is concerned, relevant and otherwise admissible evidence in civil proceedings is only excluded in very rare circumstances, and recent cases, such as Blackledge do not provide any assistance to the appellants' case in this regard. 421. Sixthly, there are the provisions of rule 44(3) itself. The purpose, at least as expressed in general terms, of that rule was, in my view, to ensure that any rule relating to admissibility which would normally have precluded the receipt of evidence in an English court should not apply to a s25 appeal before SIAC. However, that does not mean that rule 44(3) will over-ride every objection to admissibility. That would involve giving the rule far too wide an effect. After all, the rule is only expressed in general permissive terms. 422. Thus, I consider that any statutory exclusionary rule which would otherwise apply, would not be disapplied by Rule 44. Further, any fundamental rule, which might be described as more than a "mere" common law rule, but one of constitutional importance, would not be disapplied. To raise what is a very unlikely possibility, evidence obtained from an appellant, or indeed, anyone else, through the http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 93/113