9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) means of torture to which the UK government was in some way party, should be excluded despite rule 44(3): that would be a classic case of SIAC carrying out the protective duty described by Lord Nicholls in paragraphs 1 and 13 of Looseley. 423. Accordingly, albeit with real hesitation, I am of the view that, unless the effect of any principle of nondomestic law can be relied on, the appellants' contention, that a statement obtained by a third party under torture from someone unconnected with the UK government should be inadmissible in s25 proceedings as a matter of English common law, must, on the basis of the arguments before us, be rejected. However, this conclusion is subject to two important qualifications. 424. First, I am firmly of the view that, in the unlikely event of the torture having been carried out by or on behalf of, or even with the connivance of, the UK government, the court would have no hesitation in excluding any statement given under such torture, if it was sought to be relied on by the Secretary of State. To permit the executive to rely in court on evidence which its agents had extracted, or assisted in extracting, under torture would involve the court failing in the duty identified by Lord Mustill in his second factor in Smith, and so ringingly described by Lord Nicholls in paragraphs 1 and 13 of Looseley. 425. Secondly, there is what I have referred to as what is possibly a very important qualification in practice. As already mentioned, it appears to me that the common law, being based more on pragmatism than principle, at least where there is no question of executive wrong-doing, will approach statements obtained by torture by reference to weight rather than admissibility. While the point was not greatly discussed before us, it appears to me, as at present advised, that, in the absence of any internal corroboration, it would be inappropriate to give a statement made under torture any weight. By "internal corroboration" I have in mind something said by the person under torture which somehow serves to confirm that he is telling the truth in that part of the statement which implicates the appellant. Thus, if the person under torture identifies eight people (including an appellant) as terrorists, the fact that the other seven were known to be terrorists might, I suppose, provide some sort of internal corroboration. (Even in such a case, it may be said that it would be wrong to rely upon the statement, unless one knew that the seven names had not been given to the person under torture by his torturers). 426. External corroboration would not take matters any further, because it would consist of evidence, outside any statement obtained by torture, tending to suggest that the appellant was a terrorist, which would be evidence which would stand on its own anyway. However, a simple statement, which does no more than implicate the appellant, even with some details, if given by a third party under torture, appears to me to be, at least in the absence of special circumstances, very unlikely to be regarded by any right minded person as being of any probative value. 427. My view on this question of weight is not affected by rule 44(3). In R -v- Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456, it was clear that "Parliament did not intend that the proceedings should be governed by the strict rules of evidence" (per Willmer at 474F). However, Diplock LJ explained, at 488C-E: "The requirements that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and substitute its own view for his." 428. Accordingly, if an uncorroborated statement given under torture is not (at least normally) of any weight, rule 44(3) could not be invoked to change that on a s25 appeal. 429. I have wondered whether such an uncorroborated statement made under torture could be required to be excluded on the basis that its prejudicial effect must outweigh it probative value - an exception to the http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 94/113