9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) Pinochet Ugarte (No 3) [2002] 1 AC 147 at 198B-C, and per the ECtHR in Al-Adsani -v- United Kingdom (2002) 34 EHRR 11 at paragraph 30, quoting extensively from paragraphs 144-154 of the judgment of the International Criminal Tribunal for the former Yugoslavia in Prosecutor -vFurundzija (1999) 38 ILM 317. 437. However, I do not think that it follows from this that there is such a customary rule or peremptory norm relating to the acceptance by national courts of statements obtained by torture. Such a contention would have to be made out by reference to authorities, text-books and articles in appropriate journals. We have not been referred to any such material, although it is right to record that the appellants applied for permission to develop an argument to that effect. Because that application was made very late in the hearing of these appeals, it would have been unfair to the Secretary of State to have acceded to it, and consequently it is not a line of argument which is open to the appellants. 438. In all these circumstances, I consider that the appellants have failed to make out their case, whether based on purely domestic law considerations or on international treaty obligations (other than ECHR), that the common law would preclude the Secretary of State from relying in proceedings on statements obtained from third parties by torture to which the UK was in no way party. Does ECHR Article 6(1) preclude reliance on statements obtained by torture? 439. The second basis upon which the appellants put their case for contending that evidence obtained by torture cannot be relied on before or by SIAC is essentially through the medium of ECHR Article 6(1), which confers the right to a "fair trial". In this connection, in light of the status of SIAC, the nature of proceedings under s25 of the 2001 Act and the decision of this court in A -v- Secretary of State at paragraph 57, it is rightly common ground that such an appeal is within the scope of the Article. The question is whether the dismissal by SIAC of an appeal brought under s25 would infringe an appellant's right to a fair trial, if the dismissal turned on evidence consisting of an statement obtained by torture, albeit that the statement was made by a third party on whom the torture was committed by someone wholly independent of the UK government. 440. It appears clear from a number of decisions of the ECtHR that the question whether a trial was "fair" under ECHR Article 6(1) does not normally involve consideration of whether certain evidence should or should not have been admitted, which is a matter for the domestic courts. The question for the ECtHR is ultimately whether, viewed in the round, the trial could accurately be described as unfair. Thus in Barbera -v- Spain (1988) 11 EHRR 360, the ECtHR said this: "As a general rule, it is for the national courts, and in particular, the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce. The Court must, however, determine … whether the proceedings, considered as a whole, including the way in which prosecution and defence evidence was taken, were fair as required by Article 6(1)." 441. To the same effect are observations in Schenk -v- Switzerland (1988) 13 EHRR 242, Ferrantelli -vItaly (1996) 23 EHRR 288 at paragraph 48, and Khan -v- United Kingdom (2000) 31 EHRR 45 at paragraphs 34-35. Indeed, both in Schenk and Khan, the ECtHR held that evidence which had been adduced by the prosecution had been obtained in breach of ECHR Article 8, but nonetheless concluded that there had been no breach of the accused's rights under ECHR Article 6(1). 442. In this connection, Lord Bingham of Cornhill said in Brown -v- Scott [2003] 1 AC 681 at 704D-F: "The jurisdiction of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities. … The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual …." 443. Nonetheless, it does appear that the ECtHR is prepared to lay down some rules of fairly general application, and give a degree of general guidance as to the circumstances which could normally be http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 96/113