9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) torture, or to enjoy the fruits of torture, then it is for the democratically elected legislature, after a full and informed public debate, to spell out that intention unequivocally in appropriate legislation. 498. Thirdly, if I am wrong in my conclusion that evidence obtained by torture is inadmissible, at least in a case such as this, then there are two possibilities. Either evidence obtained by torture is always admissible, or its admissibility is a matter for the court. I find the first of those two alternatives very unattractive: the notion that a court would be obliged to admit a statement obtained under torture, however disgusting the torture may have been, and however unacceptable its use may have been, even to those who might accept that torture might be justified in certain exceptional circumstances, seems to me wrong. I would therefore reject such a contention. 499. That leaves one with the proposition that it would be a matter for the court, in each case, to decide whether to admit evidence obtained by torture, on the basis that the fact that it was obtained by torture would be a reason, but not a requirement, for refusing to admit it. If that was the law, it would place a court in a very difficult position. The personal attitude of the judge would almost inevitably play a substantial part in the decision of whether to admit such evidence. That is a recipe for inconsistency, which in turn impinges negatively on the reputation of the justice system. Further, it would be difficult to know how to balance the fact that a statement has been given under torture against the sort of reasons which might be advanced for allowing the statement in. One would be balancing competing factors which have nothing to do with each other: that is also a recipe for inconsistent decisions. 500. The fact that the Secretary of State may (and, in my view, would) be entitled to take into account a statement obtained by torture has some force, as I have mentioned when considering the common law position. However, it does not, at least in my judgment, cause any difficulty of principle. It is by no means inconceivable for the executive to make decisions based on certain evidence and for certain reasons, but when the court comes to consider the lawfulness of the decision, some of those facts and reasons cannot be put before the court. An obvious example is where a decision is based partly or wholly on facts contained in documents which are subject to public interest immunity. As Bingham LJ said in Makanjuola -v- Commissioner of Police for the Metropolis [1992] 2 All ER 617 at 623 (in a passage approved by the House of Lords in R -v- Chief Constable of West Midlands Police ex p Wiley [1995] 1 AC 274 at 296C and 308B): "Where a litigant asserts the documents are immune from production or disclosure on public interest grounds he is not (f the claim is well founded) claiming a right, but observing a duty. Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation." Accordingly, the fact that my conclusion would result in there being occasions where the Secretary of State would not be able to put all the evidence, which he took into account when deciding to issue a s21 certificate, before SIAC when it considers a s25 appeal against the issue of a certificate, does not represent a new or unusual state of affairs. 501. Furthermore, as was pointed out by Lord Woolf in paragraphs 9, 15 and 34(vi) of his judgment in M v- Secretary of State, when entertaining an appeal under s25 SIAC is not reviewing the exercise of the Secretary of State's power to issue a certificate under s21. It is carrying out its own assessment, namely whether there are, at the date of the hearing of the s25 appeal, "reasonable grounds", based on the evidence before it. The Secretary of State may himself accept that evidence, which appeared to him to have weight - possibly substantial weight - when he issued a certificate can be shown to be wholly valueless by the time a s25 appeal is heard. Accordingly, it should not cause much surprise that there could be circumstances where the Secretary of State may not be able to put before SIAC on a s25 appeal, evidence which he took into account under s21. Evidence obtained by torture: two further issues 502. Having decided that a statement obtained by torture cannot be relied on in a s25 appeal, two questions remain. The first is the extent of that principle. The second is to identify who has the burden of proof, and what is the standard of proof. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 106/113