9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) increase its capability for launching terrorist operations of whatever sort which threaten the United Kingdom." The "international terrorist group" contemplated by Section 21 is Al Qa'eda or a group associated with it, provided it is recognised that the very nature of the groups associated with Al Qa'eda encompasses informal, even ad hoc, groups which can as easily or better be described as overlapping, loosely coordinated groupings or networks. Their purpose may overlap in part but not in whole, and they may not agree with all the means which another would use; but that does not prevent them being part of the threat to the life of the nation as a matter of principle or law. 64. I find no error of law in the approach of the Commission to this issue. The Commission has considered in detail whether the certifications come within the scope of the derogation, following the approach indicated in A and Ors. They have considered and applied each of the relevant words in Section 21 including 'group' and 'links' and applied them correctly. They have acknowledged the requirements of Section 21(4) and acknowledged and kept in mind the need to avoid guilt by association. I agree with the Commission (paragraph 96) that when Brooke LJ, in A and Ors used the expression "and no-one else" he was only confirming that Part 4 of the Act could not be used to detain foreign nationals belonging to other terrorist organisations, such as ETA or the Real IRA. 65. The Commission correctly stated that, beyond their general statements, analysis depended on the generic evidence and the facts of the individual cases. It depended on an evaluation of evidence on the basis of the statutory definitions. It has not been suggested, upon the hearing of this appeal, that such an evaluation has not taken place or that any lack of careful analysis has affected the outcome in particular cases. Article 3 and the admissibility of evidence The issue 66. This issue first arose before the Commission during the appeal of E, the fifth case to be heard. It arose during the cross-examination of witness A called by the Secretary of State. The submission was then made that the Commission should decline to consider any evidence unless it was shown not to have come into existence as a result of a breach of Article 3 and the submission was extended to cover all the Appellants. Both Mr Emmerson QC and Mr Gill QC have made submissions on the issue in this Court, Mr Emmerson taking the lead. 67. It is necessary to consider the basis upon which this issue has been considered by the Court. There was no finding by the Commission of torture or other breach of Article 3. Because of their conclusion that the manner in which evidence was obtained went not to admissibility but only to weight, the Commission did not express conclusions as to what, if any, of the material before it emerged as a result of conduct contrary to Article 3 of the Convention. The court can proceed only on the basis that the Commission may have been influenced by such material. 68. In written submissions delivered after the hearing, Mr Burnett QC, for the Secretary of State, has argued that, on the facts of the present appeals, the issue of principle in relation to Article 3 material does not arise. The case was not however put on that basis, Mr Emmerson putting the point, without objection, that there was material before the Commission which caused the issue of principle to arise and it is not known whether the Commission gave weight to it. Moreover, Mr Burnett concedes that, if there is any such information, it has been evaluated only as part of a broader picture based on information obtained from a variety of sources. On that basis, if some of the material is to be excluded, a re-appraisal of the remaining material is required. 69. The court of course would prefer to deal with established facts than with hypotheses but, in the circumstances, it is not unreasonable to be asked to give a ruling on the issue of admissibility. The court cannot sensibly make its own findings of fact on the bulk of material before the Commission and is not invited to do so. What Mr Emmerson in substance seeks is a declaration that the Commission are not to have regard to evidence which was or may have been obtained in breach of Article 3 of the Convention. Alternatively, to adopt the more limited submission put consistently at the hearing, he seeks a finding that there is an exclusionary rule prohibiting the admission of statements made by a http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 16/113