9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) Secretary of State is entitled to rely in forming a suspicion and belief. Some of it will be derivative evidence, which has come to light as a result of statements obtained, and is accepted to be admissible. Material is also likely to be provided by other governments, including evidence based on hearsay. 129. In that context, it would be contrary to the exercise of the statutory power as intended by Parliament, and also unrealistic, to expect the Secretary of State to investigate each statement with a view to deciding whether the circumstances in which it was obtained involved a breach of Article 3. It would involve investigation into the conduct of friendly governments with whom the Government is under an obligation to co-operate. Such a duty with respect to each individual statement is inconsistent, in this context, with the power to act on suspicion and belief. In this context, the safeguards for suspected persons must take different forms from those expected in a criminal trial and they include regular reviews by the Commission and Parliamentary monitoring of the legislation. 130. The value judgment required of the Secretary of State when deciding to issue a certificate will normally be based, as it was in these cases, on an assessment of information obtained from many and varied sources. Diligent and conscientious enquiry is required before a certificate can be issued. The statute requires the Secretary of State, in the interests of national security, to form a general and overall view with respect to the person's continued presence in the United Kingdom. 131. As to the Commission, it must review the Secretary of State's sources of information. For the Commission to be involved in deciding upon the provenance of each piece of information available to the Secretary of State would be likely to be a detailed and complex exercise. Such a duty would be inconsistent with a statutory power conferred on the Secretary of State for a legitimate purpose and would distract from the overall view which the statute requires when assessing whether reasonable suspicion and belief were present. Some acknowledgement of the Secretary of State's expertise and responsibilities is also appropriate. Provided the Secretary of State is acting in good faith, a recognition of his responsibility for national security is required when assessing his approach to the material available to him. In the context of the 2001 Act and 2003 rules, the exclusionary rule sought cannot be introduced. 132. The decision in extradition proceedings in Ramda does not, in my judgment, upon the above analysis, translate into the present statutory framework. Ramda was facing a criminal charge in France and the Court requested further information from France as to how proceedings there would be conducted. I leave open for further consideration the extent to which, upon a request for extradition, an English court is entitled, in this context, to investigate the legal procedures of the requesting state. 133. The obligation contained in Article 15 of UNCAT is not part of domestic law. In so far as its application would require an analysis of sources before a reasonable belief or suspicion could be formed, it would be directly contrary to the statutory intention in Part 4 in the 2001 Act, and rule 44 of the 2003 Rules. If Article 15 alone were held to be applicable, a distinction would have to be made during investigations between torture and the other forms of ill-treatment mentioned in Article 3, a concept difficult to engage with the statutory powers and duties. 134. As to the third route I accept, of course, that the court should attempt to construe domestic law so as to make it compliant with the international obligations of the United Kingdom. The obligation in Article 15 of the Convention, in relation to consistency with other obligations under international law, is not, however, part of domestic law. For the reasons given when considering the other routes, Part 4 of the 2001 Act cannot in my judgment be construed so as to introduce Article 15 of UNCAT into domestic law by a different route. Beyond that, the submission is an attack upon the lawfulness and effect of the derogation which is not a subject now before this court. 135. On my finding, argument about the burden and standard of proof is of little significance. For the reasons given by Lord Slynn and Lord Hoffman in Rehman, the concept of standard of proof is not helpful. The task of the Secretary of State under Section 21 and that of the Commission under Section 25 is that of evaluation and judgment. The evaluation will have regard to the source of the material and the circumstances in which it was obtained. 136. If Article 15 of UNCAT were to be relevant, its wording suggests a burden on the person alleging torture. That was the view taken by the UNCAT Committee in P E v France. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 28/113