9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 268. Mr Emmerson's argument to the effect that CAT informs the Article 6 obligation is, in my judgment, open to like objections. Our adherence to the ECHR, and now our incorporation of its core provisions into our domestic law by the HRA, does not carry on its back an acceptance that other international obligations should drive our administration of Article 6. These observations of Lord Bingham in Brown v Stott are with respect very much in point: "In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a 'living tree capable of growth and expansion within its natural limits' (Edwards v Attorney General for Canada [1930] AC 124, 136 per Lord Sankey LC), but those limits will often call for very careful consideration." 269. To my mind this reasoning is in line with what was said by Dawson J in A v Minister for Immigration and Ethnic Affairs in the High Court of Australia: "[T]he purpose of an instrument may… be pursued in a limited way, reflecting the accommodation of the differing viewpoints…" (my emphasis). Accordingly we should be very wary of expanding treaty obligations into territory where it is by no means clear that the founders meant to tread. 270. In my judgment, then, just as Mr Emmerson's reliance on CAT article 15 in the common law context proves too much, so also in the context of ECHR Article 6(1). A general requirement to interpret Article 6 in harmony with other rules of international law does not make compliance with these other rules a condition of compliance with Article 6. That proves too much; it makes for too exuberant a reading of the Convention, a reading which cannot sit with the strictures of Lord Bingham and Dawson J which I have cited. It is not, in my judgment, a systematic condition of compliance with Article 6 that CAT Article 15 should also be complied with. 271. Nothing in the jurisprudence of the Committee against Torture militates against this conclusion. I accept, as Mr Emmerson submitted, that PE v France shows that the Committee considered that CAT Article 15 applied, or was capable of applying, in proceedings in State A in which evidence obtained by torture in State B was sought to be adduced. The case also suggests (paragraph 6.6) that it is for the author of any complaint brought under Article 15 to demonstrate that it is well-founded; and that requires (as appears from the words of the Article) that it be established that the statement in question was obtained by torture. The case is by no means an engine that begins to drive CAT Article 15 into the substance of ECHR Article 6. 272. There remains, on this part of the case, what I have called Mr Emmerson's subsidiary argument, which runs as follows. (1) Admission of evidence of the kind objected to would violate the United Kingdom's obligations under CAT Article 15. But (2) compliance with our international obligations (other than those arising under ECHR) is a condition of a lawful derogation under ECHR Article 15. (3) We should therefore construe ATCSA as not permitting the admission of such evidence; it is to be presumed that the derogation was lawful, and the statute should be interpreted (so far as possible) to promote that result. 273. I mean no discourtesy to Mr Emmerson, nor to his careful written submissions delivered after the close of the hearing, in dismissing this argument out of hand. If it were viable at all, it would require the http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 69/113