9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) grounds", and could not be relied on by SIAC in order to decide whether there were such reasonable grounds. 384. This topic gives rise to three issues. The first issue is whether, as a matter of principle it is in fact open to the Secretary of State in evidence before SIAC, and SIAC in its decision, to rely upon a statement which was made by a third party when under torture by officials of a third country. In contending that the answer is in the negative, the appellants put their case on three bases. The first is the English common law. The second is a right to a fair trial under ECHR Article 6. The third argument turns on the Derogation Order and ECHR Article 15. 385. The second and third issues only arise if the appellants succeed on one or more of those three arguments. The second issue is, if a statement obtained by torture is excluded from evidence, how far that exclusion goes. The third issue is whether it is for the Secretary of State to prove that the statement was not obtained by torture, or for the appellant to prove that it was obtained by torture and, in either case, whether the standard of proof is the civil, balance of probabilities standard, or the criminal, beyond reasonable doubt, standard. 386. I shall consider these issues and arguments in turn. Before doing so, however, it is right to emphasise that the Secretary of State does not accept that any evidence adduced before SIAC in these cases consisted of statement made when under torture. Indeed, he contends that SIAC concluded that no evidence before it did consist of such statements. That is a matter we may have to determine, or at least consider, once the issues of principle are resolved. Does the common law preclude reliance on statements obtained by torture? 387. The appellants' contention that English common law requires a statement obtained by torture to be excluded from the court's consideration is based essentially on two arguments. The first is that this is, or should be, the position in light of the state of the relevant authorities. Alternatively, it is submitted that it is the position as a result of the common law developing in the light of international law (other than ECHR). 388. So far as the English common law is concerned, reliance was placed by the appellants on the powers, indeed the duty, of a criminal court: (a) to exclude evidence of an accused's confession, save where satisfied that it was freely made; and (b) to exclude evidence (or even to stay the prosecution) where the production of the evidence (or the proceedings themselves) would involve an abuse of process. 389. The exclusion from evidence in a criminal trial of an accused's confession, save where it was clearly made voluntarily, is a very well-established rule (and now enshrined in statute), although not one without criticism: see for instance DPP -v- Ping Lin [1976] AC 574 at 599-600 per Lord Hailsham of St Marylebone. Before us, there was some discussion as to whether the basis for the exclusion of a confession, save where it was wholly voluntary, was based on the need to avoid abuse by the executive, or concern about the unreliability of any but a voluntary confession. Whatever the basis in earlier cases, (where the justification for the rule is not entirely clear) I consider that the modern answer is that both factors are in point. 390. In this connection, I would refer to the speech of Lord Mustill in R -v- Director of Serious Fraud Office ex p Smith [1993] AC 1 at 30E-32D. He first identified six types of immunity, including: "a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies" (at 30F). He then went on to identify various motives, which, he pointed out, would not necessarily all apply to each type of immunity which he had identified. Those motives were: "The first is a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business. … http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 88/113