9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) Secondly, there is a long history of reaction against abuses of judicial interrogation. … Next there is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal. … Finally there is the desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession, to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are 'voluntary.'" (see at 31D and E and 32A and B) 391. In that case, the applicant, who had been cautioned for an offence under the Companies Act 1985, objected to being required to answer questions put to him in connection with the matter by the Director of the Serious Fraud Office pursuant to s2 of the Criminal Justice Act 1987. Accordingly Lord Mustill's second reason was a reference to "abuses of judicial interrogation", rather than what, on the appellants' case here, is said to be what Lord Hoffmann called, in paragraph 47 in R -v- Looseley [2001] 1 WLR 2060, "an abuse of executive power". 392. None of the cases to which we were referred on the topic of confessions in criminal proceedings concerned the prosecution's right to use in evidence, a statement which had been obtained by force, threat or inducement from a person other than the defendant, or where the force, threat or inducement was perpetrated by someone independent of any authority in this country. That is, of course, not surprising, not least because (as mentioned above) a statement made by a third party outside court would hardly ever be admissible under common law in criminal proceedings, or indeed in civil proceedings. The third party would be expected to attend court to give evidence himself. There is, therefore, an air of unreality about an inquiry whether the common law would admit evidence of what a third party said outside court, whether under torture or not. 393. Having said that, it is fair to say that it is arguable that three of the four reasons identified by Lord Mustill do not, at least necessarily, justify the exclusion of a statement obtained through torture by a foreign government from someone other than a defendant. The first and third reasons can be said to apply, at least primarily, to confessions by the defendant himself, and not by any means necessarily to statements extracted from someone who is not a party to the proceedings. The second reason can be argued to apply to the authorities in this country, but not to foreign authorities. Even the fourth reason can be said to go to weight - see for example per Lord Hailsham in Ping Lin at 600. 394. Indeed, the Secretary of State can get some assistance from R -v- Sang [1980] AC 402 where the House of Lords concluded that, save (a) in relation to evidence whose prejudicial effect outweighed its evidential value, and (b) in relation to improperly obtained evidence from the accused himself, a judge in criminal proceedings had "no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper means" (see for example per Lord Salmon at 444D-445C). 395. So far as abuse of process is concerned, we were taken to R -v- Looseley, where Lord Nicholls of Birkenhead said in paragraph 1: "My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 89/113