9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) expected to give rise to the conclusion that a trial was not fair. In Saunders -v- United Kingdom (1966) 23 EHRR 313, the court said this at paragraph 74: "[T]he general requirements of fairness contained in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences, without distinction, from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a nonjudicial investigation to incriminate the accused during the trial proceedings." 444. In Teixeira de Castro -v- Portugal (1998) 28 EHRR 101, the ECtHR, after emphasising that the question of admissibility of evidence was generally for the national courts (paragraph 34), went on to say this in paragraph 36: "The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement." The ECtHR concluded that: "The two police officers' actions went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed. That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial." 445. Most in point here, it appears that the use of evidence against an accused person in criminal proceedings which has been obtained from him through torture would inevitably result in his trial not being fair within the meaning of ECHR Article 6(1). This seems to have been accepted by the Council of Ministers, when they adopted the decision of the Commission in Austria -v- Italy [1963] YB 740 see at 784. It also appears to have been assumed by Lord Hoffmann in Montgomery -v- HM Advocate [2003] 1 AC 641 at 649D-E in clear if obiter terms: "Of course events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But a breach of Article 6(1) lies not in the use of torture (which is, separately, a breach of Article 3) but in the reception of the evidence by the court for the purpose of determining the charge." 446. The issue which therefore falls to be considered, as I see it, is whether it can be said that, particularly in light of Article 15 of CAT, the use of a statement, obtained from a third party by torture, against an appellant to SIAC under s25 of the 2001 Act would deprive him of a fair trial. I shall first consider the meaning of Article 15 of CAT and its inter-relationship with ECHR Article 6(1) - ie fairness in the wider perspective. I shall then turn to the effect of admitting in evidence a statement obtained from a third party by torture, against an appellant in a s25 appeal - ie fairness to the particular appellant. 447. On the wider perspective, the first question which has to be considered is whether admission of evidence obtained under torture in another country would involve an infringement of Article 15 of CAT. Technically, it might be said that such an argument must fail in limine, because, as I have mentioned, the Article merely imposes an international treaty obligation on the UK to put into effect exclusionary rules of court procedure in relation to statements obtained by torture. That argument, not, so far as I could see, advanced on behalf of the Secretary of State, is very unattractive, and is, in my view, to be rejected. The UK became party to CAT more than 15 years ago, and has had ample time to implement its obligation under Article 15. Furthermore, I do not think that, if one is otherwise entitled to treat Article 15 of CAT as informing the effect of ECHR Article 6, such a nice drafting point should carry any weight. 448. Another point which did not appear to be pressed on behalf of the Secretary of State, although it was briefly raised in argument, is whether Article 15 of CAT should be read as limited to evidence obtained http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 97/113