9.11.2017
A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004)
"any interpretation of the rights and freedoms guaranteed [by ECHR] has to be consistent
with 'the general spirit of the Convention, an instrument designed to maintain and promote
the ideals and values of a democratic society [quoting from an earlier judgment]."
456. After referring to ECHR Article 3, in the next paragraph the ECtHR stated that it's
"absolute prohibition of torture" was "also to be found … in other international covenants
on civil and political rights and the 1969 American Convention on Human Rights."
457. In the same paragraph, after referring to Article 3 of CAT, the court said this:
"The fact that a specialised treaty should spell out in detail a specific obligation attaching
to the prohibition of torture does not mean that an essentially similar obligation is not
already inherent in the general terms of [ECHR] Article 3."
458. V -v- United Kingdom (1999) 30 EHRR 121 is another example of international conventions affecting
the construction of Articles of ECHR. In that case, a minor alleged that there was a breach of ECHR
Article 3 because he was subjected to what the ECtHR called "criminal proceedings [which] took place
over three weeks in public in an adult Crown Court with attendant formality, and that, after his
conviction, his name was permitted to be published" (paragraph 75). The ECtHR then went on to refer
to the guarantees provided by Article 40(2)(b) of the UN Convention on the Rights of the Child
(1989), Rule 8 of the Beijing Rules, and the 1987 Recommendation of the Committee of Ministers of
the Council of Europe. It then stated that these three documents:
"demonstrate … an international tendency in favour the protection of the privacy of
juvenile defendants, and … in particular … the UN Convention is binding in international
terms on the United Kingdom in common with all other member states of the Council of
Europe."
459. It is right to mention that, in the same paragraph, the ECtHR went on to say that:
"Whilst the existence of such a trend is one factor to be taken into account when assessing
whether the treatment of the applicant can be regarded as acceptable, under other articles
of the Convention, it cannot be determinative of the question whether the trial in public
amounted to ill-treatment attaining the minimum level of severity necessary to bring it
within the scope of Article 3."
460. It is, I think, worth emphasising the general aim of CAT as identified in Furundzija and quoted with
approval by the ECtHR in Al-Adsani, when considering the wider context. If courts of states that are
parties to ECHR decide that evidence obtained under torture is admissible, then, while not expressly
condoning torture, they would effectively be indicating that the use of torture to obtain evidence is not
merely impliedly condoned, but is worthwhile, because such evidence may well be taken into account
in those courts.
461. The fact that the torture may have occurred in a country not a signatory to ECHR appears to me to be
of no real significance. In Soering, the ECtHR held that it was wrong for the UK to extradite a person
to Virginia, USA when this would be likely to result in treatment which, if it was in a state which was
a party to ECHR would infringe ECHR Article 3. Indeed, the priorities engaged by ECHR as between
torture abroad and domestic national security were described thus by Lord Hoffmann in Rehman, in
paragraph 54:
"The European jurisprudence makes it clear that whether deportation is in the interests of
national security is irrelevant to rights under [ECHR] Article 3. If there is a danger of
torture, the government must find some other way of dealing with a threat to national
security."
462. I turn to the second aspect, namely the effect on an appellant under s25 of the 2001 Act of allowing the
Secretary of State to adduce, and SIAC to take into account, evidence in the form of a statement by a
http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html
99/113
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents