9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) He said this: "[Counsel for the claimant] contends that the central point remains unanswered: how did Bensaid come to have injuries …? If there is no intelligent explanation, [counsel] submits that the Home Secretary would be justified in inferring - in fact might be driven to infer that Bensaid had been beaten up, and at a time so closely prior to the admissions which form a crucial part of the case against both himself and the claimant as to taint them irredeemably with oppression. If so, and if the evidence is not going to be excluded at the claimant's trial, extradition - as [counsel for the Home Secretary] accepts - would be impermissible." 470. Finally, in paragraph 22, Sedley LJ concluded: "Questions of admissibility within the requesting state's criminal process are ordinarily for the courts of the requesting state to decide, especially where admissibility turns upon disputed issues of fact. It is only where it can be demonstrated that the approach taken by the requesting state's courts to admissibility will itself be such as to create a real risk of a fundamentally unfair trial that the principle of mutual respect … may have to yield. In a case such as the present, this requires the Home Secretary to be satisfied of at least two things: that Bensaid's incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine any argument in the claimant's defence based on this contention." (emphasis added). 471. It was not suggested on behalf of the Secretary of State that the decision in Ramda, which is not of course binding on us, was wrong, or that the concession recorded as having been made on his behalf in that case was misinterpreted or wrongly made. As mentioned, it appears to me that the decision and reasoning in Ramda provide significant support for the conclusion I have reached. 472. First, it seems to support the proposition that an accused will not receive a fair criminal trial under ECHR Article 6(1), if the evidence against him includes a statement obtained from a third party under torture. While I accept that a s25 appeal before SIAC is not a criminal trial of an appellant, I do not regard that distinction as very powerful, particularly given the nature of the proceedings, and the consequences of the s25 appeal failing, namely involuntary detention of the appellant, potentially for an indeterminate period. Secondly, although I accept that the decision in Ramda turned in a sense on the construction of ss12 and 13 of the Extradition Act 1989, it would seem very odd if the law of England was such that, on the one hand, its courts were permitted to receive in evidence statements obtained under torture while, on the other hand, its courts were bound to quash extradition orders because the person to be extradited would be prosecuted in a foreign court with the assistance of evidence consisting of a statement obtained under torture. 473. Accordingly, I consider that the appellants have made good their case as to the inadmissibility of statements given under torture. For reasons already discussed, rule 44(3) does not call this conclusion into question. The exclusion is required by what is ultimately a statutory provision, namely a Convention right under the 1998 Act. Further, rule 44(3) must be construed so as to be compatible with ECHR Article 6(1): see ss3 and 6 of the 1998 Act. 474. If my conclusions on the issue so far are correct, they may be said to be somewhat ironic: the common law of England, which has a particularly good record as to the vice of torture since 1640, does not exclude evidence obtained by torture, whereas the law of Europe, where the abolition of torture is rather more recent, would exclude such evidence. This does not cause me to doubt my conclusions. First, as I have explained, the effect of ECHR on the common law has, perhaps somewhat artificially, been excluded from consideration. Secondly, as also mentioned, common law lays somewhat more emphasis on pragmatism, whereas the approach under ECHR is perhaps rather more influenced by moral principle. Thirdly, the very fact that countries in mainland Europe have had a more chequered history over the past 300 years may render their courts more sensitive on issues such as torture. Fourthly, ECHR is an international convention and rather more prone to interpretation by reference to other such conventions than the common law. Evidence obtained by torture: the case based on derogation http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 101/113