9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) was not obtained in a certain way. In reaching its conclusion on this point, however, SIAC will find itself taking into account evidence, and possibly, argument, which would not normally be admissible or advanced to a court. 519. So far as the burden of proof is concerned, I consider that SIAC should bear in mind the difficulties which both parties face in relation to establishing the circumstances in which the primary statement was obtained. This will inevitably mean that, although the initial burden ultimately rests on the Secretary of State, the sort of evidence which might be sufficient to discharge that burden would be such as might not be very convincing in the context of civil, let alone criminal proceedings. Having said that, it is only fair to the appellants to add that precisely the same considerations would apply to the admissibility and value of the evidence and arguments which they may wish to advance to support the contention that the Secretary of State will not have discharged the burden of proof resting on him. 520. I have considered whether it could be said that it is, in fact, unnecessary, indeed inappropriate, for SIAC to reach a conclusion that a statement was, or, as the case may be, was not, given under torture, and that it could merely take into account, when considering all the evidence and arguments in the round, that the statement in question may (or could conceivably, or is very likely to) have been obtained under torture as part of the overall exercise of deciding whether or not there are "reasonable grounds" within s25(2)(a) of the 2001 Act. At first sight, such a course, which was not pressed by any party on this appeal, has its attractions, not least because it could be said to be consistent with the general approach to the assessment which SIAC has to carry out, and, indeed, consistent with some of the comments in Rehman, particularly what was said by Lord Hoffmann at paragraph 56. 521. However, it appears to me that this is not a sensible, or indeed a permissible, course. Although SIAC's general approach to the evidence and arguments must involve considering whether, taken in the round, there can be said to be "reasonable grounds" for suspicion or belief sufficient to satisfy s25(2) of the 2001 Act, it is still necessary to decide what factors can properly be taken into account when considering that question. If a statement made under torture is not properly admissible, then it has to be excluded from those factors. Accordingly, once it is rationally contended that a statement, which might otherwise properly be relied on, was obtained under torture, I consider that SIAC must determine whether it was, in fact, so obtained. Complaints about the hearing before SIAC 522. On the basis of my view of the arguments, the appellants have succeeded on one issue of principle which has been argued before us, namely whether or not SIAC is entitled to receive and take into account as evidence statements made by third parties under torture, and, albeit to a qualified extent, the appellants have also succeeded on the question of the burden of proof in connection therewith. 523. If I am right in this connection, it will probably be necessary for this court to go on to consider, in relation to each of the appellants, each item of evidence which was before SIAC and consisted of a statement made by a third party who is said by the appellants to have made the statement under torture. In particular, it will be necessary to consider whether SIAC made a finding as to whether or not the statement was obtained by torture, and, whether, in reaching its conclusion, SIAC applied the right burden and standard of proof. If is appears that SIAC went wrong in connection with any such item of evidence in relation to a particular appellant, it will be necessary to remit his appeal to SIAC. Indeed, as at present advised, it seems to me that if there is any real possibility of SIAC having gone wrong in connection with a particular piece of evidence, justice would require the appeal to be remitted to SIAC. 524. In light of the discussions which took place at the beginning of the hearing of this appeal, it may well be that, at least in the case of some of the appeals, the Secretary of State would agree to the appeal being remitted to SIAC without a further hearing. That could only be done with the formal agreement of the Secretary of State. 525. However, in light of the fact that Pill and Laws LJJ do not take the same view as I do as to the inadmissibility of statements obtained under torture, none of these matters need to be considered. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 110/113