9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 77. Article 4 requires each state party to ensure that all acts of torture are offences under its criminal law. Effect was given to that obligation in England and Wales by Section 134 of the Criminal Justice Act 1988. A defence is provided in subsection (4). "It shall be a defence for a person charged with an offence under the section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct." 78. On this aspect of the case, there is a great deal more material before this court than was before the Commission and the submissions have been fuller and more elaborate. The Commission accepted that while UNCAT is not part of domestic law "we should not do anything which contravenes it unless compelled by domestic law to do so". The Commission stated that if there is material which shows that torture or other breaches of Article 3 may have been used to obtain the information relied on, the material must be considered, "since, at the very least, it will bear on the proper weight to be given to the information". The Commission concluded, at paragraph 84: "We are, of course, not bound by any rules of evidence, but must act fairly in considering the appeal of each Appellant. But the means by which information is obtained goes to its reliability and weight and not to its admissibility, and that is how we have considered it". 79. The Appellants submit that the Commission was in error, at paragraphs 83 and 84, in failing to conclude that information obtained from a third party by methods which breached Article 3 is inadmissible before it. It is submitted, first, that an exclusionary rule emerges from the common law, which should reach out to embrace the point. Secondly, it emerges from an application of Article 6, either in combination with or as an extension of the common law, incorporating as it now does the concepts expressed in Article 6 and the jurisprudence under it. If, contrary to that submission, the rule does not so arise, it arises when those provisions are applied and construed in the light of Article 15 of UNCAT. The exclusionary rule in Article 15 of UNCAT is relevant to all three routes, it is submitted, and the common law and Article 6 must be interpreted consistently with UNCAT. The third route is that, having regard to the international obligation of the United Kingdom under Article 15(1) of the Convention not to take measures under the Article which are inconsistent with its other obligations under international law, domestic law must take account of Article 15 of UNCAT if the derogation relied on is to be lawful. The 2003 Rules must be construed accordingly. 80. A fourth possibility was raised. When dealing with enquiries made by members of the court, having completed his submissions, Mr Emmerson on the second morning of the hearing referred to Article 15 of UNCAT as being part of customary international law and therefore a common law obligation. This submission had not been made before the Commission, in the grounds of appeal or in the skeleton argument. Authority was requested but not then supplied. Save that Mr Burnett reserved his position, no further reference was made to the point until Mr Burnett had completed his submissions for the Respondent. In his reply, Mr Emmerson sought leave to make the submission. Mr Burnett opposed the application, submitting that the submission raised very wide issues which could not appropriately be raised at such a late stage. 81. Mr Emmerson agreed that the submission would involve considering four propositions: first, whether the rule that evidence obtained by torture was inadmissible in any judicial proceedings was in breach of customary international law, second, by what route it became part of customary international law, third, the extent to which and how customary international law finds its way into the common law and fourth, whether rule 44 of the 2003 Rules had the effect of disapplying it. Mr Emmerson frankly accepted that the issue raised entirely fresh arguments and material and that no detailed analysis had been prepared. 82. Having considered the submissions, the court refused the application. It was too late to make the submission. In any event, in the context of the case and the points already taken, the Court was inclined to the view, and so was Mr Emmerson, that any new window it might open was a narrow one. Routes one and two 83. The Article 6 jurisprudence is so interwoven with that of the common law that, in this context, I do not see the two routes as essentially separate and distinct, though Section 2(1) of the 1998 Act requires the Court only to "take into account" ECtHR decisions (Lord Hoffmann in R v Lyons & Ors [2003] 1 AC http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 18/113