9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) The Common Law – Constitutional Principle 248. In my judgment the reasoning in Looseley rests on a general constitutional principle, which their Lordships then considered in the particular context of criminal prosecutions. It is the most elementary principle in our books. It is that the law forbids the exercise of State power in an arbitrary, oppressive or abusive manner. This is, simply, a cardinal principle of the rule of law. The rule of law requires, not only that State power be exercised within the express limits of any relevant statutory jurisdiction, but also fairly and reasonably and in good faith. Consequently the courts will not entertain proceedings, or receive evidence in ongoing proceedings, if to do so would lend aid or reward to the perpetration of any such wrongdoing by an agency of the State. Thus if a criminal prosecution is the fruit of such State misconduct, the court will not hear the case; or, depending on the facts, it may be enough to exclude the testimony of a particular witness or witnesses. 249. Because the principle is entirely general, its deployment in the context of legal proceedings to see that State misconduct does not prosper is obviously not limited to criminal prosecutions. If the State sought in any form of judicial process to obtain a favourable result, or some other kind of advantage, by relying on unconstitutional conduct by its servants acting on its behalf, the court dealing with the case would not allow it and would take whatever steps were required to prevent it: whether by stopping the case, debarring a defence, or excluding evidence. Accordingly, while the plain differences between the conventional criminal process and the regime of appeals under ATCSA s.25 are important and have to be recognised, they are simply irrelevant to the application of the principle I have described. The Secretary of State is no more entitled to rely on State abuse of power in a SIAC appeal than in any other kind of lis. 250. It follows, in my judgment, that were the Secretary of State to rely before SIAC on a statement which his agents had procured by torture, or which had been procured with his agents' connivance at torture, SIAC should decline to admit the evidence; and this is so however grave the emergency. I apprehend it is fanciful to suppose that such a state of affairs might eventuate. In fairness Mr Burnett accepted without qualification that SIAC would rightly exclude such evidence. Still, the principle should be stated and stated clearly. Here, the ratio of the Israeli Supreme Court's decision in Public Committee Against Torture in Israel & ors v Israel & ors marches with the common law. The Israeli General Security Service ("GSS") had employed methods amounting to torture (certainly if judged at Strasbourg they would be held to constitute violations of ECHR Article 3) in the interrogation of persons suspected of terrorist crimes. Application was made to the Supreme Court (I summarise) to test the legality of what was done. The court held that the general power to interrogate did not authorise the GSS to employ "physical means" unless they were "inherently accessory to the very essence of an interrogation and were both fair and reasonable". Under the heading "A Final Word" President Barak, giving the judgment of the court, said this: "39. This decision opens with a description of the difficult reality in which Israel finds herself security wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. This having been said, there are those who argue that Israel's security problems are too numerous, thereby requiring the authorisation to use physical means. If it will nonetheless be decided that it is appropriate for Israel, in light of its security difficulties to sanction physical means in interrogations (and the scope of these means which deviate from the ordinary investigation rules), this is an issue that must be decided by the legislative branch which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The pointed debate must occur there. It is there that the required legislation may be passed, provided, of course, that a law infringing upon a suspect's liberty 'befitting the values of the state of Israel', is enacted for a proper purpose, and to an extent no greater than is required (see art 8 of the Basic Law: Human Dignity and Liberty)." http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 64/113