9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 409. From this analysis of the cases, it appears to me to follow that the appellants have not demonstrated that there is any authority to support the proposition that there is, or necessarily should be, a rule of common law whereby any statement obtained from a person under torture should be inadmissible, at least where neither the tortured nor the torturer is party to the proceedings. However, that is not the end of the matter, because it is not as if the Secretary of State has been able to establish that there is any case which does establish that such a statement is admissible. The point may therefore be said to be an open one, although it is fair to say that, in the absence of any authority suggesting that the common law requires a certain type of evidence to be excluded, the presumption would be that it does not require the exclusion of such evidence. 410. The common law is far from being static or petrified. Indeed, the change in the House of Lords' attitude in the 20 years between the decisions in Sang and Looseley is a good illustration of that (see Looseley at paragraph 11). Given that there is no case, and no reference in any authoritative text, to which we have been referred where it has been held that a statement obtained by torture is or is not admissible, it appears to me that this is a point which we are free to decide. However, it is not a point which should be resolved on the basis of moral feeling or personal preference; it should be determined, so far as possible, in a way which is consistent with the present state and character of the common law. 411. In considering this sort of question, it may often be unsafe to embark on the inquiry without bearing in mind the impact of ECHR, not least because, if the common law is, as was observed by Lord Bingham and Lord Hoffmann in R -v- Lyons [2003] 1 AC 76, informed by norms of international law, it must all the more be informed by international treaties which are incorporated into national law. However, as the appeal on this issue was argued on a rather compartmentalised basis, I am content to consider the point without reference to ECHR. After all, if the effect of ECHR is to exclude evidence obtained under torture, the appellants do not need to succeed on the common law, and if a statement obtained by torture is not to be excluded pursuant to ECHR, on the basis that it is a matter for the English court, it would be unlikely to influence the common law on the topic. 412. In my view, there are four powerful reasons for concluding that, at least where it is the executive which is seeking to rely on evidence obtained by torture, the common law would exclude it. The first reason is the revulsion from torture. In his recent Essex Clifford Chance lecture on Torture (29 January 2004), Lord Hope of Craighead considered the history of the use of torture in connection with judicial proceedings. Torture, as a means of extracting the truth from suspects, "was not permitted in any of the common law courts in England as part of the ordinary course of the administration of justice" (p6). As Lord Hope explained at p9, torture was last used in England in connection with judicial proceedings in 1640. In other European countries it continued until well into the 18th, and even into the 19th, century (see p7). The outright rejection of torture was voiced in Sir Thomas Smith's De Republica Anglorum, and in the 1906 edition edited by Mr Leonard Alston, one finds this in chapter 24, on p106: "The nature of our nation is free, stout, haulte, prodigall of life and bloode: but contumely, beatings, servitude and servile torment and punishment it will not abide." Outright rejection of torture can be said to carry with it rejection of evidence obtained under torture, whoever the torturer or the tortured may be. 413. Secondly there is the fact that at least in the present appeals, it is the UK government, through the Secretary of State, which is seeking to rely upon evidence which, at least according to the appellants, was extracted under torture. While this is not a case where there is any question of the executive having been in any way connected with the torture, it remains the case that it is the executive which is seeking to rely in legal proceedings upon evidence which is alleged to have been obtained through torture. In a sense, therefore, it can be said that the executive has "adopted" the means by which the evidence was extracted, and therefore that the duty of the court to intervene has arguably been triggered. 414. Thirdly, one of the principal reasons why a confession made by an accused is excluded from evidence unless it was voluntary, is that such a confession is self evidently unreliable. That reason would apply with equal force to a statement obtained from a third party under torture. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 92/113