9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) statements obtained by torture as evidence against suspected terrorists. The second argument is the incongruency of SIAC not being permitted to rely on a statement obtained by torture when considering whether or not to revoke a s21 certificate, in circumstances where there appear to be no reasons why, when such granting the certificate, the Secretary of State should not be able to take into account, indeed might regard himself as obliged to take into account, such a statement. 494. I accept that the legislature has formed the view that Al Qa'eda poses a serious and potentially imminent threat to the security of the realm, and I am also prepared to accept that there are obviously difficulties in finding evidence that person is a member of, or connected with, Al Qa'eda. As a result, I have little doubt but that there may be some, possibly many, members of the public who would regard it as relatively unexceptionable that the Secretary of State should be able to rely as evidence against an appellant, on a statement obtained under torture (at least if it was not torture to which the UK authorities were in any way party). However, in the first place, I have based my conclusion on the provisions of the ECHR and CAT Convention, to both of which the UK government is, and has been for many years, a party. Both those conventions make it clear that torture cannot be justified, however grave and extenuating the circumstances. The ECHR does this through the exclusion of Article 3 from the right to derogate under Article 15. CAT does this by making it clear in terms that torture will never be acceptable - see Article 2(2) thereof. In those circumstances, it is not particularly surprising that there should be a rule that evidence obtained by torture should not be admissible in a court. 495. Secondly, in rejecting the argument based on necessity or exceptional circumstances, I derive support from the decision of the Supreme Court of Israel in Public Committee against Torture in Israel -vIsrael (1999) 7 BHRC 31. In that case, the Israeli Supreme Court had to consider the lawfulness of the use of torture carried out by Israeli security troops on suspected terrorists. Their conclusion in paragraph 38 was this: "According to the existing state of the law, neither the government nor the heads of security services possess the authority to establish directives and bestow authorisation regarding the use of liberty infringing physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general directives which can be inferred from the very concept of an interrogation …. An investigator who insists on employing these methods, or does so routinely, is exceeding his authority. …" 496. In paragraph 39 the Israeli Supreme Court referred to: "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 had 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 interrogation … 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." 497. I accept, of course, that that case was concerned with actual acts of torture carried out by agents of the Israeli government. However, in my view, those observations emphasise two points. First, democratic societies, faced with terrorist threats, should not readily accept that the threat justifies the use of torture, or that the end justifies the means (as Lord Steyn said in Latif). Indeed, it can be said that, by using torture, or even by adopting the fruits of torture, a democratic state is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys. Secondly, if it is thought to be appropriate for a democratic state, or any of its organs, to http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 105/113