9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) I make no comment as to what the legal position would be if the United Kingdom Parliament passed legislation to sanction the use of torture in the course of interrogation. 251. This decision of the Supreme Court of Israel illustrates, if I may respectfully say so, a basic truth which applies in any jurisdiction where public power is subject to the rigour of democracy and the rule of law. It is that State power is not only constrained by objective law – that is, the imperative that it be exercised fairly, reasonably and in good faith and within the limits of any relevant statute. More than this: the imperative is one which cannot be set aside on utilitarian grounds, as a means to a further end. It is not in any way to be compromised. This, I think, is the theme of Lord Steyn's observations in R v Latif, when (holding that in any given case it is for the judge to decide whether there has been an abuse of process, amounting to an affront to the public conscience) he said at 113B: "But it is possible to say that in a case such as the present, the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means." 252. Thus the constitutional principle which forbids abuse of State power rules out reliance by the Secretary of State, before SIAC or any other tribunal in this jurisdiction, upon any statement obtained by torture which the State has procured or connived at. 253. But I am quite unable to see that any such principle prohibits the Secretary of State from relying, for the purposes of ATCSA ss.21 and 25, on evidence coming into his hands which has or may have been obtained through torture by agencies of other States over which he has no power of direction. If he has neither procured the torture nor connived at it, he has not offended the constitutional principle which I have sought to outline. In that case the focus shifts, as it seems to me, back to the law of evidence. Given that the specific rule against involuntary confessions is not engaged (we are not dealing with tortured defendants), the general rule – evidence is admissible if it is relevant, and the court is not generally concerned with its provenance – applies. At the very least, there is nothing to displace Rule 44(3). 254. Any other approach seems to me to be replete with difficulty. First, I cannot believe that the law should sensibly impose on the Secretary of State a duty of solemn enquiry as to the interrogation methods used by agencies of other sovereign States. Apart from the practical unreality, I can find no sound juridical base for the imposition of such a requirement. Next, it seems to me quite impossible to create a distinction between the categories of material which the Secretary of State may take into account under s.21 and the categories to be considered by SIAC under s.25. But if the Secretary of State is bound to dismiss from his mind material which may have been obtained by violations of Article 3, his duty under s.21 becomes extremely problematic. He may be presented with information of great potential importance, where there is, let us say, a suspicion as to the means by which, in another jurisdiction, it has been obtained? What is he to do? The common law obliges him to abide by the constitutional principle I have described. It does not, in this context, do more. 255. I shall of course have to consider Mr Emmerson's submissions on CAT as "an important source of guidance" (for the common law and Article 3) to see whether they alter the position. I find it convenient to address that after dealing with Mr Emmerson's second argument on this part of the case, relating to ECHR Article 6(1). ECHR Article 6(1) 256. It is common ground that Article 6 applies to s.25 proceedings, on the basis that the appellant's civil rights – indeed his very right to liberty – are engaged. This court in A, X, Y so held. The question is therefore whether the admission of evidence which may have or has been obtained by torture renders the determination (by means of s.25) of his rights unfair. 257. Mr Emmerson cited a good deal of Strasbourg authority in order to persuade us that this question should be answered affirmatively. They included Austria v Italy (a decision of the Committee of Ministers adopting the Commission's Report), Barbera & ors v Spain and Ferrantelli & anor v Italy. But all of these were cases of actual, alleged or suspected torture or ill-treatment of the applicants http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 65/113