9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52." Other passages in Brown v Stott, if I may respectfully say so, repay close attention, not least what was said by Lord Steyn at 708E-709E and by Lord Hope of Craighead at 718H-720F. I will not set them out. Overall the Strasbourg cases show, as Mr Burnett submits, that the States Parties enjoy a margin of appreciation in the application in practice of the Article 6 right. He cites Stubbings and Others v UK, Chahal v UK, and Tinnelly & Sons & ors v UK, and again I will not lengthen this judgment by citing the texts. 260. At this stage it is I think important that I should dispel any possible misunderstanding. I am by no means suggesting that the Article 6 right should in some way be marginalised in the name of national security. I insist only that the right's application, and its scope in practice, is highly dependent upon the practical context in which it is asserted; and that this proposition is commonplace in the judgments of the Strasbourg court. Once that is recognised, and one recalls the nature of the s.25 exercise – belief and suspicion, not proof – then in my judgment the admission of evidence of third parties which was or may have been obtained, without any connivance of the British State, in violation of ECHR Article 3 is no more offensive to Article 6 than it is to the common law. At least I would hold, given that under HRA s.2 our duty is no more nor less than to "take into account" the Strasbourg jurisprudence, that that is the position as a matter of English human rights law. 261. It is convenient at this stage, in light of what I have so far said, to consider an authority of the Divisional Court on which Mr Emmerson places particular reliance. This is the case of Ramda. The court gave relief by way of judicial review against an order by force of which the claimant was to be extradited to France. The case against the claimant involved alleged terrorist acts and the evidence against him included a confession of one Bensaid which was said to have been made under torture. Giving the judgment of the court Sedley LJ said at paragraph 22: "It is only where it can be demonstrated that the approach taken by the requesting state's courts to admissibility will itself be such as to create a real risk of a fundamentally unfair trial that the principle of mutual respect… may have to yield. In a case such as the present this requires the Home Secretary to be satisfied of at least two things: that Bensaid's incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine, any argument in the claimant's defence based upon this contention. If the Home Secretary concludes that these elements are established, he will effectively be bound to refuse extradition." It is to be noted (paragraph 16 of the judgment) that counsel for the Secretary of State in that case accepted that if Bensaid's evidence was tainted by his having been beaten up, and it was not going to be excluded at the claimant's trial, then the extradition would be "impermissible". 262. The significance of Ramda for the purpose of Mr Emmerson's argument is, of course, that it concerned tainted evidence coming not from the accused himself but from a third party prosecution witness. I venture to entertain, diffidently and with great respect, some reservations about the decision in the case, both as regards the lengths required of the Secretary of State to investigate the procedures of a foreign friendly State seeking a fugitive's extradition under established treaty provisions, and as regards the impact on the fairness of a prospective trial of the fact that the trial court may be asked to consider evidence against the accused (not consisting of a statement made by himself) which was or may have been obtained by oppressive conduct. If we are looking, as Article 6 in terms enjoins us, at fairness, why is fairness not satisfied by the availability of robust argument going to the weight of the tainted evidence? 263. More particularly, and this I think is at the heart of the matter, we must address this question: why should we attribute to Article 6 a requirement, absent from the common law, to adopt an absolute rule against admissibility in case of evidence said to be tainted by violations of Article 3? In my judgment, http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 67/113