9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) general rule allowed in Sang. In the absence of having heard argument on the point, I would not like to rest any decision on it. After all, it is arguably only relevant in criminal cases, and it is of particular application to jury trials. 430. I turn, then, to the contention that the English common law requires the court to exclude evidence obtained by torture as a result of developments in international law. 431. In Lyons, at paragraph 13, Lord Bingham observed: "Even before the Human Rights Act 1998 the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law." 432. At paragraph 27, Lord Hoffmann said this: "Of course, there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation." 433. In this connection, the appellants do not rely upon the ECHR, because, of course, unlike in Lyons, it is open to them effectively to rely directly on ECHR because the hearing before SIAC took place after the 1998 Act had come into force. What the appellants do rely on is CAT, and in particular Article 15 thereof. They contend that, by admitting evidence obtained under torture by an official of a foreign government, particularly, it is said (though I am not sure why), a government which is a signatory to CAT (eg the United States), SIAC would be putting the UK government in breach of its obligations under Article 15 of CAT. 434. I do not consider that that contention, even if it is right insofar as the effect of Article 15 of CAT is concerned, is correct. The mere fact that the UK is party to an international convention under which the states parties agree that an action should not be taken, whether in the courts or elsewhere within their jurisdiction cannot, without more, result in the common law preventing the taking of that action. It is well established that international treaties are not themselves part of domestic law, and that the English courts have no jurisdiction to apply them directly as domestic law, at least until they are incorporated, which would normally be by statute, into national law. That was made clear by Lord Hoffmann in paragraph 27 of his speech in Lyons where he said: "[I]t is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them." If the common law simply incorporated every commitment entered into by the UK government in an international treaty, it would make a nonsense of the principle identified by Lord Hoffmann. At paragraph 39 in Lyons, he said that a similar argument "comes to nothing more than an attempt to give direct domestic effect to an international treaty". 435. Indeed, the opening words of Article 15 of CAT themselves contain a difficulty for the appellants' argument based on common law, over and above any problem of principle. That Article envisages that each contracting state will ensure that evidence obtained by torture cannot be relied on in its national courts. Article 15 therefore carries with it the notion that, if the current national law does not have such an exclusionary rule, something more will have to be done by the national government to ensure that it does. No such further action has been identified on behalf of the appellants in the present case. 436. In my judgment, there would be a formidable argument for contending that the common law should, irrespective of the impact of the ECHR, be extended to exclude from evidence statements obtained by torture, if it could be shown that there is, in the international hierarchy, an "ordinary" customary rule that statements obtained by torture should not be admissible in a court. In that connection, it is clear that the prohibition of torture itself is not merely such a customary rule, but now "has the character of jus cogens, or a peremptory norm" which involves a higher rank even that ordinary customary rules: see per Lord Browne-Wilkinson in R -v- Bow Street Metropolitan Stipendiary Magistrate ex p http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 95/113