basic requirements of a fair trial: Garcia Alva v Germany (2001) 37
EHRR 335; R (West) v Parole Board, R (Smith) v Parole Board (No 2)
[2005] UKHL 1, [2005] 1 WLR 350. Sensibly, therefore, the parties are
agreed that the applicability of article 6 should be left open and the issue
resolved on the premise that article 5(4) applies.
26.
The Secretary of State submits that under the Convention the
admissibility of evidence is a matter left to be decided under national
law; that under the relevant national law, namely, the 2001 Act and the
Rules, the evidence which the Secretary of State seeks to adduce is
admissible before SIAC; and that accordingly the admission of this
evidence cannot be said to undermine the fairness of the proceedings. I
shall consider the effect of the statutory scheme in more detail below.
The first of these propositions is, however, only half true. It is correct
that the European Court of Human Rights has consistently declined to
articulate evidential rules to be applied in all member states and has
preferred to leave such rules to be governed by national law: see, for
example, Schenk v Switzerland (1988) 13 EHRR 242, para 46;
Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288, para 48; Khan
v United Kingdom (2000) 31 EHRR 1016, para 34. It has done so even
where, as in Khan, evidence was acknowledged to have been obtained
unlawfully and in breach of another article of the Convention. But in
these cases and others the court has also insisted on its responsibility to
ensure that the proceedings, viewed overall on the particular facts, have
been fair, and it has recognised that the way in which evidence has been
obtained or used may be such as to render the proceedings unfair. Such
was its conclusion in Saunders v United Kingdom (1996) 23 EHRR 313,
a case of compulsory questioning, and in Teixeira de Castro v Portugal
(1998) 28 EHRR 101, para 39, a case of entrapment. A similar view
would have been taken by the Commission in the much earlier case of
Austria v Italy (1963) 6 YB 740, 784, had it concluded that the victims
whom Austria represented had been subjected to maltreatment with the
aim of extracting confessions. But the Commission observed that article
6(2) could only be regarded as being violated if the court subsequently
accepted as evidence any admissions extorted in this manner. This was
a point made by my noble and learned friend Lord Hoffmann in the
much more recent devolution case of Montgomery v H M Advocate,
Coulter v H M Advocate [2003] 1 AC 641, 649, when he observed:
“Of course events before the trial may create the
conditions for an unfair determination of the charge. For
example, an accused who is convicted on evidence
obtained from him by torture has not had a fair trial. But
the breach of article 6(1) lies not in the use of torture
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