THE SECRETARY OF STATE’S CASE 46. While counsel for the Secretary of State questions the effect and applicability of some of the material on which the appellants rely, he founds his case above all on the statutory scheme established by Part 4 of the 2001 Act. He builds on the appellants’ acceptance that the Secretary of State may, when forming the reasonable belief and suspicion required for certification under section 21, and when acting on that belief to arrest, search and detain a suspect, act on information which has or may have been obtained by torture inflicted in a foreign country without British complicity. That acceptance, he submits, supports the important and practical need for the security services and the Secretary of State to obtai n intelligence and evidence from foreign official sources, some of which (in the less progressive countries) might dry up if their means of obtaining intelligence and evidence were the subject of intrusive enquiry. But it would create a mismatch which Parliament could not have intended if the Secretary of State were able to rely on material at the certification stage which SIAC could not later receive. It would, moreover, emasculate the statutory scheme, which is specifically designed to enable SIAC, constituted as it is, to see all relevant material, even such ordinarily inadmissible material as may be obtained on warranted intercepts. This is reflected in rule 44(3) of the applicable Rules, which dispenses with all rules of evidence, including any that might otherwise preclude admission of evidence obtained by torture in the circumstances postulated. This is not a negligible argument, and a majority of the Court of Appeal broadly accepted it. There are, however, in my opinion, a number of reasons why it must be rejected. 47. I am prepared to accept (although I understand the interveners represented by Mr Starmer QC not to do so) that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6. Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings. -38-