the overseas authorities. So, usually at least, any investigation will have
to be done by others. On behalf of the Home Secretary, Mr Burnett QC
explained how those in the relevant departments who were preparing a
case for a SIAC hearing would sift through the material, on the lookout
for anything that might suggest that torture had been used. The Home
Secretary accepted that he was under a duty to put any such material
before the Commission. With the aid of the relevant intelligence
services, doubtless as much as possible will be done. And SIAC itself
will wish to take an active role in suggesting possible lines of
investigation, just as the Hamburg court did.
144. In the nature of the case and with the best will in the world, there
is likely to be a limit to what can be discovered about what went on
during an investigation by the authorities in another country. Foreign
states can be asked, but cannot be forced, to provide information. How
far such requests can be pushed without causing damage to international
relations must be a matter for the judgment of the Government and not
for SIAC or any court.
145. When everything possible has been done, it may turn out that the
matter is left in doubt and that, using their expertise, SIAC cannot be
satisfied on the balance of probabilities that the statement in question
has been obtained by torture. If so, in my view, SIAC can look at the
statement but should bear its doubtful origins in mind when evaluating
it. My noble and learned friend, Lord Bingham of Cornhill, proposes,
however, that the statement should be excluded whenever SIAC is
unable to conclude that there is not a real risk that the evidence has been
obtained by torture. It respectfully appears to me that this would be to
replace the true rule, that statements obtained by torture must be
excluded, with a significantly different rule, that statements must be
excluded unless there is not a real risk that they have been obtained by
torture. In effect, the true rule would be inverted. There is no warrant
for Lord Bingham’s preferred rule in the common law, in article 15 of
the Convention against Torture or elsewhere in international law.
Moreover, it would run counter to the approach in the two decisions
which I have mentioned. The real objection, however, is that, for all the
reasons given by the German court, it would be unsound. If adopted,
such an approach would ignore the exceptional nature of the exclusion,
which requires that the relevant factual basis be established. It would
mean that exclusion would be liable to become the rule rather than the
exception. It would encourage objections. It would prevent SIAC from
relying on statements which were in fact obtained quite properly. It
would impede SIAC in its task of discovering the facts that it needs to
form its judgment. I would therefore reject that approach and agree with
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