13.
Since there has been no lawfully sanctioned torture in England
since 1640, and the rule that unsworn statements made out of court are
inadmissible in court was well-established by at latest the beginning of
the 19th century (Cross & Tapper on Evidence, 10th edn (2004), p 582),
there is an unsurprising paucity of English judicial authority on this
subject. In Pearse v Pearse (1846) 1 De G & Sm 12, 28-29, 63 ER
950, 957, Knight Bruce V-C observed:
“The discovery and vindication and establishment of truth
are main purposes certainly of the existence of Courts of
Justice; still, for the obtaining of these objects, which,
however valuable and important, cannot be usefully
pursued without moderation, cannot be either usefully or
creditably pursued unfairly or gained by unfair means, not
every channel is or ought to be open to them. The
practical inefficacy of torture is not, I suppose, the most
weighty objection to that mode of examination . . . Truth,
like all other good things, may be loved unwisely - may be
pursued too keenly - may cost too much . . .”
That was not a case involving any allegation of torture. Such an
allegation was however made in R (Saifi) v Governor of Brixton Prison
[2001] 1 WLR 1134 where the applicant for habeas corpus resisted
extradition to India on the ground, among others, that the prosecution
relied on a statement obtained by torture and since retracted. The
Queen’s Bench Divisional Court (Rose LJ and Newman J) accepted the
magistrate’s judgment that fairness did not call for exclusion of the
statement, but was clear (para 60 of the judgment) that the common law
and domestic statute law (section 78 of the Police and Criminal
Evidence Act 1984) gave effect to the intent of article 15 of the
International Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment 1984 (1990, Cm 1775), “the
Torture Convention”, to which more detailed reference is made below.
Involuntary confessions
14.
The appellants relied, by way of partial analogy, on the familiar
principle that evidence may not be given by a prosecutor in English
criminal proceedings of a confession made by a defendant, if it is
challenged, unless the prosecution proves beyond reasonable doubt that
the confession had not been obtained by oppression of the person who
made it or in consequence of anything said or done which was likely, in
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