A/67/396 46. When confronted with an allegation that information may have been obtained by torture, the Ombudsperson proceeds with caution, making enquiries of the State that submitted the information to the greatest extent possible. In assessing the information she takes due account of the reliability implications, as well as the presence or absence of untainted independent corroboration. She also looks for patterns of consistency in assessing the probative value of the information. She does not, however, necessarily exclude information that was or may have been obtained by torture from her assessment since she does not consider herself bound by formal rules of evidence. 47. The Special Rapporteur is gravely concerned by this approach. Lawyers acting for the petitioners have satisfied him that intelligence derived from torture has been used to justify the designation of individuals. The prohibition of torture is jus cogens, and article 15 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that statements that are established to have been made as a result of torture shall not be invoked as evidence in any proceedings. In A and others v. Secretary of State for the Home Department (No. 2), 80 the United Kingdom House of Lords held that a tribunal reviewing intelligence material in a counter-terrorism context could not lawfully consider information obtained by torture (even if it had formed part of the material relied upon by the executive body whose decisions were under review). It also held that when faced with intelligence emanating from detainee reporting in a State known to practice torture, a judicial authority was required to conduct an investigation into the manner in which the intelligence had been obtained and, if satisfied that it was obtained through torture, to disregard it altogether, irrespective of its apparent probative weight. 48. The provisions of article 15 of the United Nations Convention against Torture apply to any proceeding before a judicial or administrative authority in which evidence is assessed under formal procedural rules and in which a decision is rendered. 81 The Special Rapporteur considers that the mandate of the Ombudsperson constitutes such a proceeding, and that if it were a national procedure it would be caught by article 15 of the Convention directly. He endorses, in this regard, the view of the former Special Rapporteur that receipt and reliance on intelligence obtained through torture involves complicity in the commission of an internationally wrongful act and is irreconcilable with the obligation erga omnes to cooperate in the eradication of torture. 82 He also shares the deep concern of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment at attempts to limit the exclusionary principle to national court proceedings, and agrees that receiving information that may be compromised by torture implicitly condones and validates the use of torture, and creates a market for information so acquired. 83 __________________ 80 81 82 83 18 See A and others v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71. See Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture, A Commentary, pp. 531-532 (New York, Oxford University Press, 2008). See A/HRC/10/3, para. 55; and International Criminal Tribunal for the Former Yugoslavia, Furundzija, 10 December 1998, IT-95-17/T10, para. 151. See A/HRC/16/52, paras. 53-56. 12-52254