9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 976 at para.46). The ECtHR has also recognised that the admissibility of evidence is primarily for national law. In Ferrantelli and Santangelo v Italy [1996] 23 EHRR 288, the Court stated, at paragraph 48: "It [the Court] recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair." Mr Emmerson accepts that the application of Article 6 does not involve a general exclusionary rule, but cites examples of situations in which an application of Article 6 has been held to require exclusions. 84. Mr Emmerson submits that there is a principle binding on the Commission requiring it to exclude altogether from its consideration of the evidence the product of interviews of third parties where the material had in fact been obtained by torture. Sufficient material as to possible torture had been brought to the attention of the Commission, it is submitted. Its production placed a burden on the Commission to consider the issue and to exclude from its consideration evidence that may have been obtained by torture. Even if there is no doubt about its reliability, it should be excluded. No judicial body can lend authority to evidence obtained by torture by admitting it. The rule applies whether the torture is by a United Kingdom public official or an official of another state and it is immaterial whether it is a party involved in the litigation or a third party who is tortured. The Commission, and any other judicial body, should demonstrate its repugnance to the means used to produce evidence by refusing to admit it. 85. Mr Burnett submits that the 2001 Act should be construed in accordance with its purpose. It was enacted because of a threat to the life of the nation and as a reaction to a new type of terrorist. The security of the United Kingdom and the life and welfare of its inhabitants was at stake. As Brooke LJ stated in A & Ors, at paragraph 89, the Court is concerned "not only with matters of personal liberty but with matters of life or death of possibly thousands of people". It is accepted that there is a tension between the two concerns. The Court is invited, when resolving the three legal issues before it, to consider in this context the nature of the task undertaken by the Security Services. Their skill is in evaluating and assessing information obtained from numerous different and disparate sources. The Court is also asked to bear in mind the importance of international co-operation in the fight against terrorism. The sharing of information between law enforcement agencies in different states is vital. A requirement to ascertain how information had been obtained by another state would damage international relationships and impair the free flow of information. The Convention is a pragmatic instrument, it is submitted, and should be applied realistically. The common law 86. Reliance is placed on the common law rule as to the exclusion of confessions in criminal trials and its rationale. It is accepted that there is no authority applying the common law rule to the interview of third parties but in principle it should apply, Mr Emmerson submits. To rely on the tainted confession of a third party is no less an affront to the Court. 87. Mr Emmerson's starting point is the longstanding common law rule classically stated in Ibrahim v The King [1914] AC 599 at 609. Giving the judgment of the Judicial Committee of the Privy Council, Lord Sumner stated: "It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale." 88. The old common law rule is now included within the scope of the statutory rule in Section 76 of the Police and Criminal Evidence Act 1984 ("the 1984 Act"). The section provides: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 19/113