9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 112. In R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet (No.3) [2000] 1 AC 147, it was common ground that international law prohibiting torture has the character of jus cogens or a peremptory norm, i.e. one of those rules of international law which have a particular status. Lord Browne-Wilkinson stated, at page 198: "the jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state because the offenders are "common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution:" Demjanjuk v Petrovsky (1985) 603 F.supp. 1468" 113. By way of general comment on Article 7 of the International Covenant on Civil and Political Rights (1976) which provides, insofar as is material, that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment", the Human Rights Committee set up under the Covenant stated on 10 March 1992 that: "It is important for the discouragement of violations under Article 7 that the law must prohibit the use or admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment. " Article 12 of the UN General Assembly Declaration of 1975, which covers some of the same ground as Article 7 of the Covenant, provides: "Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings." General Assembly Declarations, of which there are many, do not impose legal obligations but act as guidelines for the world community. Further submissions 114. Mr Emmerson accepts that derivative evidence, with an existence independent of a tainted interrogation, is admissible regardless of its reliability or truth. The Appellants, he said, do not advance any "fruits of the poisoned tree" doctrine. He referred to Lord Diplock's statement in Sang (p436E) that "there is no discretion to exclude evidence discovered as the result of an illegal search". 115. He also submits, however, that there is no need, in this case, to rule on the difficult questions which may arise upon derivative evidence, such as stolen goods found as a result of a tainted confession. He seeks to establish what he describes as the core proposition that the Commission should not consider evidence consisting of statements obtained in breach of Article 3. 116. Mr Emmerson (though not Mr Gill) submits that the exclusionary principle does not bind the Secretary of State. It binds only a judicial body and it is immaterial whether the Secretary of State can take into account evidence obtained in breach of Article 3. The exclusionary rule applies not between the executive and the individual but between the court and the executive. In his reply, Mr Gill submitted that no valid distinction can or ought to be drawn between what the Secretary of State can consider in order to justify certification and what the Commission can consider in a Section 25 appeal. Mr Burnett considered extraordinary the submission that a distinction could be drawn between what the Secretary of State could have regard to under Section 21 and what the Commission could have regard to under Section 25. 117. I say now that I cannot accept that submission of Mr Emmerson. If the Commission takes the view that admission of evidence before it is abhorrent, the Commission should say so in clear terms: The evidence is not admitted because it is abhorrent. On that finding, it is abhorrent for the executive to rely on evidence obtained in breach of Article 3. It would be wrong for the Secretary of State to certify on the basis of evidence which, because it would not be admissible before the Commission, would inevitably require the discharge of the certificate by the Commission. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 25/113