9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) not in that case retrospectively, from an application of Article 6 (per Lord Hobhouse at paragraph 81). 122. It is submitted that the burden of proving that the relevant evidence was not obtained in breach of Article 3 is upon the Secretary of State. It would be nonsensical, Mr Emmerson submits, to place a burden on an appellant to establish that the evidence relied on had been obtained in breach of Article 3. It is impossible for the Appellants to conduct investigations, for example, at Guantanamo Bay. The witness A before the Commission, professed ignorance of ill-treatment. Such burden as may have been on the Appellants was discharged by the production of newspaper articles showing, for example, admissions by United States Authorities which came close to admissions either of torture or of other conduct in breach of Article 3, according to the severity of ill-treatment required to fall within Article 3 indicated in Ireland v United Kingdom (1978) 2 EHRR 25. It had been demonstrated that there was a serious issue to be addressed. Four volumes of further material are now available. 123. It is submitted that if an exclusionary rule exists, there is no difficulty in interpreting Part 4 of the 2001 Act consistently with it. It should be construed in that way if possible. Conclusions 124. The repugnance of the common law to the admission at a trial of statements obtained from defendants by torture is clear. That repugnance is also expressed in international instruments and by international tribunals. Article 3 of the Convention, derogation from which is not permitted, is expressed in plain terms and the provisions of Article 15 of UNCAT are comprehensive. UNCAT imposes, in international law, strict obligations upon the states party, including the United Kingdom. The abuse of process jurisdiction developed by the English courts, and also recognised in the statutes of international tribunals, enables the courts to prevent what they regard as an abuse of state power. 125. For reasons already given, it would not in my judgment be a satisfactory outcome to hold that the Secretary of State is not constrained by an exclusionary rule whereas the Commission, as a court, is so constrained. The Commission monitors the exercise of powers by the Secretary of State and, if there is an exclusionary rule, the Commission cannot permit the Secretary of State to ignore it. The question as to what information the Secretary of State is entitled to take into account when performing his duty under Section 21(1) must be confronted on the basis that he can do only what the Commission, in its consideration, regards as lawful. 126. The issue is as to the effect of this jurisprudence upon the duties of the Secretary of State under Section 21 of the 2001 Act and on the Commission under Section 25. The issue does not turn upon the different times at which the appraisals are to be made. If free to do so, the court should interpret the law in accordance with United Kingdom obligations of the Crown under international instruments. These include the obligations under the Convention and UNCAT already considered and obligations placed on the United Kingdom by Security Council Resolution 1373. The comprehensiveness of the obligations under that Resolution, some of which are set out at paragraph 26, support the view that the Secretary of State is expected to cast his net wide in obtaining information. 127. On the assumption that the 2001 Order is lawful, an assumption this court is obliged to make on the basis of A & Ors, legislation such as the 2001 Act can be expected in order to discharge the obligations under the Security Council Resolution and the Secretary of State's duty to safeguard national security. The circumstances arising are very different from those in a criminal trial which is the context of most of the jurisprudence considered in this judgment, with its concern for safeguards for defendants. Under the 2001 Act certification (and consequent detention) are justified upon a suspicion and a belief. The mental process involved in forming a reasonable suspicion was examined by Lord Hope in O'Hara, cited at paragraph 32. Powers can be exercised while the Appellants choose to remain in the United Kingdom. They are entitled to leave. A justification for the derogation is that removal might itself result in treatment contrary to Article 3 of the Convention. 128. It is necessary to consider the process likely to be followed by the Secretary of State in performing his duty under Section 21. He and his officials are likely to have a great deal of information about the general situation covered by the derogation and about particular individuals. That was the case with the present Appellants. Some of the information before the Secretary of State will be in the form of statements from witnesses. Some of it is likely to be hearsay, first or second degree, on which the http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 27/113