9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) CAT] unless torture is established. And the assertion by an individual that he or anybody else was tortured may not of itself suffice to prove that he was: he may be seeking to exclude evidence against him which would be damning." 241. I have concluded that we ought to pass judgment on Mr Emmerson's arguments which were advanced as a matter of principle on the torture issue. It is important that the legal position be as clear as possible – for appellants, the Secretary of State, and SIAC itself – when there is a suggestion (which may by no means be liable to be dismissed out of hand) that material relied on may have been obtained by methods involving violations of Article 3. And that leads to the concrete formulation by which I would, for the purposes of these appeals, articulate Mr Emmerson's contention. I would put it thus: where it is credibly asserted that evidence relied on by the Secretary of State has been or may have been directly obtained by means of torture or other violation of Article 3, SIAC should not receive such evidence on an appeal under s.25 (unless, no doubt, the matter were investigated and the assertion reliably contradicted): and this is so whatever view SIAC may provisionally form as to the truth of the evidence. I should explain what I mean by "directly". There is plainly a distinction between (1) evidence directly attributable to torture, such as a statement got from a detainee by means of torture, and (2) material indirectly so obtained: that is to say the existence of facts to which the questioner is alerted by the statement obtained under torture, which can then be followed up. The detainee may for example reveal to his questioner the hidden location of terrorist equipment. The Secretary of State, apprised of the stated location, may go and dig up the equipment. Our attention was drawn to s.76(4) (a) of the Police and Criminal Evidence Act 1984 ("PACE") which provides in the context of a criminal trial that where a confession is excluded under s.76(2) because it was or may have been obtained by oppression, the admissibility in evidence "of any facts discovered as a result of the confession" is not thereby affected. It seems to me to be obvious that a fact which became known initially through a tainted statement can be relied on before SIAC, at least if the statement itself does not have to be deployed. The real debate on the torture issue is about the direct use of statements which may have been obtained by torture. 242. I will start with the law of evidence. We were shown much authority to support the proposition that in a criminal trial a confession exacted by threats (a fortiori by actual violence) or promises is without qualification inadmissible. This was, however, an exception to the general rule of the common law, which was that (in civil and criminal cases alike) evidence is admissible if it is relevant, and the court is not generally concerned with its provenance. The general rule, and the exception, are crisply stated by Lord Goddard giving the judgment of the Judicial Committee of the Privy Council in Kuruma v R. I need not with respect set out the relevant passages. The principle is that if a suspect confesses, his confession if it is later to be relied on must be shown to have been freely and voluntarily made: see also R v Thompson. It is a principle which goes back at least as far as Coke. Mr Emmerson sought to persuade us that this exclusionary rule (now encapsulated in s.76 of PACE) enjoys or should enjoy a wider sphere of application, so as to exclude any evidence, not only a defendant's confession, if it was obtained by torture or other ill-treatment, and should be so applied in any kind of proceedings. I have seen nothing in the common law cases which supports that submission. 243. There was some discussion in the course of argument as to whether the basis of the rule about confessions rested upon the perceived unreliability of admissions which had been induced by illtreatment, or some broader ethical principle by which the courts had set their face against letting in such material because they disapproved on moral grounds of the way in which it had been obtained, whether or not it might be reliable. So far as this debate was instigated by myself I should apologise for it, for I have come to think it barren. The reason is that Mr Emmerson cannot rely on any rule of evidence to support his case on the torture issue, whatever its motivation, because SIAC are by subordinate legislation not bound by any rules of evidence. I repeat for convenience Rule 44(3) of the SIAC Procedure Rules: "The Commission may receive evidence that would not be admissible in a court of law." The result is that no appeal to the law of evidence can prosper Mr Emmerson's argument, because any exclusionary rule vouchsafed by the law of evidence (whatever the rule's motivation) is disapplied from proceedings before SIAC by force of Rule 44(3). Mr Emmerson has therefore to show that there exists some over-arching or constitutional principle, not capable of being abrogated by the Rule, which http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 61/113