9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) vouchsafes the result for which he contends. In particular, the principle must be one which, by force of its constitutional or fundamental nature, subordinate legislation such as Rule 44(3) cannot lawfully override in the absence of express or at least specific authority: see for example such cases as Simms. 244. In what might such a principle consist? Mr Emmerson has two candidates. First he submits that the admission by SIAC of evidence which may have been obtained by torture would by the common law amount to an abuse of process. He says that this principle of abuse of process is independent of the common law rule relating to the exclusion of improperly obtained confessions. Whether that latter rule depended on the need to exclude unreliable admissions or more generally on the law's repugnance to torture, the condemnation of abuse of process is distinctly based on the common law's refusal to tolerate arbitrary or oppressive conduct by State authority. It amounts to a constitutional fundamental, and it would be violated by SIAC's receiving evidence which may have been obtained by means of torture or other violation of Article 3. 245. Mr Emmerson's second argument on this part of the case was that the reception of evidence of the kind objected to would constitute a violation of ECHR Article 6(1); and the court should read Part IV of ATCSA so as to avoid such a result, and so hold that such evidence should be excluded. I should say at this stage that in developing his case both on the common law and Article 6 Mr Emmerson was at pains to muster the support of CAT Article 15 which, in both contexts, was he said "an important source of guidance". 246. Mr Emmerson also advanced a subsidiary argument. It took a little teasing out, and that was done with the assistance of further written submissions supplied after the close of the hearing. It was, as in the end I understood it, as follows. (1) Admission of evidence of the kind objected to would violate the United Kingdom's obligations under CAT Article 15. But (2) compliance with our international obligations (other than those arising under ECHR) is a condition of a lawful derogation under ECHR Article 15. (3) We should therefore construe ATCSA as not permitting the admission of such evidence; it is to be presumed that the derogation was lawful, and the statute should be interpreted (so far as possible) to promote that result. The Common Law – Abuse of Process 247. Mr Emmerson placed substantial reliance on recent leading cases dealing with abuse of the process in the criminal jurisdiction: Ex p. Bennett, R v Mullen (in which the judgment of the Court of Appeal Criminal Division delivered by the Vice President contains substantial citations from their Lordships' opinions in Bennett), and in particular R v Looseley in their Lordships' House. With respect I need consider only the reasoning in Looseley. There were two cases before their Lordships. Both involved entrapment or alleged entrapment; in each the accused had supplied heroin to undercover police officers. I need say nothing more about the facts. Lord Nicholls said this: "1. My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment, with which these two appeals are concerned, is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen." Lord Nicholls proceeded to discuss earlier learning, not least their Lordships' decision in R v Sang in which the House affirmed that, aside from admissions and confessions, the court was not concerned with how evidence was obtained. Then at paragraphs 11 and 12 he considered s.78 of the Police and Criminal Evidence Act 1984, and continued: "12. … Most recently in R v Shannon [2001] 1 WLR 51, 68, para 39 Potter LJ, as I read his judgment, accepted that evidence may properly be excluded when the behaviour of the http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 62/113