9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) themselves who had been defendants to criminal charges in the relevant domestic proceedings. Their territory is that of the common law rule which excludes involuntary confessions. The same is true of this passage from the opinion of Lord Hoffmann in the Privy Council in Montgomery v HM Advocate: "I accept that the Lord Advocate is 'master of the instance' (dominus litis) and that his powers may be greater than those of any prosecutor in English law. But what he clearly does not have is power to determine the charge against the accused. He may, for example, tender inadmissible evidence. But the decision as to whether to admit that evidence as part of the material for determining the charge against the accused is a decision of the court. If the reception of the evidence makes the trial unfair, it is the court which is responsible. Of course events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6.1 lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of article 3 but no breach of article 6.1." (my emphasis) 258. These cases cannot assist Mr Emmerson. If anything, the contrary. In Barbera at paragraph 68 the European Court of Human Rights said this: "As a general rule, it is for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce. The Court must, however, determine… whether the proceedings considered as a whole, including the way in which prosecution and defence evidence was taken, were fair as required by Article 6(1)." This is a consistent theme of the Strasbourg cases. It is repeated (in virtually the same language) in Ferrantelli at paragraph 48. Now, it is obvious that neither the Strasbourg court nor (since the coming into force of the HRA) our courts can abdicate their duty to safeguard the Convention rights. However this theme of the case-law shows, I think, that there is a primary responsibility on the court of trial to adjudicate upon issues of admissibility and weight; indeed I doubt whether authority is needed for such a proposition. To my mind it has a more pointed importance than is suggested by the bland statement in which it consists. It is that questions of fairness under Article 6 are just as sensitive to the kind of proceedings in hand as are questions of admissibility, or for that matter abuse of process, arising under the common law. At this point, in my judgment, the torture issue is face to face with the scrutiny issue. The s.25 process is concerned, not with proof, but with the establishment of reasonable belief and suspicion. The nature and quality of the evidence to be admitted has to be looked at against that essential background. The fairness of the hearing for the purpose of Article 6 has to be judged in the same context. Where proof is required, the reliability of the evidence is particularly acute. In such a case an objection, taken on grounds of unfairness, to the admission of tainted evidence may possess greater force than where issue is joined on the s.25 questions. 259. In short, any read-across from the position arising in criminal prosecutions to the very different kind of lis constituted by a s.25 appeal is liable to be unhelpful and misleading in the context of ECHR Article 6(1). In my judgment this marries with these observations of Lord Bingham of Cornhill, summarising other Strasbourg cases, in Brown v Stott: "The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 66/113