9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) 403. I believe that that is supported by the decision of the Court of Appeal (Criminal Division) in R -vShannon [2001] 1 Cr App R 168 where the defendant had been enticed to commit a crime involving supply of controlled drugs by a journalist acting as an agent provocateur. The court held that it was open to the judge hearing the prosecution to exclude the evidence on the grounds that it was unfair, but there was no principle which required its exclusion. Further, even in his strongly expressed observations, Lord Steyn in Latif indicated that the common law regards the decision whether to permit a trial to proceed on the basis of tainted events or evidence, was a balancing exercise, rather than subject to an absolute rule. However, I accept that that does not mean that, in cases where the taint is so great or of a particular nature, the discretion cannot be required to be exercised only one way. 404. In any event, the appellants' argument based on these cases faces an additional difficulty. The present proceedings are, as Lord Woolf held in paragraph 57 of his judgment in A -v- Secretary of State, albeit in the context of ECHR Article 6, civil proceedings. They are not criminal proceedings, unlike all the cases so far considered. To me, at least, the point has limited attraction. While appeals to SIAC under s25 are, technically, civil proceedings, they are, from the point of view of an appellant, in many ways as penal as criminal proceedings, and, in light of the nature of the evidence which is sufficient to justify an appellant's indefinite imprisonment, in some ways more penal than criminal proceedings. 405. So far as civil proceedings are concerned, the law, at least as it has been traditionally understood, is summarised thus in Phipson on Evidence 15th Edition at paragraph 33-34: "The courts have on occasions disclaimed any general discretion in civil cases to exclude evidence on grounds of unfairness. There is no discretion to exclude evidence on the ground that it was unlawfully obtained. Nor is there any authority for the exclusion of evidence that its prejudicial effect outweighs its probative value." However, as the editors go on to explain, there are certain exceptional grounds for excluding facts, statements of documents from evidence, such as public interest immunity, privilege, and similar fact evidence. 406. In Blackledge -v- Arrow Nominees Inc (unreported, 22nd June 2000), the Court of Appeal held that, in a civil case, it was open to a judge to dismiss proceedings (in that case a petition under s459 of the Companies Act 1985) in circumstances where the applicant, with the "object of frustrating a fair trial" had falsified and destroyed documents, with the result that it was not "fair to the respondents - [or] in the interests of the administration of justice generally - to allow the trial to continue", per Chadwick LJ at paragraph 56. In the same paragraph he went on to explain that: "A decision to stop the trial in those circumstances is not based on the court's desire (or any perceived need) to punish the party concerned; rather it is a proper and necessary response where a party has shown that his object is not to have a fair trial which it is the court's function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise." 407. It appears to me that both logic and the reasoning of Lord Nicholls in paragraph 16 and 17 in Looseley suggest that it should be open to a court in civil proceedings to exclude evidence, rather than to take the more drastic steps of striking out the proceedings, if the trial would not be fair were the evidence admitted, but by not admitting the evidence, a fair trial could be achieved. (However, in some cases, a party's behaviour in the conduct of litigation, although very blameworthy, may not result in the claim or defence being struck out, or even in evidence being excluded: see for instance Jones -v- University of Warwick [2003] 1 WLR 954 at paragraph 28). 408. I do not consider that the reasoning in Blackledge is of assistance to the appellants here. There is no suggestion that the UK government was directly or indirectly responsible for, or indeed involved with, the procuring by torture of a statement, which the Secretary of State sought to rely on before SIAC. Nor is there any suggestion that the purpose of an alleged torturer was to interfere with the proceedings before SIAC; indeed it is unlikely in the extreme that any alleged torturer would have had in mind, or even known about, any projected SIAC proceedings. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 91/113