A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) (2004)A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals)
54. The appellants contend that it is for a party seeking to adduce evidence to establish its admissibility if this is challenged. The Secretary of State submits that it is for a party seeking to challenge the admissibility of evidence to make good the factual grounds on which he bases his challenge. He supports this approach in the present context by pointing to the reference in article 15 of the Torture Convention to a statement "which is established to have been made as a result of torture." There is accordingly said to be a burden on the appellant in the SIAC proceedings to prove the truth of his assertion.
55. I do not for my part think that a conventional approach to the burden of proof is appropriate in a proceeding where the appellant may not know the name or identity of the author of an adverse statement relied on against him, may not see the statement or know what the statement says, may not be able to discuss the adverse evidence with the special advocate appointed (without responsibility) to represent his interests, and may have no means of knowing what witness he should call to rebut assertions of which he is unaware. It would, on the other hand, render section 25 appeals all but unmanageable if a generalised and unsubstantiated allegation of torture were in all cases to impose a duty on the Secretary of State to prove the absence of torture. It is necessary, in this very unusual forensic setting, to devise a procedure which affords some protection to an appellant without imposing on either party a burden which he cannot ordinarily discharge.
56. The appellant must ordinarily, by himself or his special advocate, advance some plausible reason why evidence may have been procured by torture. This will often be done by showing that evidence has, or is likely to have, come from one of those countries widely known or believed to practise torture (although they may well be parties to the Torture Convention and will, no doubt, disavow the practice publicly). Where such a plausible reason is given, or where SIAC with its knowledge and expertise in this field knows or suspects that evidence may have come from such a country, it is for SIAC to initiate or direct such inquiry as is necessary to enable it to form a fair judgment whether the evidence has, or whether there is a real risk that it may have been, obtained by torture or not. All will depend on the facts and circumstances of a particular case. If SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit the evidence. Otherwise it should admit it. It should throughout be guided by recognition of the important obligations laid down in articles 3 and 5(4) of the European Convention and, through them, article 15 of the Torture Convention, and also by recognition of the procedural handicaps to which an appellant is necessarily subject in proceedings from which he and his legal representatives are excluded.
57. Since a majority of my noble and learned friends do not agree with the view I have expressed on this point, and since it is of practical importance, I should explain why I do not share their opinion.
58. I agree, of course, that the reference in article 15 to "any statement which is established to have been made as a result of torture" would ordinarily be taken to mean that the truth of such an allegation should be proved. That is what "established" ordinarily means. I would also accept that in any ordinary context the truth of the allegation should be proved by the party who makes it. But the procedural regime with which the House is concerned in this case, described in paragraphs 6-7 and 55 above, is very far from ordinary. A detainee may face the prospect of indefinite years of detention without charge or trial, and without knowing what is said against him or by whom. Lord Woolf CJ was not guilty of overstatement in describing an appellant to SIAC, if denied access to the evidence, as "undoubtedly under a grave disadvantage" (M v Secretary of State for the Home Department  EWCA Civ 324,  2 All ER 863, para 13). The special advocates themselves have publicly explained the difficulties under which they labour in seeking to serve the interests of those they are appointed to represent (Constitutional Affairs Committee of the House of Commons, The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates, Seventh Report of Session 2004-05, vol II, HC 323-II, Ev 1-12, 53-61).
59. My noble and learned friend Lord Hope proposes, in paragraph 121 of his opinion, the following test: is it established, by means of such diligent enquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet. The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC because its source will not have been "established".
60. The authorities relied on by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry to support their conclusion are of questionable value at most. In El Motassadeq, a decision of the Higher Regional Court of Hamburg of 14 June 2005, the United States Department of Justice supplied the German court, for purposes of a terrorist trial proceeding in Germany with reference to the events of 11 September 2001, with summaries of statements made by three Arab men. There was material suggesting that the statements had been obtained by torture, and the German court sought information on the whereabouts of the witnesses and the circumstances of their examination. The whereabouts of two of the witnesses had been kept secret for several years, but it was believed the American authorities had access to them. The American authorities supplied no information, and said they were not in a position to give any indications as to the circumstances of the examination of these persons. Two American witnesses who attended to give evidence took the same position. One might have supposed that the summaries would, without more, have been excluded. But the German court, although noting that it was the United States, whose agents were accused of torture, which was denying information to the court, proceeded to examine the summaries and found it possible to infer from internal evidence that torture had not been used. This is not a precedent which I would wish to follow. But at least the defendant knew what the evidence was.
61. In Mamatkulov and Askarov v Turkey (Application Nos 46827/99 and 46951/99, unreported, 4 February 2005) the applicants had resisted an application by the Republic of Uzbekistan to extradite them from Turkey to stand trial on very serious charges in Uzbekistan. They resisted extradition on the ground, among others, that if returned to Uzbekistan they would be tortured. There was material to show that that was not a fanciful fear. On application made by them to the European Court of Human Rights, it indicated to Turkey under rule 39 of its procedural rules that the extradition should not take place until it had had an opportunity to examine the validity of the applicants' fears. But in breach of this measure, and in violation of article 34 of the Convention, Turkey surrendered the applicants. The Chamber found, in effect, that no findings of fact could be made since the applicants had been denied an opportunity to have inquiries made to obtain evidence in support of their allegations: paragraph 57 of the judgment. The approach of the Grand Chamber appears from paragraphs 68 and 69 of its judgment:
Despite a compelling dissent, from which I have quoted in paragraph 26 above, the Grand Chamber concluded that Turkey had not violated article 3 of the Convention in surrendering the applicants. It did so in reliance on assurances received by Turkey from the Uzbek Government and the Uzbek Public Prosecutor before and after the surrender, and medical reports by doctors at the Uzbek prison where the applicants were being held. These matters were not sufficient to allay the concerns of the minority, and understandably, since Turkey's unlawful conduct prevented the European Court examining the case as it would have wished. But the applicants were able to participate fully in the proceedings in Turkey and were not denied knowledge of the case against them.
62. I regret that the House should lend its authority to a test which will undermine the practical efficacy of the Torture Convention and deny detainees the standard of fairness to which they are entitled under article 5(4) or 6(1) of the European Convention. The matter could not be more clearly put than by my noble and learned friend Lord Nicholls of Birkenhead in the closing paragraph of his opinion.
63. The Court of Appeal were unable to conclude that there was no plausible suspicion of torture in these cases. I would accordingly allow the appeals, set aside the orders made by SIAC and the Court of Appeal, and remit all the cases to SIAC for reconsideration in the light of the opinions of the House.LORD NICHOLLS OF BIRKENHEAD
64. Torture is not acceptable. This is a bedrock moral principle in this country. For centuries the common law has set its face against torture. In early times this did not prevent the use of torture under warrants issued by the King or his Council. But by the middle of the 17th century this practice had ceased. In 1628 John Felton assassinated the Duke of Buckingham. He was pressed to reveal the names of his accomplices. The King's Council debated whether 'by the Law of the Land they could justify the putting him to the Rack'. The King, Charles I, said that before this was done 'let the Advice of the Judges be had therein, whether it be Legal or no'. The King said that if it might not be done by law 'he would not use his Prerogative in this Point'. So the judges were consulted. They assembled at Serjeants' Inn in Fleet Street and agreed unanimously that Felton 'ought not by the Law to be tortured by the Rack, for no such Punishment is known or allowed by our Law': Rushworth, Historical Collections (1721) vol 1, pages 638-639.
65. Doubt has been cast on the historical accuracy of this account: Jardine, 'Use of Torture in the Criminal Law of England', (1837), pages 61-62. The precise detail does not matter. What matters is that never again did the Privy Council issue a torture warrant. Nor, after 1640, did the king issue a warrant under his own signet: see Professor Langbein, 'Torture and the Law of Proof', pages 134-135. In Scotland prohibition of torture came later, after the union of the two kingdoms, under section 5 of the Treason Act 1708.
66. It is against the background of this long established principle and practice that your Lordships' House must now decide whether an English court can admit as evidence in court proceedings information extracted by torture administered overseas. If an official or agent of the United Kingdom were to use torture, or connive at its use, in order to obtain information this information would not be admissible in court proceedings in this country. That is not in doubt. It would be an abuse of the process of the United Kingdom court for the United Kingdom government to seek to adduce in evidence information so obtained. The court would not for one moment countenance such conduct by the state. But what if agents of other countries extract information by use of torture? Is this information admissible in court proceedings in this country?
67. Torture attracts universal condemnation, as amply demonstrated by my noble and learned friend Lord Bingham of Cornhill. No civilised society condones its use. Unhappily, condemnatory words are not always matched by conduct. Information derived from sources where torture is still practised gives rise to the present problem. The context is cross-border terrorism. Countering international terrorism calls for a flow of information between the security services of many countries. Fragments of information, acquired from various sources, can be pieced together to form a valuable picture, enabling governments of threatened countries to take preventative steps. What should the security services and the police and other executive agencies of this country do if they know or suspect information received by them from overseas is the product of torture? Should they discard this information as 'tainted', and decline to use it lest its use by them be regarded as condoning the horrific means by which the information was obtained?
68. The intuitive response to these questions is that if use of such information might save lives it would be absurd to reject it. If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way. Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest.
69. In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this.
70. The next step is to consider whether the position is the same regarding the use of this information in legal proceedings and, if not, why not. In my view the position is not the same. The executive and the judiciary have different functions and different responsibilities. It is one thing for tainted information to be used by the executive when making operational decisions or by the police when exercising their investigatory powers, including powers of arrest. These steps do not impinge upon the liberty of individuals or, when they do, they are of an essentially short-term interim character. Often there is an urgent need for action. It is an altogether different matter for the judicial arm of the state to admit such information as evidence when adjudicating definitively upon the guilt or innocence of a person charged with a criminal offence. In the latter case repugnance to torture demands that proof of facts should be found in more acceptable sources than information extracted by torture.
71. Difficulties arise at the interface between the different approaches permitted to the executive on the one hand and demanded of the courts on the other hand. Problems occur where the lawfulness of executive decisions is challenged in court and there is an apparent 'mismatch', as the Secretary of State described it, between the material lawfully available to the executive and the evidence a court will admit in its proceedings. Suppose a case where the police take into account information obtained by torture abroad when arresting a person, and that person subsequently challenges the lawfulness of his arrest. Can the police give evidence of this information in court when seeking to justify the arrest?
72. In my view they can. It would be remarkable if the police could not. That would create a bizarre situation. It would mean the police may rely on this evidence when making an arrest, but not if the lawfulness of the arrest is challenged. That would be a curious application of a moral principle. That would be to treat a moral principle as giving with one hand and taking away with the other. That makes no sense. Either the police may rely on such information when carrying out their duties, or they may not. If they can properly have regard to such information despite its tainted source, and in the particular case do so, they should not be precluded from referring to this information in court when giving evidence seeking to justify their decisions and actions. Repugnance to the use in court of information procured by torture does not require the police to give an incomplete account of the matters they took into account when making their decisions. (Different considerations apply where, in the interests of national security, there are statutory or other restrictions on the use of certain matters in legal proceedings, such as the contents of intercepted communications or information attracting public interest immunity. In these cases the 'mismatch' arises from a perceived need to preserve confidentiality, not from the application of a broad moral principle.)
73. So far I have noted the distinction between executive decisions of an essentially operational or short-term character and judicial decisions on criminal charges. Tainted information may be taken into account in the former case but not the latter. I have also noted that when reviewing the lawfulness of such executive decisions a court may have regard to all the matters the decision-maker properly took into account.
74. But this categorisation by no means covers the whole ground. Many cases do not conform to this simple division of functions. Executive decisions, such as deportation, may have serious long-term consequences for an individual. And judicial supervision of an executive decision may take different forms. The Anti-terrorism, Crime and Security Act 2001 is a recent instance. Certification of a person as a 'suspected international terrorist' is the responsibility of the Secretary of State. The issue of this certificate authorises the minister to exercise extensive powers, including power under section 23 to detain the certified person indefinitely in certain circumstances. This power of detention, in its adverse impact on an individual, goes far beyond the adverse impact of executive acts such as search and arrest. Detention by order of the executive under the 2001 Act is not a preliminary step leading to a criminal charge.
75. Despite this difference, in the case of this Act the rationale underlying the distinction between the executive's ability to take into account information procured by torture and the court's refusal to admit such evidence holds good. It holds good because the Special Immigration Appeals Commission, or SIAC in short, is required to review every certificate, by way of appeal or otherwise, and form its own view on whether reasonable grounds currently exist for believing a person's presence is a risk to national security and for suspecting he is a terrorist: sections 25 and 26. If SIAC considers these grounds do not exist the certificate must be cancelled. Thus the certificate issued by the Secretary of State will lead nowhere if SIAC considers reasonable grounds do not exist. The certificate, although a prerequisite to exercise of the Secretary of State's powers under the Act, will be comparatively short-lived in its effect if SIAC considers the necessary reasonable grounds do not exist. In other words, the certificate is in the nature of an essential preliminary step.
76. For its part, in forming its own view on whether reasonable grounds exist SIAC is discharging a judicial function which calls for proof of facts by evidence. The ethical ground on which information obtained by torture is not admissible in court proceedings as proof of facts is applicable in these cases as much as in other judicial proceedings. That is the present case.
77. Similar problems are bound to arise with other counter-terrorism legislation. One instance concerns decisions by the Secretary of State to deport on the ground that deportation is conducive to the public good as being in the interests of national security. An appeal lies to SIAC, which must allow an appeal if the decision involved the exercise of discretion by the minister and SIAC considers the discretion should have been exercised differently: section 2 of the Special Immigration Appeals Commission Act 1997, as substituted by the Nationality, Immigration and Asylum Act 2002. Another instance concerns non-derogating control orders made by the Secretary of State under section 2 of the Prevention of Terrorism Act 2005. Here the role of the court is expressed to be of a different and more limited character than under the 2001 Act. Under the 2005 Act the supervisory role of the court regarding non-derogating control orders is essentially limited to considering whether the relevant decision of the Secretary of State is 'flawed'. In deciding this issue the court must apply the 'principles applicable on an application for judicial review': section 3(11).
78. Whether the Secretary of State may take tainted information into account when making decisions under statutory provisions such as these, and whether SIAC's function requires or permits evidence to be given of all the matters taken into account by the Secretary of State, are questions for another day. They do not call for decision on these appeals, and they were not the subject of submissions. It would not be right therefore to express any view on these issues.
79. For these reasons, and those stated by my noble and learned friends, I would allow these appeals.
80. In doing so I associate myself with the observations of Lord Bingham of Cornhill on the burden of proof where the admissibility of evidence is challenged before SIAC on the ground it may have been procured by torture. The contrary approach would place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge. In practice that would largely nullify the principle, vigorously supported on all sides, that courts will not admit evidence procured by torture. That would be to pay lip-service to the principle. That is not good enough.
81. On 23 August 1628 George Villiers, Duke of Buckingham and Lord High Admiral of England, was stabbed to death by John Felton, a naval officer, in a house in Portsmouth. The 35-year-old Duke had been the favourite of King James I and was the intimate friend of the new King Charles I, who asked the judges whether Felton could be put to the rack to discover his accomplices. All the judges met in Serjeants' Inn. Many years later Blackstone recorded their historic decision:
82. That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride and the admiration of enlightened foreign writers such as Voltaire and Beccaria. In our own century, many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal "rendition" of suspects to countries where they would be tortured: see Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House 105 Columbia Law Review 1681-1750 (October, 2005)
83. Just as the writ of habeas corpus is not only a special (and nowadays infrequent) remedy for challenging unlawful detention but also carries a symbolic significance as a touchstone of English liberty which influences the rest of our law, so the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system. Not only that: the abolition of torture, which was used by the state in Elizabethan and Jacobean times to obtain evidence admitted in trials before the court of Star Chamber, was achieved as part of the great constitutional struggle and civil war which made the government subject to the law. Its rejection has a constitutional resonance for the English people which cannot be overestimated.
84. During the last century the idea of torture as a state instrument of special horror came to be accepted all over the world, as is witnessed by the international law materials collected by my noble and learned friend Lord Bingham of Cornhill. Among the many unlawful practices of state officials, torture and genocide are regarded with particular revulsion: crimes against international law which every state is obliged to punish wherever they may have been committed.
85. It is against that background that one must examine the Secretary of State's submission that statements obtained abroad by torture are admissible in appeals to the Special Immigration Appeals Commission ("SIAC") under section 25 of the Anti-terrorism, Crime and Security Act 2001. First, he says that there is no authority to the contrary. He accepts that the common law has long held that confessions obtained by torture are inadmissible against an accused person. Indeed, the common law went a good deal further and by the end of the eighteenth century was refusing to admit confessions which had been obtained by threats or promises of any kind. But nothing was said about statements obtained from third parties. The general rule is that any relevant evidence is admissible. As Lord Goddard said in Kuruma v The Queen  AC 197, 203, "the court is not concerned with how the evidence was obtained". He referred to a remark of Crompton J in R v Leathem (1861) 8 Cox CC 498, 501, overruling an objection to production of a letter which had been discovered in consequence of an inadmissible statement made by the accused: "It matters not how you get it; if you steal it even, it would be admissible."