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)
137. One therefore comes back to the centuries-old view that statements obtained by torture are unacceptable. To rely on them is inconsistent with the notion of justice as administered by our courts. The Home Secretary does not defile SIAC by introducing such a statement, but he does ask it to rely on a type of statement which British courts would, ordinarily, reject on broad grounds of public policy. SIAC is, of course, different in many ways, as the relevant legislation and regulations show. Therefore, if there were any sign that Parliament had considered the point when passing the Special Immigration Appeals Commission Act 1997 or the 2001 Act, there might be a case for holding that the necessary implication of sections 21, 25 and 26 of the 2001 Act was that SIAC should take account of statements obtained by torture in another country. But that particular issue does not arise since Parliament was never asked to consider the question, either when passing these Acts or when approving the 2003 Rules, including the permissive rule 44(3). The point does not appear to have occurred to anyone. In any event, the revulsion against torture is so deeply ingrained in our law that, in my view, a court could receive statements obtained by its use only where this was authorised by express words, or perhaps the plainest possible implication, in a statute. Here, there are no express words and the provisions actually approved by Parliament do not go so far as to show that the officious bystander who asked whether SIAC could rely on a statement obtained by torture would have been testily suppressed with an "Oh, of course!" from the legislature. I therefore hold that SIAC should not take account of statements obtained by torture.
138. The courts' deep-seated objection is to torture and to statements obtained by torture. The rejection of such statements is an exception to the general rule that relevant evidence is admissible even if it has been obtained unlawfully. On the other hand, the public interest does not favour SIAC rejecting statements that have not in fact been obtained by torture. More particularly, the public interest does not favour rejecting statements merely because there is a suspicion or risk that they may have been obtained in that way. Reports from various international bodies may well furnish grounds for suspicion that a country has been in the habit of using torture. That cannot be enough. To trigger the exclusion, it must be shown that the statement in question has been obtained by torture.
139. I draw support for that general approach from the judgment of the Grand Chamber of the European Court of Human Rights in Mamatkulov and Askarov v Turkey, 4 February 2005. The court had to consider allegations that Turkey had violated article 3 of the Convention by extraditing the applicants to Uzbekistan where political dissidents, such as the applicants, were tortured in prison. In support of their allegations, the applicants "referred to reports by 'international investigative bodies' in the human rights field denouncing both an administrative practice of torture and other forms of ill-treatment of political dissidents, and the Uzbek régime's repressive policy towards dissidents." The Grand Chamber held that, by itself, such generalised information was not sufficient even to establish that there was a real risk that the applicants would be subjected to torture in Uzbekistan. The court said this, at paras 71 - 73 (internal cross-reference omitted):
In fact, there was no further evidence to support the applicants' specific allegations. Rather, the other evidence, led on behalf of Turkey, tended to contradict them and the Grand Chamber was unable to conclude that substantial grounds had existed for believing that the applicants faced a real risk of treatment proscribed by Article 3. If generalised information about a country is not enough to establish that there is a real risk that a given individual will be tortured there in the future, it cannot be sufficient, either, to establish that a given statement has been extracted there by torture in the past.
140. As my noble and learned friend, Lord Hope of Craighead, has explained, the Hanseatic Oberlandesgericht in Hamburg adopted a somewhat similar approach in El Motassadeq NJW 2005, 2326. There the court was considering whether article 15 of the Convention against Torture prevented it from using summaries of certain witness statements supplied by the United States. Apparently, the witnesses were members of Al Qa'eda, and the suggestion was that the statements had been obtained by torture. The court asked the German government for information, but the relevant government departments were unable to provide any information from the competent American authorities since it had been supplied to them for intelligence purposes only. In that situation, the court could only evaluate the considerable volume of publicly available material suggesting that suspects had been subjected to torture. What the court was looking for was proof that the three witnesses in question had been tortured. The available material referred to only one of them and, while there was quite a lot of general information about the treatment of other suspected Al Qa'eda members, the court noted that none of the information was based on verifiable, named sources. Even taking account of the fact that the United States authorities had prevented the court from having access to more reliable sources, the court concluded that it had not been proved that torture had been used in the examination of the three witnesses, especially having regard to certain exculpatory elements in their statements.
141. The reasoning of the court, at pp 2329-2330, is instructive. It was under a duty to discover the truth and so the prohibition on the use of evidence had to remain the exception rather than being elevated into the rule. Therefore, the principle "in dubio pro reo" did not apply and the facts justifying the prohibition had to be established to the court's satisfaction. If substantial doubts remained, the possible violation had not been proved and the relevant statement could be used. The court therefore took the view that it was their duty to consider the summaries so as to investigate the facts of the case as fully as possible, but they would take the allegations into account in evaluating the evidence.
142. In my view the same factors as weighed with the Oberlandesgericht should weigh with the House. Once the House has held that statements obtained by torture must be excluded, the special advocates representing suspects such as the appellants are likely to raise the point whenever information appears to come from a country with a poor record on torture. Special advocates can indeed be expected to ask their clients about possible sources of information against them before they see the closed material. At the hearing the special advocates will present information provided by international organisations or derived from books and articles to paint the picture of conditions in the country concerned. But that cannot be a sufficient basis for SIAC to be satisfied that any particular statement has been obtained by torture. More is required.
143. Of course, the suspects themselves will not be able to assist the special advocate in finding more information during the closed hearing. But that is not so great a disadvantage as may appear at first sight, since it is in any event unlikely that they would be able to cast light on the specific circumstances in which a particular statement had been taken by the overseas authorities. So, usually at least, any investigation will have to be done by others. On behalf of the Home Secretary, Mr Burnett QC explained how those in the relevant departments who were preparing a case for a SIAC hearing would sift through the material, on the lookout for anything that might suggest that torture had been used. The Home Secretary accepted that he was under a duty to put any such material before the Commission. With the aid of the relevant intelligence services, doubtless as much as possible will be done. And SIAC itself will wish to take an active role in suggesting possible lines of investigation, just as the Hamburg court did.
144. In the nature of the case and with the best will in the world, there is likely to be a limit to what can be discovered about what went on during an investigation by the authorities in another country. Foreign states can be asked, but cannot be forced, to provide information. How far such requests can be pushed without causing damage to international relations must be a matter for the judgment of the Government and not for SIAC or any court.
145. When everything possible has been done, it may turn out that the matter is left in doubt and that, using their expertise, SIAC cannot be satisfied on the balance of probabilities that the statement in question has been obtained by torture. If so, in my view, SIAC can look at the statement but should bear its doubtful origins in mind when evaluating it. My noble and learned friend, Lord Bingham of Cornhill, proposes, however, that the statement should be excluded whenever SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture. It respectfully appears to me that this would be to replace the true rule, that statements obtained by torture must be excluded, with a significantly different rule, that statements must be excluded unless there is not a real risk that they have been obtained by torture. In effect, the true rule would be inverted. There is no warrant for Lord Bingham's preferred rule in the common law, in article 15 of the Convention against Torture or elsewhere in international law. Moreover, it would run counter to the approach in the two decisions which I have mentioned. The real objection, however, is that, for all the reasons given by the German court, it would be unsound. If adopted, such an approach would ignore the exceptional nature of the exclusion, which requires that the relevant factual basis be established. It would mean that exclusion would be liable to become the rule rather than the exception. It would encourage objections. It would prevent SIAC from relying on statements which were in fact obtained quite properly. It would impede SIAC in its task of discovering the facts that it needs to form its judgment. I would therefore reject that approach and agree with my noble and learned friends, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, that SIAC should ask itself whether it is established, by means of such diligent inquiries into the sources as it is practicable to carry out, and on the balance of probabilities, that the information relied on by the Secretary of State was obtained under torture.
146. The abhorrence felt by civilised nations for the use of torture is amply demonstrated by the material comprehensively set out in the opinion of my noble and learned friend Lord Bingham of Cornhill. While it is regrettably still practised by some states, the condemnation expressed in all of the international instruments to which he has referred is universal. Some of these adjure states to do their utmost to ensure that torture does not take place, while others urge them not to admit in evidence in any proceedings statements obtained by the use of torture.
147. The objections to the admission of evidence obtained by the use of torture are twofold, based, first, on its inherent unreliability and, secondly, on the morality of giving any countenance to the practice. The unreliability of such evidence is notorious: in most cases one cannot tell whether correct information has been wrung out of the victim of torture - which undoubtedly occurred distressingly often in Gestapo interrogations in occupied territories in the Second World War - or whether, as is frequently suspected, the victim has told the torturers what they want to hear in the hope of relieving his suffering. Reliable testimony of the latter comes from Senator John McCain of Arizona, who when tortured in Vietnam to provide the names of the members of his flight squadron, listed to his interrogators the offensive line of the Green Bay Packers football team, in his own words, "knowing that providing them false information was sufficient to suspend the abuse": Newsweek, November 21, 2005, p 50.
148. The moral issue arises most acutely when it is established from other evidence that the information obtained under torture appears in fact to be true. Should the legal system admit it in evidence in legal proceedings (where as a matter of law such hearsay evidence may be admitted) or should it refuse on moral grounds to allow it to be used, despite its apparent reliability? On this issue I entirely agree with your Lordships' conclusion that such evidence should not be admitted, reliable or not, even if the price is the loss of the prospect that some pieces of information relevant to the issue of the activities of the person concerned may be given to the tribunal and relied upon by it in reaching its decision.
149. In so holding I am very conscious of the vital importance in the present state of global terrorism of being able to muster all material information in order to prevent the perpetration of violent acts endangering the lives of our citizens. I agree with the frequently expressed view that this imperative is of extremely high importance. I should emphasise that my conclusion relates only to the process of proof before judicial tribunals such as SIAC and is not intended to affect the very necessary ability of the Secretary of State to use a wide spectrum of material in order to take action to prevent danger to life and property. In the sphere of judicial decision-making there is another imperative of extremely high importance, the duty of states not to give any countenance to the use of torture. Recognising this is in no way to be "soft on torture", a gibe too commonly levelled against those who seek to balance the opposing imperatives.
150. I have to conclude, in agreement with your Lordships, that the duty not to countenance the use of torture by admission of evidence so obtained in judicial proceedings must be regarded as paramount and that to allow its admission would shock the conscience, abuse or degrade the proceedings and involve the state in moral defilement (Lord Bingham's opinion, para 39). In particular, I would agree with the statement of Mr Alvaro Gil-Robles (cited, ibid, para 35) that
In following this course our state will, as Neuberger LJ observed in the Court of Appeal (para 497), retain the moral high ground which an open democratic society enjoys. It will uphold the values encapsulated in the judgment of the Supreme Court of Israel in Public Committee Against Torture in Israel v Israel (1999) 7 BHRC 31, para 39:
151. It then has to be considered by what means it may be possible to give effect in our law to this moral imperative. It was argued on behalf of the appellants that it may be done by accepting that the principles of the United Nations Convention Against Torture ("UNCAT") form part of our law, by resort to article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") or by regarding it as a valid principle of the common law. I do not find it necessary to explore either of the first two avenues, which are not without their difficulties, for I am satisfied that the common law can accommodate the principles involved.
152. Some of your Lordships have expressed the opinion that the common law as it stands would forbid the reception in evidence of any statement obtained by the use of torture: see the opinions of my noble and learned friends Lord Bingham of Cornhill at para 52 and Lord Hope of Craighead at para 112. This view may well be justified historically, but even if it requires some extension of the common law I am of the clear opinion that the principle can be accommodated. We have long ceased to give credence to the fiction that the common law consists of a number of pre-ordained rules which merely require discovery and judicial enunciation. Two centuries ago Lord Kenyon recognised that in being formed from time to time by the wisdom of man it grew and increased from time to time with the wisdom of mankind: R v Lord Rusby (1800) Pea (2) 189 at 192. Sir Frederick Pollock referred in 1890 in his Oxford Lectures, p 111 to the "freshly growing fabric of the common law" and McCardie J spoke in Prager v Blatspiel, Stamp and Heacock Ltd  1 KB 566 at 570 of the demand of an expanding society for an expanding common law. Similarly, in the US Supreme Court 121 years ago Matthews J said in Hurtado v California (1884) 110 US 516 at 531 that
As Peter du Ponceau said of the common law (A Dissertation on the Nature and Extent of the Jurisdiction of the Courts, (1824), Preface):
I am satisfied that, whether or not it has ever been affirmatively declared that the common law declines to allow the admission of evidence obtained by the use of torture, it is quite capable now of embracing such a rule. If that is any extension of the existing common law, it is a modest one, a necessary recognition of the conclusions which should be drawn from long established principles. I accordingly agree with your Lordships that such a rule should be declared to represent the common law. It is only right that this should be done in what Tennyson described as
153. The issue on which I have found it most difficult to reach a satisfactory principled conclusion is that of the approach which SIAC should take to deciding when a statement should be rejected, an issue on which your Lordships have not found it possible to speak with one voice. I have been much exercised by the difficulties inherent in the acceptance of either of the views which have been expressed, but I am conscious of the importance of laying down a clearly defined and workable rule which can be applied by SIAC (or similar bodies which may have to deal with the same problem).
154. Several possible ways of approaching the issue were mooted in the course of argument. Counsel for the appellants advanced the proposition that once the issue has been raised that a statement may have been obtained by the use of torture the onus should rest upon the Secretary of State to prove beyond reasonable doubt that it was not so obtained. I would unhesitatingly reject this proposition as unsustainable. That is confirmed by experience of inordinately long voir dires in terrorist cases in which the admissibility of confessions has been contested. Not only would the process severely disrupt the course of work in SIAC, it would be wholly impossible for the Secretary of State to obtain the evidence of the parade of witnesses commonly called in such voir dires - gaolers, doctors, interviewers etc - to cover in minute detail the time spent in custody by the maker of the statement. The opposite extreme suggested on behalf of the Secretary of State was that the appellant should have to prove on the balance of probabilities that a challenged statement was obtained by the use of torture before it is rejected. The objections in principle and practice to the imposition of such a burden on an appellant are equally conclusive. He may not even know what material has been adduced before SIAC. The special advocate is given the material, but he has little or no means of investigation and is not permitted to disclose the information to the appellant or his solicitors, so has no one from whom to obtain sufficient instructions.
155. I agree with your Lordships that consideration of this question by the conventional approach to the burden of proof is both unhelpful and inappropriate. It seems to me rather to equate to the process described by Lord Bingham in R v Lichniak  UKHL 47,  1 AC 903 at para 16 as "an administrative process requiring [the board] to consider all the available material and form a judgment"; cf Re McClean  NICA 14, para 77, where McCollum LJ said of a similar process that it was "not the establishment of a concrete fact but rather the formulation of an opinion or impression", which was not capable of proof in the manner usually contemplated by the law of evidence. I accordingly agree with the view expressed by Lord Bingham (para 56 of his opinion) and Lord Hope (para 116) that once the appellant has raised in a general way a plausible reason why evidence adduced may have been procured by torture, the onus passes to SIAC to consider the suspicion, investigate it if necessary and so far as practicable and determine by reference to the appropriate test whether the evidence should be admitted and taken into account.
156. What that test should be is the issue on which your Lordships are divided. Lord Bingham is of the opinion (para 56) that 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 it. Lord Hope, on the other hand, has propounded a different test, which he describes as putting the question which SIAC has to decide positively rather than negatively. It has to be established on the balance of probabilities that the particular piece of evidence was obtained by the use of torture; and unless it has in SIAC's judgment been so established, after it has completed any investigation carried out and weighed up the material before it, then it must not reject it on that ground.
157. I have found the choice between these tests the most difficult part of this case. Lord Bingham has cogently described the difficulties facing an appellant before SIAC and the potential injustice which he sees as the consequence if the Hope test is adopted. Lord Hope for his part places some emphasis on the severity of the practical problems which would face SIAC in negativing the use of torture to obtain any given statement, and expresses his concern that it would constitute "an insuperable barrier for those who are doing their honest best to protect us". In support of his view Lord Hope points in particular to the terms of article 15 of UNCAT, which requires states to ensure that any statement "which is established to have been made as a result of torture" shall not be invoked in any proceedings.
158. After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted by SIAC in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases if the members of SIAC use their considerable experience and their discernment wisely in scrutinising the provenance of statements propounded, as I am confident they will. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope's view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out.
159. On this basis I would accordingly allow the appeals and make the order proposed.
LORD BROWN OF EATON-UNDER-HEYWOOD
160. Torture is an unqualified evil. It can never be justified. Rather it must always be punished. So much is not in doubt. It is proclaimed by the Convention against Torture and many other international instruments and now too by section134 of the Criminal Justice Act 1988. But torture may on occasion yield up information capable of saving lives, perhaps many lives, and the question then inescapably arises: what use can be made of this information? Unswerving logic might suggest that no use whatever should be made of it: a revulsion against torture and an anxiety to discourage rather than condone it perhaps dictate that it be ignored: the ticking bomb must be allowed to tick on. But there are powerful countervailing arguments too: torture cannot be undone and the greater public good thus lies in making some use at least of the information obtained, whether to avert public danger or to bring the guilty to justice.