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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html
Cite as: [2004] EWCA Civ 1123, [2005] 1 WLR 414

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Neutral Citation Number: [2004] EWCA Civ 1123
Case No: C2/2003/2796
C2/2004/0064
C2/2004/0067

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE SPECIAL IMMIGRATION APPEALS COMMISSION

Royal Courts of Justice
Strand, London, WC2A 2LL
11 August 2004

B e f o r e :

LORD JUSTICE PILL
LORD JUSTICE LAWS
and
LORD JUSTICE NEUBERGER
Between :

____________________

Between:
A, B, C, D, E, F, G, H, Mahmoud Abu Rideh
Jamal Ajouaou
- and -
Secretary of State for the Home Department

____________________

MR B EMMERSON QC & MR R HUSAIN (for all Appellants except C & D)
Mr M GILL & MISS S HARRISON (for Appellants C & D)
MR I BURNETT QC, MR R TAM, MR J SWIFT,
MISS L GIOVANNETTI, MR T EICKE, MISS C NEENAN (for the Secretary of State for the Home Department)
Hearing dates : 7-13 July 2004

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Pill:

  1. These are appeals, by a number of persons detained pursuant to the certificates, against the refusal of the Special Immigration Appeals Commission ("the Commission") to cancel certificates issued by the Secretary of State for the Home Department ("the Secretary of State") under Section 21 of the Anti-Terrorism, Crime and Security Act 2001 ("the 2001 Act"). Two of the Appellants, Ajouaou and F, had ceased to be detained because they had gone to another country. Their certificates were revoked. They launched fresh appeals from abroad against the original certification. The Commission decided that it had no jurisdiction to hear those appeals, a decision which is challenged in this court.
  2. On 29 October 2003, the Commission, Ouseley J presiding, delivered what has been described as a generic judgment. It included a consideration of general points arising from the legality of the certificates. It also included a detailed summary of the evidence relied on by the parties. A number of individual determinations, one for each of the Appellants, were handed down on the same day. Some bore the name of Ouseley J as Chairman of the Commission and others of Collins J as Chairman. There had been a series of hearings over a period of four months. Collins J presided at some of them and Ouseley J at others.
  3. Apart from the jurisdictional issue, three general issues are raised for the consideration of this court. It is submitted that, on each of them, the Commission has misdirected itself in its approach to the evidence. Mr Emmerson QC, for the Appellants other than C & D, and Mr Gill QC for C & D, submit that if there is a finding in favour of the Appellants on any one of the three issues, remission to the Commission for re-hearing of the cases is required. It is accepted that if the generic points raised fail, there is nothing in the individual cases capable of amounting to a point of law, save as mentioned in the following paragraph.
  4. For the Secretary of State, Mr Burnett QC submitted initially that there could be circumstances in which, in that event, this court could resolve individual cases finally. That submission has not been maintained and, in my view, remission would be necessary to allow the Commission to consider the evidence afresh. A general point is also taken upon the procedure for disclosure of documents by the Respondent and a discrete point is taken, in the case of D, upon the procedure followed before the Commission in his case. A further point is taken in relation to the Refugee Convention.
  5. The statutory background

  6. The United Kingdom is of course party to the European Convention on Human Rights ("the Convention"). Article 5 provides:
  7. 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.

    A series of cases is specified including, of course, "the lawful detention of a person after conviction by a competent court" (5.(1)(a)). Another case, at Article 5.1(f) is:

    "The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

    Article 5 (4) provides:

    "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
  8. Article 6 need not be set out in full. The first sentence provides:
  9. "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

    It has been held in this court that proceedings before the Commission are not criminal proceedings for the purposes of Article 6. The result is that Article 6 (2) and (3) do not apply (A & Ors v Secretary of State for the Home Department [2004] QB 335 per Lord Woolf CJ at p364A).

  10. The effect of Sections 1 and 6 (1) of the Human Rights Act 1998 ("the 1998 Act") is that it is unlawful for a court to act in a way which is incompatible with the Convention rights set out in the above Articles unless section 6(2) applies. That provides:
  11. "(2) Subsection (1) does not apply to an act if –

    (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

    (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

  12. Article 15 permits derogation from obligations under the Convention in limited circumstances:
  13. "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligation under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."

    By virtue of Article 15 (2) no derogation is permissible from several articles, including Article 3.

  14. Following terrorist attacks in the United States on 11 September 2001 the United Kingdom government formed the view that a public emergency, within the meaning of Article 15 (1) of the Convention, existed in the United Kingdom. A proposed derogation from Article 5 (1) of the Convention was notified to the Secretary General of the Council of Europe under Article 15 (3) of the Convention. The Human Rights Act 1998 (Designated Derogation) Order 2001 ("the 2001 Order") was made on 11 November 2001, having been approved by both Houses of Parliament. Section 14(6) of the 1998 Act permits the making of such a derogation order.
  15. The 2001 Order provides, in Article 2:
  16. "The proposed derogation by the United Kingdom from Article 5(1) of the Convention, set out in the Schedule to this Order, is hereby designated for the purposes of the 1998 Act in anticipation of the making by the United Kingdom of the proposed derogation".
  17. The Schedule to the 2001 Order refers to the terrorist acts in the United States on 11 September 2001 and the resolutions of the United Nations Security Council recognising the attacks as a threat to international peace and security. It states that the threat from international terrorism is a continuing one and that the Security Council in its resolution 1373 (2001) "required all states to take measures to prevent the commission of terrorist attacks, including by denying safe haven for those who finance, plan, support or commit terrorist attacks". The Schedule continues:
  18. "There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.

    As a result, a public emergency, within the meaning of Article 15(1) of the Convention, exists in the United Kingdom."

  19. The provisions of the then proposed 2001 Act are summarised and it is stated that the Act "is a measure which is strictly required by the exigencies of the situation". The Act is described as a "temporary provision" and reference is made to its being subject to annual renewal by Parliament.
  20. Existing powers are described, by reference to authority, and the perceived gap which it was thought necessary to fill by legislation:
  21. "In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5(1)(f) as interpreted by the Court in the Chahal [(1996) 23 EHRR 413] case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required.

    Derogation under Article 15 of the Convention

    The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security [Act 2001] may be inconsistent with the obligations under Article 5(1) of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that "action is being taken with a view to deportation" within the meaning of Article 5(1)(f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom's obligations under Article 5(1), the Government has decided to avail itself of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice."

    The reasoning which led to the 2001 Act is discussed in the judgment of Lord Woolf CJ in A & Ors. The assumption underlying the derogation order is that there are persons who cannot lawfully be deported. In Secretary of State for the Home Department v Rehman [2003] 1 AC 153 Lord Hoffmann stated:

    "The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under Article 3. If there is a danger of torture, the government must find some other way of dealing with a threat to national security."
  22. The 2001 Act was duly enacted on 14 December 2001 and the relevant legislation is in Part 4 of the Act, headed "Immigration and Asylum". Section 21 provides, insofar as is material:
  23. 1. The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably-
    (a) believes that the person's presence in the United Kingdom is a risk to national security, and
    (b) suspects that the person is a terrorist.
    2. In subsection (1)(b) "terrorist" means a person who –
    (a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism,
    (b) is a member of or belongs to an international terrorist group, or
    (c) has links with an international terrorist group,
    3. A group is an international terrorist group for the purpose of subsection (2)(b) and (c) if –
    (a) it is subject to the control or influence of persons outside the United Kingdom, and

    (b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.

    (4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.

    (5) In this Part –

    "terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c11), and

    "suspected international terrorist" means a person certified under subsection (1).

    (6) Where the Secretary of State issues a certificate under subsection (1) he shall as soon as is reasonably practicable –

    (a) take reasonable steps to notify the person certified, and

    (b) send a copy of the certificate to the Special Immigration Appeals Commission.

    (7) The Secretary of State may revoke a certificate issued under subsection (1)."
  24. Section 1 of the Terrorism Act 2000 ("the 2000 Act") provides:
  25. "(1) In this Act "terrorism" means the use or threat of action where –
    (a) the action falls within subsection (2),
    (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
    (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
    (2) Action falls within this subsection if it –
    (a)  involves serious violence against a person,
    (b) involves serious damage to property,
    (c) endangers a person's life, other than that of the person committing the action,
    (d) creates a serious risk to the health or safety of the public or a section of the public, or
    (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
    (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied
    (4) In this section –
    (a) "action" includes action outside the United Kingdom,
    (b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
    (c)  a reference to the public includes a reference to the public of a country other than the United Kingdom, and
    (d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
    (4) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

    By virtue of section 23 of the Act, a suspected international terrorist may be detained.

  26. Provision for appeal is made in Section 25 of the 2001 Act:
  27. (1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.
    (2) On an appeal the Commission must cancel the certificate if –
    (a) it considers that there are not reasonable grounds for a belief or suspicion of the kind referred to in Section 21(1)(a) or (b), or
    (b) it considers that for some other reason the certificate should not have been issued.
    (3) If the Commission determines not to cancel a certificate it must dismiss the appeal.
    (4) Where a certificate is cancelled under subsection (2) it shall be treated as never having been issued.
    (5) An appeal against certification may be commenced only-
    (a) within the period of three months beginning with the date on which the certificate is issued, or
    (b) with the leave of the Commission, after the end of that period but before the commencement of the first review under Section 26."
  28. In Section 26, provision is made for periodic review of certificates issued under Section 21. Subject to exceptions, the Commission must hold a first review of each certificate as soon as reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate was issued. Thereafter a review must be made as soon as reasonably practicable after the expiry of the period of three months from the date on which the first review is finally determined. In Section 26 (4) provision is made for reviews during the above periods. Section 26(5) and (6) provides:
  29. "(5) On a review the Commission –

    (a) must cancel the certificate if it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), and

    (b) otherwise, may not make any order (save as to leave to appeal).

    (6) A certificate cancelled by order of the Commission under subsection (5) ceases to have effect at the end of the day on which the order is made."

  30. Section 27 provides that section 7 of the Special Immigration Appeals Commission Act 1997 ("the 1997 Act") shall apply in relation to an appeal or review under Section 25 or 26 of the 2001 Act.
  31. Section 7 (1) of the 1997 Act provides:
  32. "Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination."

    Leave is required (Section 7(2)). By virtue of Section 7(3)(a), the Court of Appeal is the appropriate appeal court "in relation to a determination by the Commission in England and Wales". Section 1 of the 1997 Act, as amended by Section 35 of the 2001 Act, provides that "the Commission shall be a superior court of record".

  33. Section 29 of the 2001 Act provides that Sections 21 and 23 of the Act shall expire "at the end of the period of 15 months beginning with the day on which the Act is passed" but subject to a power in the Secretary of State to repeal the sections and also to make an order providing that the sections shall continue in force for a period not exceeding one year. Subject to a circumscribed urgency provision, such an order may not be made unless a draft has been laid before and approved by resolution of each House of Parliament. It is provided that sections 21 and 23 shall in any event cease to have effect at the end of 10 November 2006. Monitoring of the working of Part 4 of the Act has also been instituted, Lord Carlile having been given that role.
  34. Protection is also provided by the Tribunal set up under the Regulation of Investigatory Powers Act 2000 to scrutinise the investigatory powers and functions of the Intelligence Services.
  35. Rule 44(3) of the Special Immigration Appeals Commission (Procedure) Rules 2003 ("the 2003 Rules"), made under the 1997 Act, provides that:
  36. "The Commission may receive evidence that would not be admissible in a court of law."
  37. The lawfulness of the 2001 Order was challenged in A & Ors. The Court of Appeal, reversing in certain respects the Commission to whom application had first been made, held that the derogation was lawful. Lord Woolf CJ stated, at paragraph 27:
  38. "… the provisions of Part 4 purport to do no more than reverse the legal position which existed subsequent to the decision in Chahal 23 EHRR 413. In other words they allow a suspected international terrorist who does not have a right of abode, alone, to be detained even though for the time being it is not possible to deport him. In relation to those who are not suspected international terrorists who are liable to be deported, but cannot be deported, the position remains as it was prior to the 2001 Act".
  39. At paragraph 31, Lord Woolf stated that "the derogation is limited to extending the period of time during which the detention can continue: that is the Chahal point". Lord Woolf noted, at paragraph 42, the undertaking given by the Attorney-General that "Part 4 would be only used for the emergency which was the subject of the derogation" and added that "the powers contained in Part 4 could only be used to the extent that they were covered by the Order, otherwise they would fall foul of Article 5". At paragraph 44, Lord Woolf referred to what is required to justify a derogation:
  40. "The extent of the threat, required as a pre-condition to derogation, is more extensive than that required by the interests of national security. It is a public emergency threatening the life of the nation. It is the broader formulation of national security which was considered in Rehman [2003 1 AC 153]".
  41. An appeal to the House of Lords against the decision in A & Ors is due to be heard on 4 October 2004.
  42. When considering the statutory framework, it is important to bear in mind the fundamental nature of "the right to liberty and security of person". Indefinite detention, to be lawful, requires the clearest justification and, in these cases, there is no conviction by a competent court to justify it. It must also be borne in mind that the United Nations Security Council has resolved under Chapter VII of the United Nations Charter that there is a threat to international peace and security and in Security Council resolution 1373 has required all states to take comprehensive measures. These include:
  43. b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;

    c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;

    d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;

    f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings;

    Further, states are called upon to:

    a) Find ways of intensifying and accelerating the exchange of operational information, especially regarding actions or movements of terrorist persons or networks; forged or falsified travel documents; traffic in arms, explosives or sensitive materials; use of communications technologies by terrorist groups; and the threat posed by the possession of weapons of mass destruction by terrorist groups;

    b) Exchange information in accordance with international and domestic law and cooperate on administrative and judicial matters to prevent the commission of terrorist acts;

    c) Cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts;

  44. To take such steps is an international legal obligation of the United Kingdom government. The Government's view that a public emergency, threatening the life of the nation within the meaning of Article 15(1) of the Convention, exists in the United Kingdom, is consistent with the Security Council view of the situation.
  45. Insufficient scrutiny

  46. The Appellants' first submission, and the oral submission made by Mr Gill QC, is that the Commission erred in affording an insufficient standard of scrutiny for the certification and detention of the Appellants. Having regard to the fundamental importance of the right to liberty and security of person and to the prospect of indefinite detention inherent in Part 4 of the 2001 Act, a very high standard is required to be applied when scrutinising the issue of a certificate under Section 21 of the Act, it is submitted.
  47. The test to be applied by the Secretary of State in deciding whether to issue a certificate is that provided in Section 21(1) of the 2001 Act.
  48. The subsection requires that the Secretary of State has a belief (21(1)(a)), and a suspicion (21(1)(b)). A reasonable belief can exist only on the basis of information received and the existence of a reasonable suspicion depends on an assessment of that information. A reasonable belief may be held on the basis of the receipt of information which has not been proved in the ordinary sense of that word. Suspicion may reasonably arise from unproved facts.
  49. This court must make an assessment of whether the criteria in Section 21(1) were in the circumstances satisfied. While the approach adopted by the Commission can be expected to be a helpful guide, this court must form its own judgment and not merely review the manner in which the Commission made an assessment.
  50. In O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, the House of Lords considered legislation under which a constable could arrest without warrant a person whom he had reasonable grounds of suspecting to be, amongst other things, a person who was concerned in the commission, preparation or instigation of certain acts of terrorism. That test required reasonable grounds for suspicion but not the reasonable belief also required by the present test. As to reasonable suspicion, Lord Hope of Craighead stated, at page 297G and following:
  51. "It is now commonplace for Parliament to enable powers which may interfere with the liberty of the person to be exercised without warrant where the person who exercises these powers has reasonable ground for suspecting that the person against whom they are to be exercised has committed or is committing an offence. The protection of the subject lies in the nature of the test which has to be applied in order to determine whether the requirement that there be reasonable grounds for the suspicion is satisfied.

    My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

    …The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances."

  52. In Rehman, the issue was as to when the Secretary of State could make a deportation order under Section 3(5)(b) of the Immigration Act 1971 on the ground that it would be conducive to the public good in the interests of national security. Lord Slynn of Hadley stated, at paragraph 22:
  53. "22. Here the liberty of the person and the opportunity of his family to remain in this country is at stake, and when specific acts which have already occurred are relied on, fairness requires that they should be proved to the civil standard of proof. But that is not the whole exercise. The Secretary of State, in deciding whether it is conducive to the public good that a person should be deported, is entitled to have regard to all the information in his possession about the actual and potential activities and the connections of the person concerned. He is entitled to have regard to precautionary and preventative principles rather than to wait until directly harmful activities have taken place, the individual in the meantime remaining in this country. In doing so he is not merely finding facts but forming an executive judgment or assessment. There must be material on which proportionately and reasonably he can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and his conclusion is justified, to a "high civil degree of probability". Establishing a degree of probability does not seem relevant to the reaching of a conclusion on whether there should be a deportation for the public good.

    23. Contrary to Mr Kadri's argument this approach is not confusing proof of facts with the exercise of discretion – specific acts must be proved, and an assessment made of the whole picture and then the discretion exercised as to whether there should be a decision to deport and a deportation order made."
  54. Lord Hoffmann stated, at paragraph 56:
  55. "In any case, I agree with the Court of Appeal that the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant's deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interests at stake and the serious consequences of deportation for the deportee."
  56. Mr Gill submits that the underlying principle to be applied in approaching Section 21(1) is the principle that the Secretary of State must not act in an arbitrary way. There are different levels of suspicion and, in the present context, a high level is required, it is submitted. Substantial investigation is required before a suspicion can be a reasonable suspicion.
  57. The Commission accepted, at paragraph 46, that "the extent, nature, independence and reliability of the evidence are relevant. The extent to which obvious lines of enquiry, which could have been followed, have been ignored is relevant…..It is all the circumstances which are relevant". The Commission accepted, at paragraph 48, that the evidence "does have to be scrutinised carefully and its weaknesses and gaps examined to see if it does provide such grounds [the statutory grounds] or whether suspicion exists or survives because of a failure to investigate matters in obvious ways which would have cast a clearer light, one way or the other, on the point."
  58. Paragraph 49, the Commission stated:
  59. "What weight is attached to any particular piece of evidence is a matter for consideration in any particular case in the light of all the evidence, viewed as a whole and not as isolated pieces. … Whilst the absence of arrest on criminal charges or interview can be an indicator as to the existence of reasonable grounds, it must be remembered both what material is admissible for these purposes and inadmissible or not usable for criminal trial purposes, and the nature of the matters in respect of which reasonable grounds for suspicion or belief has to be shown."

     

  60. At paragraph 51, the Commission stated,
  61. "… By the nature of their habitual tasks they [the police or the Security Services] deal with suspicion and risk rather than proof. They acknowledge "that there may be a gap between a seemingly suspicious activity and it giving reasonable grounds for suspicion in this context which cannot be filled by inference or assessment where it could verily be filled by further investigation".
  62. At paragraph 58, the Commission stated,
  63. "… It would equally make a nonsense of the Act, in relation to the grounds for belief that an Appellant was a risk to National Security, to require specific factual allegations to be proved on a balance of probabilities before account could be taken of them in a risk assessment or before they could afford reasonable grounds for the necessary belief."
  64. Dealing with the role of the Secretary of State's views and the concept of deference, the Commission stated, at paragraph 63:
  65. "The judiciary had to be willing to put an appropriate degree of trust in the ability of Ministers who are publicly accountable to satisfy themselves as to the integrity and professionalism of the Security Service."
  66. At paragraph 61, the Commission stated:
  67. "It is plain that the Commission has to be satisfied as to the existence of reasonable grounds for suspicion and belief for the section 25 appeals by taking account of all matters even if not proved on the balance of probability; the Rehman decision is of no assistance to the Appellants in that context."
  68. At paragraph 71, the Commission stated:
  69. "It is our task under Section 25 to examine the evidence relied on by the Secretary of State and to test whether it affords us reasonable grounds for the relevant belief and suspicion; it is not a demanding standard for the Secretary of State to meet. … The Commission must be careful to ensure that such deference or recognition of expertise as is appropriate does not mean that it forswears its own obligation to be satisfied that there are indeed reasonable grounds for the necessary belief and suspicion."

    In Rehman it was accepted that the Secretary of State's assessment of whether, on a given state of facts, a person's presence is a risk to national security is entitled to considerable deference (Lord Slynn at paragraph 26, Lord Hoffmann at paragraph 54).

  70. Mr Gill submits that the Commission have applied too low a test. They have relieved the Respondent of any burden of establishing facts underlying the suspicions and beliefs. They have regarded a speculative state of mind of conjecture or surmise as sufficient. A rigorous, disciplined and structured approach is required of the Commission, it is submitted. Otherwise, the Secretary of State has too great a room for manoeuvre. To place a limit on the power of the executive to deprive a person of liberty, an analysis of the reasonableness of the Secretary of State's conduct is required. While citing it, the Commission failed to apply the principle stated by the European Court of Human Rights (ECtHR) in Murray v United Kingdom [1994] 19 EHRR 193, paragraph 56, that "the level of deprivation of liberty at risk may also be material to the level of suspicion required". The highest level of suspicion was required and exacting standards should have been applied, it is submitted. An approach culminating in the statement that "it is not a demanding standard for the Secretary of State to meet" was in error.
  71. It is the impossibility of removing people lawfully which creates the need for the derogation and the 2001 Act. What would otherwise be a breach of Article 5 is rendered lawful by Part 4 of the 2001 Act but, in each case, it must be shown that certification is a strictly necessary measure by way of response to the emergency threatening the life of the nation. That confirms the need for extremely anxious scrutiny when Section 21 powers are exercised, it is submitted.
  72. The task of the Commission is to assess whether it considers that there are or are not reasonable grounds for a belief or suspicion of the kind referred to in Section 21(1)(a) or (b) (Section 25(2) of the 2001 Act). It is not necessary for present purposes to consider the effect of Section 25(2)(b), which empowers the Commission to discharge the certificate on grounds other than that reasonable grounds for a belief or suspicion are not present, save to recall the additional power to discharge conferred on the Commission.
  73. In M v Secretary of State for the Home Department [2004] EWCA Civ 324, the Secretary of State sought to challenge a finding of the Commission that the issue of a certificate was not justified. Lord Woolf CJ analysed the task of the Commission:
  74. "15. SIAC's task is not to review or 'second-guess' the decision of the Secretary of State but to come to its own judgment in respect of the issue identified in s 25 of the 2001 Act. The task of this court on an appeal is limited to questions of law. However, the power of this court to determine questions of law enables the court (among other grounds) to set aside a decision of SIAC if that decision is unsupported by any evidence so that it is perverse.
    16. SIAC is required to come to its decision as to whether or not reasonable grounds exist for the Secretary of State's belief or suspicion. Use of the word 'reasonable' means that SIAC has to come to an objective judgment. The objective judgment has however to be reached against all the circumstances in which the judgment is made. There has to be taken into account the danger to the public which can result from a person who should be detained not being detained. There are also to be taken into account the consequences to the person who has been detained. To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual's rights. Although, therefore, the test is an objective one, it is also one which involves a value judgment as to what is properly to be considered reasonable in those circumstances. "
  75. Having considered the facts, Lord Woolf stated, at paragraph 33:
  76. "What is critical was the value judgment which SIAC had to make as to whether there was reasonable ground for the belief or suspicion required. As to this question SIAC was the body qualified by experience to make a judgment. SIAC came to a judgment adverse to the Secretary of State. It has not been shown that this decision was one to which SIAC was not entitled to come because of the evidence, or that it was perverse, or that there was any failure to take into account any relevant consideration. It was therefore not defective in law."

    The Commission's approach was then approved. However, it is submitted that the Commission in the generic judgment failed to apply that test when stating, at paragraph 40:

    "It is a possibility that the Commission could conclude that there were reasonable grounds for the suspicion or belief without itself holding the requisite suspicion or belief. But its task under Section 25 is to consider the reasonableness of the grounds rather than to cancel a certificate if, notwithstanding the reasonableness of the grounds, it were unable subjectively to entertain the suspicion or hold the belief to which the statute refers. If such a situation were to arise, the Commission will make that clear."

    The situation did not in the event arise.

  77. The Commission did not have the advantage of the decision of this court in M, where its approach was generally approved. I do not consider the approach in paragraph 40 to be inconsistent with M. The Commission was correct to raise the possibility that a certificate need not be cancelled if the Commission was unable itself to entertain the relevant suspicion or hold the relevant belief while at the same time, making the appropriate value judgment, holding that there were reasonable grounds for the suspicion and belief.
  78. Reading the relevant part of the judgment as a whole, I am not persuaded that the Commission applied the wrong test under Section 25(2)(a) or in its consideration of Section 21(1) powers. The members approached the evidence on the correct basis. I regard the expression "not a demanding standard" in paragraph 71 as unfortunate but in using it, the Commission were in my view, making a comparison with standards by which facts are proved in judicial proceedings and were not departing from the statutory test. They wished to emphasise that the standard is a different one from that applied in ordinary litigation which is routinely concerned with finding facts. The context is different but, as Lord Hoffmann stated in Rehman: "it is a question of evaluation and judgment" and "the concept of a standard of proof is not particularly helpful". All the circumstances must be considered and, while in some situations specific acts must be proved, what matters is the "assessment made of the whole picture".
  79. In their conclusions, at paragraph 253, the Commission stated:
  80. "Individual pieces [of intelligence or assessment] in isolation might be said to show little or nothing but should not then individually be laid aside and ignored. They should be looked at in the light of all the evidence; the individual pieces may then be seen to be part of a wider picture or to show a consistent pattern of significance. Likewise, we accept that a close and penetrating analysis of the material including the assessments and inferences is required, as the Appellants' advocates submitted".
  81. The overall fairness of proceedings before the Commission was considered by Lord Woolf CJ in A & Ors, at paragraph 57:
  82. "The proceedings before the Commission involve departures from some of the requirements of Article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in Article 6, is given due weight, I am satisfied there is no contravention of that article."
  83. I find no error of approach.
  84. The effect of the derogation

  85. The second submission, also made on behalf of the Appellants by Mr Gill, is that the Commission erred by misunderstanding the scope of the derogation achieved by the 2001 Order. It drew the scope of the derogation too widely so as to render persons liable to certification who were not within the scope of the derogation.
  86. The scope of the derogation was considered in this court in A and Ors. I have cited a passage from the judgment of Lord Woolf CJ. Both Brooke LJ and Chadwick LJ expressed agreement with Lord Woolf that the Secretary of State may not lawfully issue a certificate under Section 21 unless empowered to do so under the terms of the derogation. The Appellants rely on the further statement of Brooke LJ, at paragraph 98:
  87. "This [derogation] refers in terms to the threat to international peace and security identified by the terrorist attacks on 11 September. In other words it identifies the threat posed by Al Qa'eda and its associated networks (and no-one else), and the Secretary of State has put the matter beyond doubt by the way his authorised witness explained to the Commission the factors that lead him to identify a public emergency threatening the life of the nation".
  88. The point arises because, under Section 21(1) of the 2001 Act, the Secretary of State must reasonably suspect, if he is to issue a certificate, that the person is a "terrorist". Terrorist is defined in the Section 21(2), already cited. The certifications in this case were under 21(2)(b) and (c) so that the persons certified are claimed to be either a member of or belonging to a international terrorist group (as defined in Section 21(3)), or has links with such a group. It is submitted that the Commission have interpreted the word "group" in Section 21 too widely. The point is taken in a general way and there has been very little reference to the evidence about specific groups, which was analysed in great detail by the Commission.
  89. The Commission referred, at paragraph 87, to the submissions before it:
  90. "The terms of derogation and the nature of the public emergency to which it relates are important because of contentions on behalf of the Appellants that their activities, however they might otherwise be categorised for the purposes of the section 21, fell outside the scope of the derogation and that emergency. They also were concerned at the number of links relied on in the chain to establish a connection to Al Qa'eda."
  91. Mr Gill submits that it is necessary to show that there is some factor by reference to which a set of persons associate or combine, what brings them together as a group and what defines the character of the group. The combining factor must, it is submitted, at least be the assistance or support they render in respect of activities comprising part of Al Qa'eda's terrorist agenda. A significant level of activity is contemplated and a group having a common aim or policy. It is submitted that the Commission's analysis lacks precision and does not avoid the risk of guilt by association.
  92. The Commission referred, at paragraph 87, to the evidence at the derogation hearings:
  93. "Al Qa'eda and its associates are loosely knit, lack formal organisational structures and have links with other active terrorist organisations".

    The Commission noted that the Respondent's evidence before them:

    "referred regularly to the link to Al Qa'eda being created not just by national groups but by a loosely co-ordinated series of overlapping networks".

    It was submitted to the Commission that the derogation covered individuals in the United Kingdom who are members of Al Qa'eda or its associated networks or are linked to members of such organisations or groups and are by reason of that fact part of the threat to the United Kingdom which comprises the current public emergency. A number of groups were identified. "

  94. The Commission concluded, at paragraph 99:
  95. "We accept the general schematic description of Al Qa'eda and its associated networks; it was borne out by all the evidence which we heard and was not the subject of serious debate. Terrorist groups have historically worked in small cells, often disconnected from each other with deliberate cut-outs in the chain of command, with direct communication at operational level to the leadership hierarchy discouraged. We deal later with the specific groups referred to because their relationship, if any, to Al Qa'eda was the subject of dispute. But we accept [Mr Williams' QC, then leading counsel for the Respondent] submission as to what connections and with whom had to be shown for purposes of the derogation and in very summary form his submission as to why, if such connections are shown, it shows the link to the public emergency and why the threat is increased. Of course, Mr Williams is using the word "link" in its specific statutory meaning. Mr Williams submitted that it would be an unwarranted restriction on the scope of the emergency to require the group for which an Appellant was a member or to which he was "linked" in the statutory sense to be a supporter of the core aims of Al Qa'eda as expressed in the February 1998 fatwa. That was one core aim or statement of intent and means but not the only objective. Its objectives were a combination of the global and national, the latter being part of and assisting the former and vice versa. It was not necessary to show that an individual supported that fatwa in order to show, to the requisite standard of proof, that he was both an international terrorist and connected to the public emergency. "
  96. Following detailed analysis of submissions made on behalf of the Appellants, the Commission stated, at paragraph 109, that "it is necessary to understand the overlap between the various groups and individuals, and how they connect to Al Qa'eda, to realise why the derogation is expressed as it is".
  97. Following further analysis, the Commission concluded, at paragraph 110:
  98. "But, in our judgment, if those groups also support Al Qa'eda for a part of their agenda and an individual supports them nonetheless, it is a legitimate inference that he is supporting and assisting Al Qa'eda through his support for that group, whatever his own views may be on the indiscriminate killing of civilians, in the absence of evidence showing that the group has compartmentalised operations and is not assisted in other activities by the support given for e.g. self defence purposes. Indeed the Act requires only that there be support or assistance for an international terrorist group. The derogation requires that there be a link between that group and Al Qa'eda. It is sufficient that there is that indirect connection to Al Qa'eda. It is not necessary that the assistance be in connection with the Al Qa'eda facet. A group can be strengthened through support in one area and thus better able to carry out activities in another in a number of ways: publicity for fund raising and recruitment, the diversion of resources supplied for one purpose to another, the dual use of resources, the ability to retain resources which would otherwise have to be spent for another purpose. It is also unwise to suppose that there is a readily discernible and closely observed distinction between one activity and another within a terrorist group with many agendas. They all feed off each other. The same person who does fundraising or false documentation for one purpose is able to do it for other purposes; accommodation for one can be used for another; someone radicalised through jihadic experiences and indoctrination in Chechnya may see the violent global jihad as a next step. There is room for debate as to what has been called unwitting assistance which we deal with later."
  99. The Commission recognised, in paragraph 112, the limitation to be placed upon its approach:
  100. "We do recognise that it is possible to construct connections, which by a number of links in a chain, can reach Al Qa'eda but without having any sensible connection to any threat or any real substance. But it is unrealistic, given the lack of formal structure to Al Qa'eda, to its various associated groups or networks, or to the links between them, to define the connection in a way which suggests that no more than one remove or link is permissible in order for the link to the public emergency, derived as it is from the activities of Al Qa'eda and its associates, to be made. Any more analysis depends on the facts of the cases."
  101. Following that detailed analysis, the Commission concluded:
  102. "The overlapping groups or cells:

    302. We accept the broad assessment by the Respondent that there is a network, largely of North African extremists, in this country which makes up a number of groups or cells with overlapping members or supporters. They usually have origins in groups which had or may still have a national agenda, but whether that originating group does or does not have a national agenda, whether or not is has direct Al Qa'eda links, whether or not the factions are at war in the country of origin, such as the GIA and GSPC in Algeria, those individuals now work together here. They co-operate in order to pursue at least in part an anti-West terrorist agenda. Those less formal groups are connected back to Al Qa'eda, either through the group from which they came which is part of what can be described as the Al Qa'eda network, or from other extremist individuals connected to Al Qa'eda who can be described as part of Al Qa'eda itself or associated with it. They are at least influenced from outside the United Kingdom. These informal, ad-hoc, overlapping networks, cells or groups constitute "groups" for the purpose of the 2001 Act.
    303. It does not matter whether the individuals support all the means of war or terror urged by Al Qa'eda, including the deliberate mass killing of civilians by suicide actions. They can still support or assist a group connected with Al Qa'eda and in some way increase its capability for launching terrorist operations of whatever sort which threaten the United Kingdom."

    The "international terrorist group" contemplated by Section 21 is Al Qa'eda or a group associated with it, provided it is recognised that the very nature of the groups associated with Al Qa'eda encompasses informal, even ad hoc, groups which can as easily or better be described as overlapping, loosely co-ordinated groupings or networks. Their purpose may overlap in part but not in whole, and they may not agree with all the means which another would use; but that does not prevent them being part of the threat to the life of the nation as a matter of principle or law.

  103. I find no error of law in the approach of the Commission to this issue. The Commission has considered in detail whether the certifications come within the scope of the derogation, following the approach indicated in A and Ors. They have considered and applied each of the relevant words in Section 21 including 'group' and 'links' and applied them correctly. They have acknowledged the requirements of Section 21(4) and acknowledged and kept in mind the need to avoid guilt by association. I agree with the Commission (paragraph 96) that when Brooke LJ, in A and Ors used the expression "and no-one else" he was only confirming that Part 4 of the Act could not be used to detain foreign nationals belonging to other terrorist organisations, such as ETA or the Real IRA.
  104. The Commission correctly stated that, beyond their general statements, analysis depended on the generic evidence and the facts of the individual cases. It depended on an evaluation of evidence on the basis of the statutory definitions. It has not been suggested, upon the hearing of this appeal, that such an evaluation has not taken place or that any lack of careful analysis has affected the outcome in particular cases.
  105. Article 3 and the admissibility of evidence

    The issue

  106. This issue first arose before the Commission during the appeal of E, the fifth case to be heard. It arose during the cross-examination of witness A called by the Secretary of State. The submission was then made that the Commission should decline to consider any evidence unless it was shown not to have come into existence as a result of a breach of Article 3 and the submission was extended to cover all the Appellants. Both Mr Emmerson QC and Mr Gill QC have made submissions on the issue in this Court, Mr Emmerson taking the lead.
  107. It is necessary to consider the basis upon which this issue has been considered by the Court. There was no finding by the Commission of torture or other breach of Article 3. Because of their conclusion that the manner in which evidence was obtained went not to admissibility but only to weight, the Commission did not express conclusions as to what, if any, of the material before it emerged as a result of conduct contrary to Article 3 of the Convention. The court can proceed only on the basis that the Commission may have been influenced by such material.
  108. In written submissions delivered after the hearing, Mr Burnett QC, for the Secretary of State, has argued that, on the facts of the present appeals, the issue of principle in relation to Article 3 material does not arise. The case was not however put on that basis, Mr Emmerson putting the point, without objection, that there was material before the Commission which caused the issue of principle to arise and it is not known whether the Commission gave weight to it. Moreover, Mr Burnett concedes that, if there is any such information, it has been evaluated only as part of a broader picture based on information obtained from a variety of sources. On that basis, if some of the material is to be excluded, a re-appraisal of the remaining material is required.
  109. The court of course would prefer to deal with established facts than with hypotheses but, in the circumstances, it is not unreasonable to be asked to give a ruling on the issue of admissibility. The court cannot sensibly make its own findings of fact on the bulk of material before the Commission and is not invited to do so. What Mr Emmerson in substance seeks is a declaration that the Commission are not to have regard to evidence which was or may have been obtained in breach of Article 3 of the Convention. Alternatively, to adopt the more limited submission put consistently at the hearing, he seeks a finding that there is an exclusionary rule prohibiting the admission of statements made by a person who is not a party to the proceedings as a result of torture inflicted by the agents of a foreign state.
  110. Article 3 of the Convention provides:
  111. "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
  112. It is not suggested that the Appellants have been tortured. They were not even interviewed before certificates were issued. The submission is that, in performing his duty under Section 21 of the 2001 Act, the Secretary of State may have relied on material, in statements from witnesses, which had been obtained by authorities in other jurisdictions using methods which involved breaches of Article 3. In performing its task under Section 25(2), the Commission should ensure, it is submitted, that, when issuing a certificate under Section 21, the Respondent has not relied on material so obtained.
  113. The routes to the exclusionary rule and UNCAT

  114. The exclusionary rule, it is submitted, arises by one of three routes. Put at this stage in summary form they are: the common law, Article 6 of the Convention and the need to construe the 2003 Rules consistently with the Convention. In each case the law is to be informed by Article 15 of the United Nations Convention Against Torture 1984 ("UNCAT"), to which the United Kingdom is a party.
  115. Article 1(1) of UNCAT defines torture:
  116. "For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
  117. Article 15 provides:
  118. "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."
  119. Article 16 provides:
  120. "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment."

    Thus Article 16 introduces the forms of ill-treatment other than torture mentioned in Article 3 of the Convention but does not apply to them the exclusionary provision applied to torture in Article 15.

  121. The Articles mentioned in Article 16 require states to include comprehensive measures in their judicial and administrative systems. Article 11 provides, for example, that states "shall keep under systematic review interrogation rules, instructions, methods and practices….. with a view to preventing any cases of torture".
  122. Article 4 requires each state party to ensure that all acts of torture are offences under its criminal law. Effect was given to that obligation in England and Wales by Section 134 of the Criminal Justice Act 1988. A defence is provided in subsection (4). "It shall be a defence for a person charged with an offence under the section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct."
  123. On this aspect of the case, there is a great deal more material before this court than was before the Commission and the submissions have been fuller and more elaborate. The Commission accepted that while UNCAT is not part of domestic law "we should not do anything which contravenes it unless compelled by domestic law to do so". The Commission stated that if there is material which shows that torture or other breaches of Article 3 may have been used to obtain the information relied on, the material must be considered, "since, at the very least, it will bear on the proper weight to be given to the information". The Commission concluded, at paragraph 84:
  124. "We are, of course, not bound by any rules of evidence, but must act fairly in considering the appeal of each Appellant. But the means by which information is obtained goes to its reliability and weight and not to its admissibility, and that is how we have considered it".
  125. The Appellants submit that the Commission was in error, at paragraphs 83 and 84, in failing to conclude that information obtained from a third party by methods which breached Article 3 is inadmissible before it. It is submitted, first, that an exclusionary rule emerges from the common law, which should reach out to embrace the point. Secondly, it emerges from an application of Article 6, either in combination with or as an extension of the common law, incorporating as it now does the concepts expressed in Article 6 and the jurisprudence under it. If, contrary to that submission, the rule does not so arise, it arises when those provisions are applied and construed in the light of Article 15 of UNCAT. The exclusionary rule in Article 15 of UNCAT is relevant to all three routes, it is submitted, and the common law and Article 6 must be interpreted consistently with UNCAT. The third route is that, having regard to the international obligation of the United Kingdom under Article 15(1) of the Convention not to take measures under the Article which are inconsistent with its other obligations under international law, domestic law must take account of Article 15 of UNCAT if the derogation relied on is to be lawful. The 2003 Rules must be construed accordingly.
  126. A fourth possibility was raised. When dealing with enquiries made by members of the court, having completed his submissions, Mr Emmerson on the second morning of the hearing referred to Article 15 of UNCAT as being part of customary international law and therefore a common law obligation. This submission had not been made before the Commission, in the grounds of appeal or in the skeleton argument. Authority was requested but not then supplied. Save that Mr Burnett reserved his position, no further reference was made to the point until Mr Burnett had completed his submissions for the Respondent. In his reply, Mr Emmerson sought leave to make the submission. Mr Burnett opposed the application, submitting that the submission raised very wide issues which could not appropriately be raised at such a late stage.
  127. Mr Emmerson agreed that the submission would involve considering four propositions: first, whether the rule that evidence obtained by torture was inadmissible in any judicial proceedings was in breach of customary international law, second, by what route it became part of customary international law, third, the extent to which and how customary international law finds its way into the common law and fourth, whether rule 44 of the 2003 Rules had the effect of disapplying it. Mr Emmerson frankly accepted that the issue raised entirely fresh arguments and material and that no detailed analysis had been prepared.
  128. Having considered the submissions, the court refused the application. It was too late to make the submission. In any event, in the context of the case and the points already taken, the Court was inclined to the view, and so was Mr Emmerson, that any new window it might open was a narrow one.
  129. Routes one and two

  130. The Article 6 jurisprudence is so interwoven with that of the common law that, in this context, I do not see the two routes as essentially separate and distinct, though Section 2(1) of the 1998 Act requires the Court only to "take into account" ECtHR decisions (Lord Hoffmann in R v Lyons & Ors [2003] 1 AC 976 at para.46). The ECtHR has also recognised that the admissibility of evidence is primarily for national law. In Ferrantelli and Santangelo v Italy [1996] 23 EHRR 288, the Court stated, at paragraph 48:
  131. "It [the Court] recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair."

    Mr Emmerson accepts that the application of Article 6 does not involve a general exclusionary rule, but cites examples of situations in which an application of Article 6 has been held to require exclusions.

  132. Mr Emmerson submits that there is a principle binding on the Commission requiring it to exclude altogether from its consideration of the evidence the product of interviews of third parties where the material had in fact been obtained by torture. Sufficient material as to possible torture had been brought to the attention of the Commission, it is submitted. Its production placed a burden on the Commission to consider the issue and to exclude from its consideration evidence that may have been obtained by torture. Even if there is no doubt about its reliability, it should be excluded. No judicial body can lend authority to evidence obtained by torture by admitting it. The rule applies whether the torture is by a United Kingdom public official or an official of another state and it is immaterial whether it is a party involved in the litigation or a third party who is tortured. The Commission, and any other judicial body, should demonstrate its repugnance to the means used to produce evidence by refusing to admit it.
  133. Mr Burnett submits that the 2001 Act should be construed in accordance with its purpose. It was enacted because of a threat to the life of the nation and as a reaction to a new type of terrorist. The security of the United Kingdom and the life and welfare of its inhabitants was at stake. As Brooke LJ stated in A & Ors, at paragraph 89, the Court is concerned "not only with matters of personal liberty but with matters of life or death of possibly thousands of people". It is accepted that there is a tension between the two concerns. The Court is invited, when resolving the three legal issues before it, to consider in this context the nature of the task undertaken by the Security Services. Their skill is in evaluating and assessing information obtained from numerous different and disparate sources. The Court is also asked to bear in mind the importance of international co-operation in the fight against terrorism. The sharing of information between law enforcement agencies in different states is vital. A requirement to ascertain how information had been obtained by another state would damage international relationships and impair the free flow of information. The Convention is a pragmatic instrument, it is submitted, and should be applied realistically.
  134. The common law

  135. Reliance is placed on the common law rule as to the exclusion of confessions in criminal trials and its rationale. It is accepted that there is no authority applying the common law rule to the interview of third parties but in principle it should apply, Mr Emmerson submits. To rely on the tainted confession of a third party is no less an affront to the Court.
  136. Mr Emmerson's starting point is the longstanding common law rule classically stated in Ibrahim v The King [1914] AC 599 at 609. Giving the judgment of the Judicial Committee of the Privy Council, Lord Sumner stated:
  137. "It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale."
  138. The old common law rule is now included within the scope of the statutory rule in Section 76 of the Police and Criminal Evidence Act 1984 ("the 1984 Act"). The section provides:
  139. "(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

    (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –

    (a) by oppression of the person who made it; or

    (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."

    The section did not prevent a co-accused from introducing evidence of a confession obtained in breach of subsection (1) but section 76A, not yet in force, severely restricts the right of a co-accused to take that action.

  140. The point arose at the hearing as to whether the common law rule was based on possible lack of reliability alone (Mr Burnett) or whether also on the abhorrence of the law to confessions obtained by way of statements which were not voluntary (Mr Emmerson). In my judgment, the second has been a major factor.
  141. The point was considered by Lord Hailsham of St Marylebone in DPP v Ping Lin [1976] AC 574 at 600. Having cited the rule and its history, Lord Hailsham stated, at page 600:
  142. "By the judiciary, though it ought not to be extended, it must by no means be whittled down. It bears, it is true, all the marks of its origin at a time when the savage code of the eighteenth century was in full force. At that time almost every serious crime was punishable by death or transportation. The law enforcement officers formed no disciplined police force and were not subject to effective control by the central government, watch committees or an inspectorate. There was no legal aid. There was no system of appeal. To crown it all the accused was unable to give evidence on his own behalf and was therefore largely at the mercy of any evidence, either perjured or oppressively obtained, that might be brought against him. The judiciary were therefore compelled to devise artificial rules designed to protect him against dangers now avoided by other and more rational means. Nevertheless, the rule has survived into the twentieth century, not only unmodified but developed, and only Parliament can modify it now from the form in which it was given classical expression by Lord Sumner."
  143. Other cases confirm that the truth of the confession was not relevant to its admissibility. In Chan Wei Kueng v R [1967] 2 AC 160, it was held that on a voir dire as to the admissibility of a defendant's challenged statement, the prosecution should not ask questions in cross-examination of the defendant with the object of establishing the truth of the statement. When a statement is ruled inadmissible as contrary to the common law rule, evidence of what was said during the voir dire is inadmissible. Giving the judgment of the Judicial Committee of the Privy Council in Wong Kam-Ming v The Queen [1980] AC 247, Lord Edmund-Davies, at page 256H, cited with approval the judgment of Hall CJ in the Canadian case of R v Hnedish [1958] 26 WWR 685 at 688:
  144. "Having regard to all the implications involved in accepting the full impact of the Hammond decision [1941] 3 All ER 318 which can, I think, be summarised by saying that regardless of how much physical or mental torture or abuse has been inflicted on an accused to coerce him into telling what is true, the confession is admitted because it is in fact true regardless of how it was obtained, I cannot believe that the Hammond decision does reflect the final judicial reasoning of the English courts… I do not see how under the guise of 'credibility' the court can transmute what is initially an inquiry as to the 'admissibility' of the confession into an inquisition of an accused. That would be repugnant to our accepted standards and principles of justice; it would invite and encourage brutality in the handling of persons suspected of having committed offences"

     

  145. I can read those statements only as an affirmation of the concern of the common law to protect accused persons from oppression. The rule was based not merely on concerns about the reliability of evidence obtained by oppression; it protected accused persons from oppression and marked the repugnance of the common law, in the context of criminal trials, to evidence so obtained from a defendant. Section 76 of the 1984 Act, influenced I would expect by the jurisprudence under Article 6 of the Convention, embodied the same principle.
  146. Abuse of process

  147. Mr Emmerson also relies on the abuse of process jurisdiction exercised in criminal courts in England and Wales, which has, he submits, the same rationale as the exclusion of tainted confessions. In R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42, Lord Lowry stated, at page 76C:
  148. "… the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused."
  149. In R v Latif [1996] 1 WLR 104, Lord Steyn said, at page 112H:
  150. "The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R v Horseferry Road Magistrates' Court, ex p. Bennett… The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that trial should take place. An infinite variety of cases could arise."
  151. In R v Looseley, Attorney-General's Reference (No.3 of 2000) [2001] 1 WLR 2060, the House of Lords considered the admissibility of evidence obtained as a result of undercover police officers dealing with drug dealers. Lord Nicholls of Birkenhead stated, at paragraph 1:
  152. "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."
  153. Lord Nicholls referred to R v Sang [1980] AC 402, ex parte Bennett and Latif. He stated, at paragraph 15:
  154. "These statutory and common law developments have been reinforced by the Human Rights Act 1998. It is unlawful for the court, as a public authority, to act in a way which is incompatible with a Convention right. Entrapment, and the use of evidence obtained by entrapment ("as a result of police incitement"), may deprive a defendant of the right to a fair trial embodied in Article 6: see the decision of the European Court of Human Rights in Teixeira de Castro v Portugal [1998] 28 EHRR 101.
    16       . Thus, although entrapment is not a substantive defence, English law has now developed remedies in respect of entrapment: the court may stay the relevant criminal proceedings, and the court may exclude evidence pursuant to section 78. In these respects R v Sang [1980] AC 402 has been overtaken. Of these two remedies the grant of a stay, rather than the exclusion of evidence at the trial, should normally be regarded as the appropriate response in a case of entrapment. Exclusion of all the prosecution evidence would, of course, dispose of any anomaly in this regards. But a direction to this effect would really be a stay of the proceedings under another name. Quite apart from these considerations, as a matter of principle stay of the proceedings, or of the relevant charges, is the more appropriate form of remedy. A prosecution founded on entrapment would be an abuse of the court's process. The court will not permit the prosecutorial arm of the state to behave in this way."
  155. At paragraph 18, Lord Nicholls stated that "courts should distinguish clearly between an application to exclude evidence on the ground that the defendant should not be tried at all and an application to exclude evidence on the ground of procedural fairness. The distinction was also made by Lord Hoffmann at paragraphs 42 to 44. At paragraph 40, Lord Hoffmann described the stay procedure as "a jurisdiction to prevent abuse of executive power".
  156. Looseley provides an example, it is submitted, correctly in my view, where Article 6 has required the existence of an exclusionary rule in a criminal trial. It is an example of the impact of Article 6 upon the common law, to the development of which Lord Nicholls refers. While abuse of process has a more general scope, the statements cited in this part of the judgment have expressly been made with a view to dealing with problems arising in criminal trials.
  157. In Montgomery v HM Advocate & Anr [2003] 1AC 641; the Privy Council considered the issue to be addressed under Article 6. Lord Hoffmann stated, at page 649D:
  158. "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)."
  159. Particular reliance is placed by Mr Emmerson on the decision of the Divisional Court (Sedley LJ and Poole J) in R (Ramda) v Secretary of State for the Home Department [2002] EWHC 1278 Admin. The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. At paragraph 9, Sedley LJ stated:
  160. "Among the issues for the Home Secretary to determine may be whether the trial to be faced by the wanted person will be a fair trial. This may involve the voluntariness of extra-judicial confessions relied on as against him."

    The court cited the passage from Lord Hoffmann's judgment in Montgomery already mentioned.

  161. It was thought that the prosecutor in France would rely on an extra-judicial confession by Bensaid and that it would be admissible in French law against the accused person. Having considered counsel's [Mr Emmerson's] invitation to the court to infer that Bensaid had been beaten up at a time closely prior to admissions he made, the court concluded at paragraph 22:
  162. "Questions of admissibility within the requesting state's criminal process are ordinarily for the courts of the requesting state to decide, especially where admissibility turns upon disputed issues of fact. It is only where it can be demonstrated that the approach taken by the requesting state's courts to admissibility will itself be such as to create a real risk of a fundamentally unfair trial that the principle of mutual respect stressed in McQuire and other decisions may have to yield. In a case such as the present this requires the Home Secretary to be satisfied of at least two things: that Bensaid's incriminating admissions may well have been the direct result of brutality, and that the French courts will not entertain, except to reject it in limine, any argument in the claimant's defence based upon this contention. If the Home Secretary concludes that these elements are established, he will be effectively bound to refuse extradition."

     

  163. At paragraph 24, the court stated:
  164. "As to the adequacy of the total inquiry, there remain at least two questions to which, on the face of the materials eventually before him, the Home Secretary has yet to give a properly reasoned response. One is whether there was any investigation at all of the original complaint of ill-treatment of Bensaid; the other is whether the French courts, given the record now available of their later decisions in relation to Bensaid, will now entertain any request by the claimant to exclude Bensaid's confessions."

    In the absence of further material, the court quashed the Secretary of State's order for Ramda's return to France.

  165. This case demonstrates, submits Mr Emmerson, the extent of the court's abhorrence of a conviction based on evidence obtained by torture. Moreover, the case involves a confession, not by the proposed defendant, but by a prospective prosecution witness.
  166. Route three

  167. The third possible route on which Mr Emmerson relies has been stated succinctly. Article 15 of UNCAT prohibits the admission before the Commission of testimony obtained by the torture of a third party inflicted by the agents of a foreign state. If, contrary to submissions on routes 1 and 2, Part 4 of the 2001 Act is to be construed as permitting the admission of evidence obtained by torture of a third party inflicted by the agents of a foreign state, that is incompatible with the international obligation under Article 15 of UNCAT. For that reason it is incompatible with the requirement that a derogation from Convention obligations is permissible only provided it is not inconsistent with the United Kingdom's other obligations under international law. The 2001 Act and the 2003 Rules are therefore to be interpreted in a manner consistent with the derogation, which requires compatibility with Article 15 of UNCAT, and excluding admission of evidence obtained by torture of a third party by agents of a foreign state.
  168. In the alternative, and this is a return to routes 1 and 2, the limited scope of the derogation is an additional reason to construe the common law and Article 6 of the Convention in the light of Article 15 of UNCAT and thereby to achieve the level of protection sought. It was the alternative argument which was pressed orally by Mr Emmerson, conscious no doubt that the court is not concerned with the lawfulness of the derogation and that no point has been taken in the derogation proceedings upon the admissibility of statements made as a result of torture inflicted by the agents of a foreign state.
  169. Further material

  170. Reference was made to other material to demonstrate the abhorrence with which the law regards torture. In the Institutes of the Laws of England, Part 3, 34-35, (referred to by Lord Hope of Craighead in his University of Essex lecture (2004)), Sir Edward Coke stated:
  171. "So as hereby it appeareth, that where the law requireth that a prisoner should be kept in salva & arcta custodia yet that that must be without pain or torment to the prisoner…

    … Sir John Fortescue chiefe justice of England wrote his book in commendation of the lawes of England, and therein preferreth the same for the government of this countrey before the civill law; and particularly that all tortures and torments of parties accused were directly against the common lawes of England, and shewed the inconvenience thereof by fearfull example, to whom I refer you, being worthy your reading. So as there is no law to warrant tortures in this and, nor can they be justified by any prescription being so lately brought in."

  172. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 expressed themselves strongly in Prosecutor v Furundzija (10 December 1998):
  173. "146 . The existence of this corpus of general and treaty rules proscribing torture shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals. No legal loopholes have been left."

    At paragraph 150 they stated:

    "…By contrast, in the case of torture, the mere fact of keeping in force or passing legislation contrary to the international prohibition of torture generates international State responsibility. The value of freedom from torture is so great that it becomes imperative to preclude any national legislative act authorising or condoning torture or at any rate capable of bringing about this effect."
  174. P E v France [2001] 10 IHRR 421 was a decision of the Committee against Torture established under Article 17 of UNCAT and empowered to consider complaints against states parties to the Convention. While holding that there had not been a violation of Article 15, it was stated:
  175. "6.3 The Committee considers in this regard that the generality of the provisions of article 15 derives from the absolute nature of the prohibition of torture and imply, consequently, an obligation for each State party to ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as a result of torture. The Committee finds that the statements at issue constitute part of the evidence of the procedure for the extradition of the complainant, and for which the State party is competent. In this regard, in the light of the allegations that the statements at issue, which constituted, at least in part, the basis for the additional extradition request were obtained as a result of torture, the State party had the obligation to ascertain the veracity of such allegations."
  176. As to the burden of proof, the Committee also stated (paragraph 6.6)
  177. "The Committee, bearing in mind that it is for the author to demonstrate that her allegations are well founded, considers that, on the basis of the facts before it, it cannot conclude that it has been established that the statements at issue were obtained as a result of torture."
  178. Mr Burnett draws attention to the fact that the UNCAT Committee has not challenged the focus on criminal proceedings found in the reports of the United Kingdom Government to the Committee. Documents supplied to the Court show a similar focus in the reports of other states.
  179. Reference is made to the statutes and rules of international tribunals dealing with admissibility in criminal trials. Article 69(7) of the Statute of the International Criminal Court, for example, provides:
  180. "Evidence obtained by means of a violation of this Statute or internationally recognised human rights shall not be admissible if:

    (a) the violation casts substantial doubt on the reliability of the evidence; or

    (b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings"

  181. In R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet (No.3) [2000] 1 AC 147, it was common ground that international law prohibiting torture has the character of jus cogens or a peremptory norm, i.e. one of those rules of international law which have a particular status. Lord Browne-Wilkinson stated, at page 198:
  182. "the jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state because the offenders are "common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution:" Demjanjuk v Petrovsky (1985) 603 F.supp. 1468"
  183. By way of general comment on Article 7 of the International Covenant on Civil and Political Rights (1976) which provides, insofar as is material, that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment", the Human Rights Committee set up under the Covenant stated on 10 March 1992 that:
  184. "It is important for the discouragement of violations under Article 7 that the law must prohibit the use or admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment. "

    Article 12 of the UN General Assembly Declaration of 1975, which covers some of the same ground as Article 7 of the Covenant, provides:

    "Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings."

    General Assembly Declarations, of which there are many, do not impose legal obligations but act as guidelines for the world community.

    Further submissions

  185. Mr Emmerson accepts that derivative evidence, with an existence independent of a tainted interrogation, is admissible regardless of its reliability or truth. The Appellants, he said, do not advance any "fruits of the poisoned tree" doctrine. He referred to Lord Diplock's statement in Sang (p436E) that "there is no discretion to exclude evidence discovered as the result of an illegal search".
  186. He also submits, however, that there is no need, in this case, to rule on the difficult questions which may arise upon derivative evidence, such as stolen goods found as a result of a tainted confession. He seeks to establish what he describes as the core proposition that the Commission should not consider evidence consisting of statements obtained in breach of Article 3.
  187. Mr Emmerson (though not Mr Gill) submits that the exclusionary principle does not bind the Secretary of State. It binds only a judicial body and it is immaterial whether the Secretary of State can take into account evidence obtained in breach of Article 3. The exclusionary rule applies not between the executive and the individual but between the court and the executive. In his reply, Mr Gill submitted that no valid distinction can or ought to be drawn between what the Secretary of State can consider in order to justify certification and what the Commission can consider in a Section 25 appeal. Mr Burnett considered extraordinary the submission that a distinction could be drawn between what the Secretary of State could have regard to under Section 21 and what the Commission could have regard to under Section 25.
  188. I say now that I cannot accept that submission of Mr Emmerson. If the Commission takes the view that admission of evidence before it is abhorrent, the Commission should say so in clear terms: The evidence is not admitted because it is abhorrent. On that finding, it is abhorrent for the executive to rely on evidence obtained in breach of Article 3. It would be wrong for the Secretary of State to certify on the basis of evidence which, because it would not be admissible before the Commission, would inevitably require the discharge of the certificate by the Commission.
  189. The Appellants rely on the comprehensive prohibition in Article 15 of UNCAT, with respect to torture though not the other ill-treatment mentioned in Article 3 of the Convention. If a statement is established to be made as a result of torture, it shall not be invoked as evidence in any proceedings. The rule, it is submitted, includes statements made by persons not party to the proceedings and it covers the proceedings in the Commission.
  190. It is submitted that the common law and Article 6 should be applied and construed so as to achieve the level of protection contemplated by Article 15 of UNCAT, with respect to torture. The Convention has not however been incorporated into English law. The approach to be applied is stated in R v Lyons & Ors. Lord Bingham stated:
  191. "13. … It is true, as the Attorney General insisted, that rules of international law not incorporated into national law confer no rights on individuals directly enforceable in national courts. But although international and national law differ in their content and their fields of application they should be seen as complementary and not as alien or antagonistic systems. Even before the Human Rights Act 1998 the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law. I would further accept, as Mr Emmerson strongly contended, with reference to a number of sources, that the efficacy of the Convention depends on the loyal observance by member states of the obligations they have undertaken and on the readiness of all exercising authority (whether legislative, executive or judicial) within member states to seek to act consistently with the Convention so far as they are free to do so.

    14    .  Mr Emmerson however accepted, as submission (7) in my summary makes clear, that a Convention duty, even if found to exist, cannot override an express and applicable provision of domestic statutory law…. "

  192. Lord Hoffmann stated:
  193. "27. In other words, the Convention is an international treaty and the ECHR is an international court with jurisdiction under international law to interpret and apply it. But the question of whether the appellants' convictions were unsafe is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them: J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 1 AC 418 (the International Tin Council case). Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109, 283: " I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention].

    28 But for present purposes the important words are "when I am free to do so". The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not."

    Lord Hutton, at page 69, expressed a similar view. Lord Hobhouse of Woodborough agreed with Lord Hoffmann and Lord Millett with both Lord Bingham and Lord Hoffmann.

  194. Lyons is also relied on by the Appellants as demonstrating an already existing exclusionary rule of evidence (as to statements obtained under section 434 of the Companies Act 1985). It arises, though not in that case retrospectively, from an application of Article 6 (per Lord Hobhouse at paragraph 81).
  195. It is submitted that the burden of proving that the relevant evidence was not obtained in breach of Article 3 is upon the Secretary of State. It would be nonsensical, Mr Emmerson submits, to place a burden on an appellant to establish that the evidence relied on had been obtained in breach of Article 3. It is impossible for the Appellants to conduct investigations, for example, at Guantanamo Bay. The witness A before the Commission, professed ignorance of ill-treatment. Such burden as may have been on the Appellants was discharged by the production of newspaper articles showing, for example, admissions by United States Authorities which came close to admissions either of torture or of other conduct in breach of Article 3, according to the severity of ill-treatment required to fall within Article 3 indicated in Ireland v United Kingdom (1978) 2 EHRR 25. It had been demonstrated that there was a serious issue to be addressed. Four volumes of further material are now available.
  196. It is submitted that if an exclusionary rule exists, there is no difficulty in interpreting Part 4 of the 2001 Act consistently with it. It should be construed in that way if possible.
  197. Conclusions

  198. The repugnance of the common law to the admission at a trial of statements obtained from defendants by torture is clear. That repugnance is also expressed in international instruments and by international tribunals. Article 3 of the Convention, derogation from which is not permitted, is expressed in plain terms and the provisions of Article 15 of UNCAT are comprehensive. UNCAT imposes, in international law, strict obligations upon the states party, including the United Kingdom. The abuse of process jurisdiction developed by the English courts, and also recognised in the statutes of international tribunals, enables the courts to prevent what they regard as an abuse of state power.
  199. For reasons already given, it would not in my judgment be a satisfactory outcome to hold that the Secretary of State is not constrained by an exclusionary rule whereas the Commission, as a court, is so constrained. The Commission monitors the exercise of powers by the Secretary of State and, if there is an exclusionary rule, the Commission cannot permit the Secretary of State to ignore it. The question as to what information the Secretary of State is entitled to take into account when performing his duty under Section 21(1) must be confronted on the basis that he can do only what the Commission, in its consideration, regards as lawful.
  200. The issue is as to the effect of this jurisprudence upon the duties of the Secretary of State under Section 21 of the 2001 Act and on the Commission under Section 25. The issue does not turn upon the different times at which the appraisals are to be made. If free to do so, the court should interpret the law in accordance with United Kingdom obligations of the Crown under international instruments. These include the obligations under the Convention and UNCAT already considered and obligations placed on the United Kingdom by Security Council Resolution 1373. The comprehensiveness of the obligations under that Resolution, some of which are set out at paragraph 26, support the view that the Secretary of State is expected to cast his net wide in obtaining information.
  201. On the assumption that the 2001 Order is lawful, an assumption this court is obliged to make on the basis of A & Ors, legislation such as the 2001 Act can be expected in order to discharge the obligations under the Security Council Resolution and the Secretary of State's duty to safeguard national security. The circumstances arising are very different from those in a criminal trial which is the context of most of the jurisprudence considered in this judgment, with its concern for safeguards for defendants. Under the 2001 Act certification (and consequent detention) are justified upon a suspicion and a belief. The mental process involved in forming a reasonable suspicion was examined by Lord Hope in O'Hara, cited at paragraph 32. Powers can be exercised while the Appellants choose to remain in the United Kingdom. They are entitled to leave. A justification for the derogation is that removal might itself result in treatment contrary to Article 3 of the Convention.
  202. It is necessary to consider the process likely to be followed by the Secretary of State in performing his duty under Section 21. He and his officials are likely to have a great deal of information about the general situation covered by the derogation and about particular individuals. That was the case with the present Appellants. Some of the information before the Secretary of State will be in the form of statements from witnesses. Some of it is likely to be hearsay, first or second degree, on which the Secretary of State is entitled to rely in forming a suspicion and belief. Some of it will be derivative evidence, which has come to light as a result of statements obtained, and is accepted to be admissible. Material is also likely to be provided by other governments, including evidence based on hearsay.
  203. In that context, it would be contrary to the exercise of the statutory power as intended by Parliament, and also unrealistic, to expect the Secretary of State to investigate each statement with a view to deciding whether the circumstances in which it was obtained involved a breach of Article 3. It would involve investigation into the conduct of friendly governments with whom the Government is under an obligation to co-operate. Such a duty with respect to each individual statement is inconsistent, in this context, with the power to act on suspicion and belief. In this context, the safeguards for suspected persons must take different forms from those expected in a criminal trial and they include regular reviews by the Commission and Parliamentary monitoring of the legislation.
  204. The value judgment required of the Secretary of State when deciding to issue a certificate will normally be based, as it was in these cases, on an assessment of information obtained from many and varied sources. Diligent and conscientious enquiry is required before a certificate can be issued. The statute requires the Secretary of State, in the interests of national security, to form a general and overall view with respect to the person's continued presence in the United Kingdom.
  205. As to the Commission, it must review the Secretary of State's sources of information. For the Commission to be involved in deciding upon the provenance of each piece of information available to the Secretary of State would be likely to be a detailed and complex exercise. Such a duty would be inconsistent with a statutory power conferred on the Secretary of State for a legitimate purpose and would distract from the overall view which the statute requires when assessing whether reasonable suspicion and belief were present. Some acknowledgement of the Secretary of State's expertise and responsibilities is also appropriate. Provided the Secretary of State is acting in good faith, a recognition of his responsibility for national security is required when assessing his approach to the material available to him. In the context of the 2001 Act and 2003 rules, the exclusionary rule sought cannot be introduced.
  206. The decision in extradition proceedings in Ramda does not, in my judgment, upon the above analysis, translate into the present statutory framework. Ramda was facing a criminal charge in France and the Court requested further information from France as to how proceedings there would be conducted. I leave open for further consideration the extent to which, upon a request for extradition, an English court is entitled, in this context, to investigate the legal procedures of the requesting state.
  207. The obligation contained in Article 15 of UNCAT is not part of domestic law. In so far as its application would require an analysis of sources before a reasonable belief or suspicion could be formed, it would be directly contrary to the statutory intention in Part 4 in the 2001 Act, and rule 44 of the 2003 Rules. If Article 15 alone were held to be applicable, a distinction would have to be made during investigations between torture and the other forms of ill-treatment mentioned in Article 3, a concept difficult to engage with the statutory powers and duties.
  208. As to the third route I accept, of course, that the court should attempt to construe domestic law so as to make it compliant with the international obligations of the United Kingdom. The obligation in Article 15 of the Convention, in relation to consistency with other obligations under international law, is not, however, part of domestic law. For the reasons given when considering the other routes, Part 4 of the 2001 Act cannot in my judgment be construed so as to introduce Article 15 of UNCAT into domestic law by a different route. Beyond that, the submission is an attack upon the lawfulness and effect of the derogation which is not a subject now before this court.
  209. On my finding, argument about the burden and standard of proof is of little significance. For the reasons given by Lord Slynn and Lord Hoffman in Rehman, the concept of standard of proof is not helpful. The task of the Secretary of State under Section 21 and that of the Commission under Section 25 is that of evaluation and judgment. The evaluation will have regard to the source of the material and the circumstances in which it was obtained.
  210. If Article 15 of UNCAT were to be relevant, its wording suggests a burden on the person alleging torture. That was the view taken by the UNCAT Committee in P E v France.
  211. The statute does not, however, deprive the Commission of an abuse of process jurisdiction. Indeed, the existence of such a jurisdiction is inherent in the judicial function. It is a fundamental principle of the rule of law, as stated by Lord Nicholls in Looseley, and it is difficult to envisage an Act of Parliament which could exclude it. There remains a residual jurisdiction even in this context. An example of abuse, accepted as such by the Secretary of State, would be where the only information relied on by the Secretary of State in forming his suspicion and belief was a statement obtained from the suspect by United Kingdom authorities by torture. I would not confine it to that situation or attempt to define it at this stage. The international co-operation necessary to combat terrorism, rightly stressed on behalf of the Secretary of State, could lead to a situation in which the United Kingdom Government was so involved with ill-treatment in obtaining information that it became an abuse of state power to attempt to rely on the information and the Commission could not tolerate its admission. The statute does not, however, permit too circumscribed a view of available material when assessing the reasonableness of the suspicion and belief formed. Moreover, provided the Secretary of State is acting in good faith, a recognition of his responsibility for national security is required when assessing his approach to the material available to him.
  212. Nothing has been brought to the attention of the Court which would amount to such misuse of state power as would have required the Commission to discharge the certificates or have prevented the Secretary of State from relying on the material when discharging his duty under Section 21. While making the reservation I have, I am not prepared to hold that the Commission adopted the wrong approach to the material before them. I am not able to hold that the claimed exclusionary rule exists in the context of the 2001 Act.
  213. The parties have sensibly restricted the hearing before this court to a consideration of the general legal points raised. If it is sought, in the light of the judgments in this court, to establish in a particular case, in the statutory context, misuse of state power such that the Commission should intervene, that can be done upon the forthcoming review by the Commission which the statute requires.
  214. Jurisdiction

  215. Two of the Appellants, Ajouaou and F, have left the jurisdiction. Each has lodged an appeal against certification. In each case, the Secretary of State has exercised his power under Section 21(7) to revoke the certificate since the appeal was launched and has done so with retrospective effect.
  216. The Commission concluded, at paragraph 34, that the revocation of the certificates deprived it of jurisdiction. The Commission stated:
  217. "The appeal is against certification, which connotes a continuing state of affairs. The powers available on appeal are only to cancel a certificate; that power only makes sense in the context of a certificate which remains in force. The statutory language is reinforced by the first ground upon which an appeal can be allowed, which goes to present merits. The appeal would at best be arguable on the rather limited paragraph (b) ground."
  218. The conclusion was elaborated upon in the individual determination in the case of F. The Commission stated, at paragraph 11:
  219. "Section 25(4) provides that where a certificate is cancelled it shall be treated as never having been issued. Section 25(2)(a) clearly looks to the situation at the time of the appeal. It does not say, as it could have done, that there are or were at the time it was issued no reasonable grounds, etc. It therefore clearly in our view presupposes that the certification is still in being at the time of the hearing.

    … But Parliament could have made it clear that an appeal could be made against the issue of the certificate rather than, as section 25(1) provides, against the certification."

  220. The parties are at one in submitting that the finding was in error. The right of access to a tribunal or court is of fundamental importance (R v Secretary of State ex parte Saleem [2001] 1 WLR 443). The certified person should be permitted to challenge certification as a suspecte