A and others(appellant in a conjoined appeal) where two of the 10 individuals certified by secretary of state as suspected international terrorists under the Anti-terrorism, crime and security act(ATCSA) 20011 s. 21, and detained under s. 23 of that Act without charge in accordance with derogation from the human Rights Act 1998 order 2001. The secretary of state can issue a certificate in respect of a foreign (non- uk) national whom he reasonably believes to pose a risk to national security and whom the secretary reasonably suspects of being a terrorist.
A person certified under the ATCSA 2001 can challenge this certification before the Special immigration Appeals commission(the SIAC). Under s. 25 ATCSA,3 the SIAC was empowered to hear appeals from non-UK nationals who had been certified. The SIAC heard open evidence when the appellant and their legal representatives were present and closed evidence when they were excluded but special advocates were present. The SIAC dismissed the appeals. The appellants appealed unsuccessfully to the court of Appeal.
On the 11th August 2004, the court of Appeal held by a majority of 2 to 1. 4The majority, laws and Phil LJJ, held that it was for the appellants to establish that the statement in question was obtained by torture. 5 Both the SIAC and the Court of Appeal were satisfied that the fact that evidence had, or might have been, obtained by torture at the hands of foreign officials without complicity of the British authorities was relevant to the weight of the evidence but not to its admissibility.
It further had that they could consider all of the evidence, and that there was no finding, that any of the evidence from third parties abroad had been obtained in breach of the human rights Act 1998. The case went to the House of Lords on Appeal. The grounds for appeal were that evidence obtained by torture should never be admitted into proceedings in the united king down. The appellant based their argument on several issue; firstly, that the common law of England prohibit torture and has done so for over 500 years, evidence obtain by torture should never be admissibly.
Secondly, Article 15 of the united nations convention Against torture and other cruel, inhuman or degrading treatment or punishment 1987 which provided that each state party was to 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 a person accused of torture as evidence that the statement was made.. Thirdly that ECHR is not to be interpreted in a vacuum effect of this and other international law should be taken into account.
Fourthly on the issue of burden of proof, the appellant contended that once challenged, evidence would have to be establish admissible by the party seeking to introduce it. The home secretary also put across issues for their lordship to considered; firstly, evidence obtained from a third party using torture is admissible in appeal to the SIAC and relying on the case of Kaurama v The Queen(1955). If the SIAC was not permitted to view such evidence there will be a mismatch which was not intended by parliament7. Secondly, they rely on the statutory scheme established by part4 of ATCSA.
The submit that there was a need to obtain intelligence from foreign sources, which may dry up if the mean of obtaining such intelligence were the subject of intrusive. Thirdly, they relied under rule 44(3) of the special immigration Appeals commission Rules(2003/1034), that the commission is authorised to hear evidence that a court of law would find inadmissible. finally, in relation to the burden of proof, the secretary of state contended that it was for the party seeking to challenge the admissibility of evidence to make good the grounds on which the challenge was based.
The judges analysed these arguments in great detail and considered statutory material from different angles and reached a conclusions based on their interpretation. When considering the appellants argument on the common law use of torture, Lord Bingham(delivering the majority judgment) cited materials from English jurists such as; SIR William Blackstone's (commentaries on the laws of England, 1969) Sir James Stephen (A history of the criminal law of England 1883). And held that; from its earliest days, the English common law set its face firmly against the use of torture.
It has done so for over 500years and the abhorrence is now shared by over 140 countries which have acceded to the torture, convention. "I am startled, even a little dismayed, at the suggestion the majority of court of Appeal that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be override by a statute and a procedural rule which make no mention of torture at all". 9 On this issue, Lord Nicholls agreeing with Lord Bingham's reasoning, turns to the case of john Felton who, in 1628 assassinated the Duke of Buckingham.
10 He refused to provide the names of his accomplices and the matter came before the judges who had assembled at serjeant Inn, in fleet street. He stated that the judges agreed unanimously that Felton "ought not by law to be tortured by the rack, for no such punishment is know or allowed by our law11 Furthermore more lord Bingham stated that the appellant by way of partial analogy, on the familiar principle that evidence may not be given by a prosecutor in English criminal proceedings of a confession made by a defendant.
In using the "golden rule" in interpreting section 76 of the Police and Criminal Evidence Act 198414 and citing case of Ibrahim v the King, his lordship concluded that "an inexact analogy to with evidence obtained by torture. It applies only to confession by defendants, and it provides for exclusion on grounds very much wider than torture"15. Although the case in hand is one which is mostly concerned with statutory materials, their lordships in delivering their judgment, comments and applications of case law was suited to their needs. In relation to the admissibility of evidence obtain by torture(and involuntary confession).
Lord Bingham in maintaining that the common law insists on an exclusionary rule with refers to case of R v Warickshall justifies that "involuntary statements are inherently unreliable16. Expanding on Lord Bingham, Lord Hoffman citing R v Horseferry road magistrates court exp Bennett, in rejecting the home secretary's case argument maintained that Kumara is no longer applicable as in Horseferry the court made it clear that they "will not shut their eyes to the way the accused was brought before the court or evidence of his guilt was obtained.
Those methods may be such that it would compromise the integrity of the judicial process, dishonour the administration of justice, if the proceedings were to be entertained or the evidence admitted"17. Lord Hope use the case of Robert Baillie of Jerviswood who stood trail accused of plotting a rebellion against Charles11. His lordship reasoned that English authority choose to send the accused to Scotland where in the 1680's torture was permissible.
Baillie stood trail before a jury in the High court of judiciary in Scotland and following a reading of his statement, which he gave after being tortured, he was convicted and sentenced to death the following day. Hope concluded that there is a warning of "extraordinary rendition". 18 On the appellant argument that to allow third party torture evidence to be admissible would" so a breach of international law, human rights and the rule of law that any country degrades itself and administration of justice by admitting it ".
19 Most of their lordships went on to agreed with the issue that to admit third party torture evidence would "bring British justice into disrepute"20 and held that the concerns surrounding the use of torture do not fall away when the offending acts are at the hands of another state such that21. Lord Bingham concluded that the international prohibition on the use of torture enjoys the status of a jus cogens or peremptory norm of general international law"22 "the state attaching to such evidence will defile an English court whatever the nationality of the torture.
Lord Bingham agreeing with the appellant's argument that the Ecthr is not to be interpreted in a vacuum. Article 31(3)(c) of the Vienna convention on the law of Treaties provides that in interpreting a treaty, there shall be taken into account any relevant rules of international law applicable between the parties24. Furthermore his lordship disagree with the home secretary argument that, in terms of the obligations under the ECHR, the European court of Human Rights(ECtHR) had held that what is admissible as evidence before national courts is a matter for national authorities.