A & Ors v. Secretary of State for the Home Department

The House held that courts should not admit in judicial proceedings statements or confessions established to have been obtained by torture, regardless of where or by whom the torture was inflicted. The decision rested on the common law tradition rejecting torture, the absolute protection in article 3 of the European Convention on Human Rights, and the United Nations Convention against Torture (in particular article 15). The Special Immigration Appeals Commission's procedural rule permitting the receipt of material "that would not be admissible in a court of law" did not authorise the reception of evidence produced by torture. Where an appellant raises a plausible reason to suspect evidence may have been obtained by torture, SIAC must investigate; if on diligent inquiry SIAC concludes on the balance of probabilities that the material was obtained by torture, it must exclude it. The appeals were allowed and the cases remitted to SIAC for reconsideration in light of these principles.

This group of conjoined appeals concerned whether the Special Immigration Appeals Commission (SIAC), when hearing appeals under section 25 of the Anti-terrorism, Crime and Security Act 2001 by persons certified and detained under that Act, may receive and rely upon evidence that had been or might have been procured by torture inflicted by officials of a foreign state without British complicity.

Background and procedural posture

• Parties: appellants were non-British nationals detained on certification under the 2001 Act; respondent was the Secretary of State for the Home Department.
• Prior steps: SIAC dismissed the appellants' appeals in October 2003 after open and closed judgments; a majority of the Court of Appeal upheld SIAC ([2004] EWCA Civ 1123). The appeals to the House of Lords were preserved by transitional provision in the Prevention of Terrorism Act 2005.

Nature of the claim / relief sought

The appellants challenged the lawfulness of SIAC admitting and relying on evidence which had, or might have, been obtained by torture abroad; they submitted exclusion was required by the common law, the European Convention on Human Rights (notably article 3 and article 5(4) read with fair-trial principles) and public international law including the United Nations Convention against Torture (article 15).

Issues framed

1. Whether the common law excludes evidence obtained by torture (wherever and by whom inflicted) from judicial proceedings.
2. Whether the European Convention and the Torture Convention require exclusion of such evidence, and if so how SIAC should approach challenges to admissibility.
3. What burden and standard of proof should apply when an appellant alleges evidence was obtained by torture, and what procedures SIAC should adopt.

Court's reasoning

• The House emphasised the long-standing common law abhorrence of torture and treated exclusion of evidence obtained by torture as a constitutional principle that protects the integrity and honour of the administration of justice.
• Article 3 ECHR is absolute; the Strasbourg jurisprudence and the Torture Convention (notably article 15) support exclusion of statements established to have been made as a result of torture. International law treats torture as a jus cogens norm and requires states to discourage and not to condone torture or its fruits.
• Statutory provisions and SIAC procedure rules (including rule 44(3)) do not, by implication, authorise reception of evidence obtained by torture; such a departure from fundamental principles requires express primary legislation.
• On procedure, an appellant (or special advocate) need only advance a plausible reason to suspect material may have been procured by torture; thereafter SIAC must undertake such inquiries as practicable. If SIAC establishes on the balance of probabilities that the material was obtained by torture it must exclude it. Several members of the House preferred slightly different formulations of the standard, but the House allowed the appeals and remitted the cases to SIAC for reconsideration in accordance with the principles expounded.

Appeals allowed. The House held that evidence which is established to have been obtained by torture is inadmissible in judicial proceedings, including before SIAC. SIAC must investigate plausible allegations that evidence was procured by torture and, if on diligent inquiry it concludes on the balance of probabilities that a statement was obtained by torture, it must exclude that evidence; the cases were remitted to SIAC for reconsideration in light of these principles.

Appeals to SIAC were heard May–July 2003 and SIAC dismissed the appeals (open and closed judgments, 29 October 2003). The Court of Appeal (Pill and Laws LJJ majority; Neuberger LJ in part dissent) upheld SIAC in [2004] EWCA Civ 1123. The appeals to the House of Lords were heard and determined on 8 December 2005 ([2005] UKHL 71). The House allowed the appeals and remitted the cases to SIAC. The earlier House judgment in the related proceedings is A and others v Secretary of State for the Home Department [2004] UKHL 56.