A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) (2004)A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals)

A court or judicial tribunal may not admit a statement established to have been obtained by torture. The rule applies irrespective of where, by whom or under whose authority the torture was inflicted. It protects the integrity of judicial proceedings and is not confined to unreliable evidence or misconduct involving British officials.

General procedural words permitting receipt of otherwise inadmissible evidence cannot override this fundamental constitutional principle. Express primary legislation would be required.

Where torture is plausibly alleged before SIAC, the Commission must investigate so far as practicable. By a majority, exclusion is required when torture is established on the balance of probabilities. Residual doubt affects weight rather than admissibility. The rule concerns the coerced statement itself and does not necessarily exclude independently probative evidence discovered through it.

The appellants had been certified as suspected international terrorists and detained under Part 4 of the Anti-terrorism, Crime and Security Act 2001. Their appeals against certification were heard by the Special Immigration Appeals Commission. SIAC held that evidence obtained, or possibly obtained, through torture by foreign officials without British complicity was admissible, although its provenance affected weight.

SIAC dismissed the appeals. A majority of the Court of Appeal upheld that ruling in [2004] EWCA Civ 1123, [2005] 1 WLR 414, Neuberger LJ dissenting in part. The appellants appealed to the House of Lords.

The central issue was whether SIAC, when exercising its judicial function under section 25 of the 2001 Act, could receive and rely upon statements procured by torture inflicted abroad by foreign officials without British participation. A further issue concerned the procedure and evidential standard for determining whether torture had been used.

1. Appeals allowed unanimously. Lord Bingham delivered the leading speech on the exclusionary rule. Lord Nicholls, Lord Hoffmann, Lord Hope, Lord Rodger, Lord Carswell and Lord Brown all agreed that SIAC could not admit a statement established to have been obtained by torture, even where foreign officials inflicted the torture without British complicity. The orders of SIAC and the Court of Appeal were set aside, and the cases were remitted to SIAC.

2. Per Lord Bingham, the common law's condemnation of torture is a constitutional principle rather than a technical rule of evidence. Statements obtained by torture are excluded because they are unreliable, unfair, offensive to ordinary standards of humanity and incompatible with the integrity of a tribunal administering justice. Lord Hoffmann emphasised that the rule preserves the honour of the legal system rather than merely disciplining executive agents. Lord Carswell and Lord Brown likewise treated judicial integrity as paramount.

3. The rule applies to torture wherever and by whomever inflicted. Article 15 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 confirms that a statement established to have resulted from torture cannot be invoked in any proceedings, except against a person accused of torture as evidence that the statement was made.

4. Rule 44(3) of the Special Immigration Appeals Commission (Procedure) Rules 2003, which permits SIAC to receive evidence inadmissible in a court of law, does not authorise torture evidence. Per Lord Bingham, Lord Hoffmann, Lord Hope and Lord Rodger, such a fundamental principle could be displaced only by express primary legislation or the plainest necessary implication. Neither the 2001 Act nor the Rules mentioned torture.

5. The executive may use intelligence possibly obtained through torture for operational purposes, such as locating a bomb or preventing an attack. SIAC performs a different function. Under section 25 it must form its own judicial view, at the time of the hearing, whether reasonable grounds exist for the statutory belief and suspicion. The material upon which the executive may act therefore need not coincide with evidence admissible in judicial proceedings.

6. By a majority on the evidential standard, Lord Hope, Lord Rodger, Lord Carswell and Lord Brown held that, once a plausible issue is raised, SIAC must make such diligent inquiries as are practicable. It must exclude the statement if satisfied on the balance of probabilities that torture was used. If the matter remains doubtful, the statement is admissible, although its doubtful provenance must be considered when assessing weight.

7. Lord Bingham, supported on this issue by Lord Nicholls and Lord Hoffmann, preferred the more protective rule that SIAC should exclude the statement unless satisfied that there was no real risk that torture had been used. They considered that the majority standard would ordinarily be impossible for a detainee to satisfy in closed proceedings.

1. House of Lords: The appeals were allowed unanimously in [2005] UKHL 71. The orders below were set aside and all cases were remitted to SIAC for reconsideration. The House divided 4–3 on the standard for establishing that torture had been used.
2. Court of Appeal: By a majority, Pill and Laws LJJ, with Neuberger LJ dissenting in part, upheld SIAC's ruling that foreign torture evidence was legally admissible but its provenance affected weight: [2004] EWCA Civ 1123, [2005] 1 WLR 414.
3. Special Immigration Appeals Commission: On 29 October 2003 SIAC dismissed the certification appeals. It held that torture by foreign officials without British complicity affected the weight, but not the admissibility, of the evidence.