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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)
LORD BINGHAM OF CORNHILL
1. May the Special Immigration Appeals Commission ("SIAC"), a superior court of record established by statute, when hearing an appeal under section 25 of the Anti-terrorism, Crime and Security Act 2001 by a person certified and detained under sections 21 and 23 of that Act, receive evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities? That is the central question which the House must answer in these appeals. The appellants, relying on the common law of England, on the European Convention on Human Rights and on principles of public international law, submit that the question must be answered with an emphatic negative. The Secretary of State agrees that this answer would be appropriate in any case where the torture had been inflicted by or with the complicity of the British authorities. He further states that it is not his intention to rely on, or present to SIAC or to the Administrative Court in relation to control orders, evidence which he knows or believes to have been obtained by a third country by torture. This intention is, however, based on policy and not on any acknowledged legal obligation. Like any other policy it may be altered, by a successor in office or if circumstances change. The admission of such evidence by SIAC is not, he submits, precluded by law. Thus he contends for an affirmative answer to the central question stated above. The appellants' case is supported by written and oral submissions made on behalf of 17 well-known bodies dedicated to the protection of human rights, the suppression of torture and maintenance of the rule of law.
2. The appeals now before the House are a later stage of the proceedings in which the House gave judgment in December 2004: A and others v Secretary of State for the Home Department, X and another v Secretary of State for the Home Department  UKHL 56,  2 AC 68. In their opinions given then, members of the House recited the relevant legislative provisions and recounted the relevant history of the individual appellants up to that time. To avoid wearisome repetition, I shall treat that material as incorporated by reference into this opinion, and make only such specific reference to it as is necessary for resolving these appeals.
The Anti-terrorism, Crime and Security Act 2001
3. The 2001 Act was this country's legislative response to the grave and inexcusable crimes committed in New York, Washington DC and Pennsylvania on 11 September 2001, and manifested the government's determination to protect the public against the dangers of international terrorism. Part 4 of the Act accordingly established a new regime, applicable to persons who were not British citizens, whose presence in the United Kingdom the Secretary of State reasonably believed to be a risk to national security and whom the Secretary of State reasonably suspected of being terrorists as defined in the legislation. By section 21 of the Act he was authorised to issue a certificate in respect of any such person, and to revoke such a certificate. Any action of the Secretary of State taken wholly or partly in reliance on such a certificate might be questioned in legal proceedings only in a prescribed manner.
4. Sections 22 and 23 of the Act recognised that it might not, for legal or practical reasons, be possible to deport or remove from the United Kingdom a suspected international terrorist certified under section 21, and power was given by section 23 to detain such a person, whether temporarily or indefinitely. This provision was thought to call for derogation from the provisions of article 5(1)(f) of the European Convention, which it was sought to effect by a Derogation Order, the validity of which was one of the issues in the earlier stages of the proceedings.
5. Section 25 of the Act enables a person certified under section 21 to appeal to SIAC against his certification. On such an appeal SIAC must cancel the certificate if "(a) 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), or (b) it considers that for some other reason the certificate should not have been issued". If the certificate is cancelled it is to be treated as never having been issued, but if SIAC determines not to cancel a certificate it must dismiss the appeal. Section 26 provides that certifications shall be the subject of periodic review by SIAC.
6. SIAC was established by the Special Immigration Appeals Commission Act 1997, which sought to reconcile the competing demands of procedural fairness and national security in the case of foreign nationals whom it was proposed to deport on the grounds of their danger to the public. Thus by section 1 (as amended by section 35 of the 2001 Act) SIAC was to be a superior court of record, now (since amendment in 2002) including among its members persons holding or having held high judicial office, persons who are or have been appointed as chief adjudicators under the Nationality, Immigration and Asylum Act 2002, persons who are or have been qualified to be members of the Immigration Appeal Tribunal and experienced lay members. All are appointed by the Lord Chancellor, who is authorised by section 5 of the Act to make rules governing SIAC's procedure. Such rules, which must be laid before and approved by resolution of each House of Parliament, have been duly made. Such rules may, by the express terms of sections 5 and 6, provide for the proceedings to be heard without the appellant being given full particulars of the reason for the decision under appeal, for proceedings to be held in the absence of the appellant and his legal representative, for the appellant to be given a summary of the evidence taken in his absence and for appointment by the relevant law officer of a legally qualified special advocate to represent the interests of an appellant in proceedings before SIAC from which the appellant and his legal representative are excluded, such person having no responsibility towards the person whose interests he is appointed to represent.
7. The rules applicable to these appeals are the Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034). Part 3 of the Rules governs appeals under section 25 of the 2001 Act. In response to a notice of appeal, the Secretary of State, if he intends to oppose the appeal, must file a statement of the evidence on which he relies, but he may object to this being disclosed to the appellant or his lawyer (rule 16): if he objects, a special advocate is appointed, to whom this "closed material" is disclosed (rule 37). SIAC may overrule the Secretary of State's objection and order him to serve this material on the appellant, but in this event the Secretary of State may choose not to rely on the material in the proceedings (rule 38). A special advocate may make submissions to SIAC and cross-examine witnesses when an appellant is excluded and make written submissions (rule 35), but may not without the directions of SIAC communicate with an appellant or his lawyer or anyone else once the closed material has been disclosed to him (rule 36). Rule 44(3) provides that SIAC "may receive evidence that would not be admissible in a court of law". The general rule excluding evidence of intercepted communications, now found in section 17(1) of the Regulation of Investigatory Powers Act 2000, is expressly disapplied by section 18(1)(e) in proceedings before SIAC. SIAC must give written reasons for its decision, but insofar as it cannot do so without disclosing information which it would be contrary to the public interest to disclose, it must issue a separate decision which will be served only on the Secretary of State and the special advocate (rule 47).
The appellants and the proceedings
8. Of the 10 appellants now before the House, all save 2 were certified and detained in December 2001. The two exceptions are B and H, certified and detained in February and April 2002 respectively. Each of them appealed against his certification under section 25. Ajouaou and F voluntarily left the United Kingdom, for Morocco and France respectively, in December 2001 and March 2002, and their certificates were revoked following their departure. C's certificate was revoked on 31 January 2005 and D's on 20 September 2004. Abu Rideh was transferred to Broadmoor Hospital under sections 48 and 49 of the Mental Health Act 1983 in July 2002. Conditions for his release on bail were set by SIAC on 11 March 2005, and on the following day his certificate was revoked and a control order (currently the subject of an application for judicial review) was made under the Prevention of Terrorism Act 2005, enacted to replace Part 4 of the 2001 Act. Events followed a similar pattern in the cases of E, A and H, save that none was transferred to Broadmoor and notice of intention to deport (currently the subject of challenge) was given to A and H in August 2005, since which date they have been detained. The control orders made in their cases were discharged. B's case followed a similar course to A's, save that he was transferred to Broadmoor under sections 48 and 49 of the 1983 Act in September 2005. In the case of G, bail conditions were set by SIAC in April 2004 and revised on 10 March 2005. His certificate was revoked and a control order made under the 2005 Act on 12 March 2005. He was given notice of intention to deport (which he is challenging) on 11 August 2005, and he has since been detained. His control order was discharged.
9. The appellants' appeals to SIAC under section 25 of the 2001 Act were heard in groups between May and July 2003. During these hearings argument and evidence were directed both to general issues relevant to all or most of the appeals and to specific issues relevant to individual cases. SIAC heard open evidence when the appellants and their legal representatives were present and closed evidence when they were excluded but special advocates were present. On 29 October 2003 judgments were given dismissing all the appeals. There were open judgments on the general and the specific issues, and there were also closed judgments. On the question central to these appeals to the House, raised in its present form when the proceedings before it were well advanced, SIAC gave an affirmative answer: the fact that evidence had, or might have been, procured by torture inflicted by foreign officials without the complicity of the British authorities was relevant to the weight of the evidence but did not render it legally inadmissible. In lengthy judgments given on 11 August 2004, a majority of the Court of Appeal (Pill and Laws LJJ, Neuberger LJ in part dissenting) upheld this decision:  EWCA Civ 1123,  1 WLR 414. Despite the repeal of Part 4 of the 2001 Act by the 2005 Act, the appellants' right of appeal to the House against the Court of Appeal's decision under section 7 of the 1997 Act is preserved by section 16(4) of the Prevention of Terrorism Act 2005, and no question now arises as to the competency of any of these appeals.
THE COMMON LAW
10. The appellants submit that the common law forbids the admission of evidence obtained by the infliction of torture, and does so whether the product is a confession by a suspect or a defendant and irrespective of where, by whom or on whose authority the torture was inflicted.
11. It is, I think, clear that from its very earliest days the common law of England set its face firmly against the use of torture. Its rejection of this practice was indeed hailed as a distinguishing feature of the common law, the subject of proud claims by English jurists such as Sir John Fortescue (De Laudibus Legum Angliae, c. 1460-1470, ed S.B. Chrimes, (1942), Chap 22, pp 47-53), Sir Thomas Smith (De Republica Anglorum, ed L Alston, 1906, book 2, chap 24, pp 104-107), Sir Edward Coke (Institutes of the Laws of England (1644), Part III, Chap 2, pp 34-36). Sir William Blackstone (Commentaries on the Laws of England, (1769) vol IV, chap 25, pp 320-321), and Sir James Stephen (A History of the Criminal Law of England, 1883, vol 1, p 222). That reliance was placed on sources of doubtful validity, such as chapter 39 of Magna Carta 1215 and Felton's Case as reported by Rushworth (Rushworth's Collections, vol (i), p 638) (see D. Jardine, A Reading on the Use of Torture in the Criminal Law of England Previously to the Commonwealth, 1837, pp 10-12, 60-62) did not weaken the strength of received opinion. The English rejection of torture was also the subject of admiring comment by foreign authorities such as Beccaria (An Essay on Crimes and Punishments, 1764, Chap XVI) and Voltaire (Commentary on Beccaria's Crimes and Punishments, 1766, Chap XII). This rejection was contrasted with the practice prevalent in the states of continental Europe who, seeking to discharge the strict standards of proof required by the Roman-canon models they had adopted, came routinely to rely on confessions procured by the infliction of torture: see A L Lowell, "The Judicial Use of Torture" (1897) 11 Harvard L Rev 220-233, 290-300; J Langbein, Torture and the Law of Proof: Europe and England in the Ancien Regime (1977); D. Hope, "Torture"  53 ICLQ 807 at pp 810-811. In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.
12. Despite this common law prohibition, it is clear from the historical record that torture was practised in England in the 16th and early 17th centuries. But this took place pursuant to warrants issued by the Council or the Crown, largely (but not exclusively) in relation to alleged offences against the state, in exercise of the Royal prerogative: see Jardine, op cit.; Lowell, op cit., pp 290-300). Thus the exercise of this royal prerogative power came to be an important issue in the struggle between the Crown and the parliamentary common lawyers which preceded and culminated in the English civil war. By the common lawyers torture was regarded as (in Jardine's words: op cit, pp 6 and 12) "totally repugnant to the fundamental principles of English law" and "repugnant to reason, justice, and humanity." One of the first acts of the Long Parliament in 1640 was, accordingly, to abolish the Court of Star Chamber, where torture evidence had been received, and in that year the last torture warrant in our history was issued. Half a century later, Scotland followed the English example, and in 1708, in one of the earliest enactments of the Westminster Parliament after the Act of Union in 1707, torture in Scotland was formally prohibited. The history is well summarised by Sir William Holdsworth (A History of English Law, vol 5, 3rd ed (1945), pp 194-195, footnotes omitted):
As Jardine put in (op. cit., p 13):
This condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.