Judgments - 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)

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    13.  Since there has been no lawfully sanctioned torture in England since 1640, and the rule that unsworn statements made out of court are inadmissible in court was well-established by at latest the beginning of the 19th century (Cross & Tapper on Evidence, 10th edn (2004), p 582), there is an unsurprising paucity of English judicial authority on this subject. In Pearse v Pearse (1846) 1 De G & Sm 12, 28-29, 63 ER 950, 957, Knight Bruce V-C observed:

    "The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination . . . Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much . . ."

That was not a case involving any allegation of torture. Such an allegation was however made in R (Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134 where the applicant for habeas corpus resisted extradition to India on the ground, among others, that the prosecution relied on a statement obtained by torture and since retracted. The Queen's Bench Divisional Court (Rose LJ and Newman J) accepted the magistrate's judgment that fairness did not call for exclusion of the statement, but was clear (para 60 of the judgment) that the common law and domestic statute law (section 78 of the Police and Criminal Evidence Act 1984) gave effect to the intent of article 15 of the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990, Cm 1775), "the Torture Convention", to which more detailed reference is made below.

Involuntary confessions

    14.  The appellants relied, 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, if it is challenged, unless the prosecution proves beyond reasonable doubt that the confession had not been obtained by oppression of the person who made it or 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. This rule is now found in section 76 of the Police and Criminal Evidence Act 1984, but enacts a rule established at common law and expressed in such decisions as Ibrahim v The King [1914] AC 599, 609-610, R v Harz and Power [1967] AC 760, 817, and Lam Chi-ming v The Queen [1991] 2 AC 212, 220.

    15.  Plainly this rule provides an inexact analogy with evidence obtained by torture. It applies only to confessions by defendants, and it provides for exclusion on grounds very much wider than torture, or even inhuman or degrading treatment. But it is in my opinion of significance that the common law (despite suggestions to that effect by Parke B and Lord Campbell CJ in R v Baldry (1852) 2 Den 430, 445, 446-447, 169 ER 568, 574, 575, and by the Privy Council, in judgments delivered by Lord Sumner, in Ibrahim v The King [1914] AC 599, 610 and Lord Hailsham of St Marylebone in Director of Public Prosecutions v Ping Lin [1976] AC 574, 599-600) has refused to accept that oppression or inducement should go to the weight rather than the admissibility of the confession. The common law has insisted on an exclusionary rule. See, for a clear affirmation of the rule, Wong Kam-ming v The Queen [1980] AC 247.

    16.  In R v Warickshall (1783) 1 Leach 263, 168 ER 234, this rule was justified on the ground that involuntary statements are inherently unreliable. That justification is, however, inconsistent with the principle which the case established, that while an involuntary statement is inadmissible real evidence which comes to light as a result of such a statement is not. Two points are noteworthy. First, there can ordinarily be no surer proof of the reliability of an involuntary statement than the finding of real evidence as a direct result of it, as was so in Warickshall's case itself, but that has never been treated as undermining the rule. Secondly, there is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement.

    17.  Later decisions make clear that while the inherent unreliability of involuntary statements is one of the reasons for holding them to be inadmissible there are other compelling reasons also. In Lam Chi-ming v The Queen [1991] 2 AC 212, 220, in a judgment delivered by Lord Griffiths, the Privy Council summarised the rationale of the exclusionary rule:

    "Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody."

Lord Griffiths described the inadmissibility of a confession not proved to be voluntary as perhaps the most fundamental rule of the English criminal law. The rationale explained by Lord Griffiths was recently endorsed by the House in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513, paras 1, 7, 27, 45-46, 71. It is of course true, as counsel for the Secretary of State points out, that in cases such as these the attention of the court was directed to the behaviour of the police in the jurisdiction where the defendant was questioned and the trial was held. This was almost inevitably so. But it is noteworthy that in jurisdictions where the law is in general harmony with the English common law reliability has not been treated as the sole test of admissibility in this context. In Rochin v California 342 US 165 (1952) Frankfurter J, giving the opinion of the United States Supreme Court, held that a conviction had been obtained by "conduct that shocks the conscience" (p 172) and referred to a "general principle" that "States in their prosecutions respect certain decencies of civilized conduct" (p 173). He had earlier (p 169) referred to authority on the due process clause of the United States constitution which called for judgment whether proceedings "offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses." In The People (Attorney General) v O'Brien [1965] IR 142, 150, the Supreme Court of Ireland held, per Kingsmill Moore J, that "to countenance the use of evidence extracted or discovered by gross personal violence would, in my opinion, involve the State in moral defilement." The High Court of Australia, speaking of a discretion to exclude evidence, observed (per Barwick CJ in R v Ireland (1970) 126 CLR 321, 335), that "Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price." In R v Oickle [2000] 2 SCR 3, a large majority of the Supreme Court of Canada cited with approval (para 66) an observation of Lamer J that "What should be repressed vigorously is conduct on [the authorities'] part that shocks the community" and considered (para 69) that while the doctrines of oppression and inducements were primarily concerned with reliability, the confessions rule also extended to protect a broader concept of voluntariness that focused on the protection of the accused's rights and fairness in the criminal process.

Abuse of process

    18.  The appellants submit, in reliance on common law principles, that the obtaining of evidence by the infliction of torture is so grave a breach of international law, human rights and the rule of law that any court degrades itself and the administration of justice by admitting it. If, therefore, it appears that a confession or evidence may have been procured by torture, the court must exercise its discretion to reject such evidence as an abuse of its process.

    19.  In support of this contention the appellants rely on four recent English authorities. The first of these is R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42. This case was decided on the factual premise that the applicant had been abducted from South Africa and brought to this country in gross breach of his rights and the law of South Africa, at the behest of the British authorities, to stand trial here, and on the legal premise that a fair trial could be held. The issue, accordingly, was whether the unlawful abduction of the applicant was an abuse of the court's process to which it should respond by staying the prosecution. The House held, by a majority, that it was. The principle laid down most clearly appears in the opinion of Lord Griffiths at pp 61-62:

    ". . . In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

    My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. . . ."

Counsel for the Secretary of State points out that the members of the majority attached particular significance to the involvement of the British authorities in the unlawful conduct complained of, and this is certainly so: see the opinion of Lord Griffiths at p 62F, Lord Bridge of Harwich at pp 64G and 67G and Lord Lowry at pp 73G, 76F and 77D. But the appellants point to the germ of a wider principle. Thus Lord Lowry (p 74G) understood the court's discretion to stay proceedings as an abuse of process to be exercisable where either a fair trial is impossible or "it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case." He opined (p 76C):

    "that 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."

Lord Lowry's opinion did not earn the concurrence of any other member of the House, but the appellants contend that this wider principle is applicable in the extreme case of evidence procured by torture. In United States v Toscanino 500 F 2d 267 (1974) the US Court of Appeals reached a decision very similar to Bennett.

    20.  In R v Latif [1996] 1 WLR 104 the executive misconduct complained of was much less gross than in Bennett, and the outcome was different. Speaking for the House, Lord Steyn (at pp 112-113) acknowledged a judicial discretion to stay proceedings as an abuse if they would "amount to an affront to the public conscience" and where "it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place." In that case the conduct complained of was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed.

    21.  The premises of the Court of Appeal's decision in R v Mullen [2000] QB 520 were similar to those in Bennett, save that a fair trial had already taken place and Mullen had already been convicted of very serious terrorist offences, and sentenced to 30 years' imprisonment, before he was alerted to the misconduct surrounding his abduction from Zimbabwe. Despite the fairness of the trial, his conviction was quashed. Giving the reserved judgment of the court, Rose LJ said (at pp 535-536):

    "This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the I.R.A. and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight must be attached."

    22.  The fourth authority relied on for its statements of principle was R v Looseley, Attorney General's Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060, which concerned cases of alleged entrapment. At the outset of his opinion (para 1) my noble and learned friend Lord Nicholls of Birkenhead declared that:

    "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."

A stay is granted in a case of entrapment not to discipline the police (para 17) but because it is improper for there to be a prosecution at all for the relevant offence, having regard to the state's involvement in the circumstances in which it was committed. To prosecute in a case where the state has procured the commission of the crime is (para 19) "unacceptable and improper" and "an affront to the public conscience." Such a prosecution would not be fair in the broad sense of the word. My noble and learned friend Lord Hoffmann, having referred to Canadian authority and to Bennett, accepted Lord Griffiths' description of the power to stay in the case of behaviour which threatened basic human rights or the rule of law as (para 40) "a jurisdiction to prevent abuse of executive power".


    23.  If, contrary to their submission (and to the opinion of the Divisional Court in R (Saifi) v Governor of Brixton Prison: see para 13 above) the common law and section 78 of the 1984 Act are not, without more, enough to require rejection of evidence which has or may have been procured by torture, whether or not with the complicity of the British authorities, the appellants submit that the European Convention compels that conclusion.

    24.  It is plain that SIAC (and, for that matter, the Secretary of State) is a public authority within the meaning of section 6 of the Human Rights Act 1998 and so forbidden to act incompatibly with a Convention right. One such right, guaranteed by article 3, is not to be subjected to torture or to inhuman or degrading treatment. This absolute, non-derogable prohibition has been said (Soering v United Kingdom (1989) 11 EHRR 439, para 88) to enshrine "one of the fundamental values of the democratic societies making up the Council of Europe". The European Court has used such language on many occasions (Aydin v Turkey (1997) 25 EHRR 251, para 81).

    25.  Article 6 of the Convention guarantees the right to a fair trial. Different views have in the past been expressed on whether, for purposes of article 6, the proceedings before SIAC are to be regarded as civil or criminal. Rather than pursue this debate the parties are agreed that the appellants' challenge to their detention pursuant to the Secretary of State's certification in any event falls within article 5(4). That provision entitles anyone deprived of his liberty by arrest or detention 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. It is well-established that such proceedings must satisfy the basic requirements of a fair trial: Garcia Alva v Germany (2001) 37 EHRR 335; R (West) v Parole Board, R (Smith) v Parole Board (No 2) [2005] UKHL 1, [2005] 1 WLR 350. Sensibly, therefore, the parties are agreed that the applicability of article 6 should be left open and the issue resolved on the premise that article 5(4) applies.

    26.  The Secretary of State submits that under the Convention the admissibility of evidence is a matter left to be decided under national law; that under the relevant national law, namely, the 2001 Act and the Rules, the evidence which the Secretary of State seeks to adduce is admissible before SIAC; and that accordingly the admission of this evidence cannot be said to undermine the fairness of the proceedings. I shall consider the effect of the statutory scheme in more detail below. The first of these propositions is, however, only half true. It is correct that the European Court of Human Rights has consistently declined to articulate evidential rules to be applied in all member states and has preferred to leave such rules to be governed by national law: see, for example, Schenk v Switzerland (1988) 13 EHRR 242, para 46; Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288, para 48; Khan v United Kingdom (2000) 31 EHRR 1016, para 34. It has done so even where, as in Khan, evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. But in these cases and others the court has also insisted on its responsibility to ensure that the proceedings, viewed overall on the particular facts, have been fair, and it has recognised that the way in which evidence has been obtained or used may be such as to render the proceedings unfair. Such was its conclusion in Saunders v United Kingdom (1996) 23 EHRR 313, a case of compulsory questioning, and in Teixeira de Castro v Portugal (1998) 28 EHRR 101, para 39, a case of entrapment. A similar view would have been taken by the Commission in the much earlier case of Austria v Italy (1963) 6 YB 740, 784, had it concluded that the victims whom Austria represented had been subjected to maltreatment with the aim of extracting confessions. But the Commission observed that article 6(2) could only be regarded as being violated if the court subsequently accepted as evidence any admissions extorted in this manner. This was a point made by my noble and learned friend Lord Hoffmann in the much more recent devolution case of Montgomery v H M Advocate, Coulter v H M Advocate [2003] 1 AC 641, 649, when he observed:

    "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)."

Lord Hoffmann, in R v Governor of Brixton Prison, Ex p Levin [1997] AC 741, 748, did not exclude the possibility (he did not have to decide) that evidence might be rejected in extradition proceedings if, though technically admissible, it had been obtained in a way which outraged civilised values. Such was said to be the case in R (Ramda) v Secretary of State for the Home Department [2002] EWHC 1278 (Admin), unreported, 27 June 2002, where the applicant resisted extradition to France on the ground that the evidence which would be relied on against him at trial had been obtained by torture and that he would be unable to resist its admission. The Queen's Bench Divisional Court concluded (para 22) that if these points were made out, his trial would not be fair and the Secretary of State would be effectively bound to refuse to extradite him. In the very recent case of Mamatkulov and Askarov v Turkey (App Nos 46827/99 and 46951/99, unreported, 4 February 2005) Judges Bratza, Bonello and Hedigan delivered a joint partly dissenting opinion, in the course of which they held in paras 15-17:

    "15.  As in the case of the risk of treatment proscribed by Article 3 of the Convention, the risk of a flagrant denial of justice in the receiving State for the purposes of Article 6 must be assessed primarily by reference to the facts which were known or should have been known by the respondent State at the time of the extradition.

    16.  The majority of the Court acknowledge that, in the light of the information available, there 'may have been reasons for doubting at the time' that the applicants would receive a fair trial in Uzbekistan (judgment, § 91). However, they conclude that there is insufficient evidence to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice within the meaning of the Court's Soering judgment.

    17.  We consider, on the contrary, that on the material available at the relevant time there were substantial grounds not only for doubting that the applicants would receive a fair trial but for concluding that they ran a real risk of suffering a flagrant denial of justice. The Amnesty International briefing document afforded, in our view, credible grounds for believing that self-incriminating evidence extracted by torture was routinely used to secure guilty verdicts and that suspects were very frequently denied access to a lawyer of their choice, lawyers often being given access to their client by law enforcement officials after the suspect had been held in custody for several days, when the risk of torture was at its greatest. In addition, it was found that in many cases law enforcement officials would only grant access to a lawyer after the suspect had signed a confession and that meetings between lawyers and clients, once granted, were generally infrequent, defence lawyers rarely being allowed to be present at all stages of the investigation."

The approach of these judges is consistent with the even more recent decision of the Court in Harutyunyan v Armenia (App No 36549/03, unreported, 5 July 2005) where in paras 2(b) and (f) the Court ruled:

    "(b)  As to the complaint about the coercion and the subsequent use in court of the applicant's confession statement, the Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

    (f)  As to the complaint about the use in court of witness statements obtained under torture, the Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government."

Had the Court found that the complaints of coercion and torture appeared to be substantiated, a finding that article 6(1) had been violated would, in my opinion, have been inevitable. As it was, the Court did not rule that these complaints were inadmissible. Nor did it dismiss them. It adjourned examination of the applicant's complaints concerning the alleged violation of his right to silence and the admission in court of evidence obtained under torture.


    27.  The appellants' submission has a further, more international, dimension. They accept, as they must, that a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law: J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418; R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696; R v Lyons [2002] UKHL 44, [2003] 1 AC 976. But they rely on the well-established principle that the words of a United Kingdom statute, passed after the date of a treaty and dealing with the same subject matter, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it: Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771. The courts are obliged under section 2 of the 1998 Act to take Strasbourg jurisprudence into account in connection with a Convention right, their obligation under section 3 is to interpret and give effect to primary and subordinate legislation in a way which is compatible with Convention rights so far as possible to do so and it is their duty under section 6 not to act incompatibly with a Convention right. If, and to the extent that, development of the common law is called for, such development should ordinarily be in harmony with the United Kingdom's international obligations and not antithetical to them. I do not understand these principles to be contentious.

    28.  The appellants' argument may, I think, be fairly summarised as involving the following steps:

    (1)  The European Convention is not to be interpreted in a vacuum, but taking account of other international obligations to which member states are subject, as the European Court has in practice done.

    (2)  The prohibition of torture enjoys the highest normative force recognised by international law.

    (3)  The international prohibition of torture requires states not merely to refrain from authorising or conniving at torture but also to suppress and discourage the practice of torture and not to condone it.

    (4)  Article 15 of the Torture Convention requires the exclusion of statements made as a result of torture as evidence in any proceedings.

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