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)
114. Rule 44(3) of the Special Immigration Appeals Commission (Procedure) Rules 2003 (2003/1034) provides that the Commission may receive evidence that would not be admissible in a court of law. But I consider, in agreement with all your Lordships, that this rule is incompatible with the fundamental nature of the objection to the admission of statements obtained by the use of torture, wherever it was administered, and that it does not extend to them. That being the nature of the objection, the question whether it can be overridden and, if so, in what circumstances must be left to the legislature. This is not a matter that can be left to implication. Nothing short of an express provision will do, to which Parliament has unequivocally committed itself.
115. There are ample grounds for suspecting that the use of torture on detainees suspected of involvement in international terrorism is widespread in countries with whom the security services of the United Kingdom are in contact. The Secretary of State's position is that he does not rely on information that he knows has been obtained by torture, as a matter of principle. But he is willing to accept and act upon information whose origin is obscure and undetectable, in the knowledge that it may have come from countries that use torture. He says that it is for the party who objects to its use on the ground that torture was used to make good his objection. What then is the approach that SIAC should take to this issue?
(a) The burden of proof
116. I agree that a conventional approach to the burden of proof is inappropriate in this context. It would be wholly unrealistic to expect the detainee to prove anything, as he is denied access to so much of the information that is to be used against him. He cannot be expected to identify from where the evidence comes, let alone the persons who have provided it. All he can reasonably be expected to do is to raise the issue by asking that the point be considered by SIAC. There is, of course, so much material in the public domain alleging the use of torture around the world that it will be easy for the detainee to satisfy that simple test. All he needs to do is point to the fact that the information which is to be used against him may have come from one of the many countries around the world that are alleged to practise torture, bearing in mind that even those who say that they do not use torture apply different standards from those that we find acceptable. Once the issue has been raised in this general way the onus will pass to SIAC. It has access to the information and is in a position to look at the facts in detail. It must decide whether there are reasonable grounds to suspect that torture has been used in the individual case that is under scrutiny. If it has such a suspicion, there is then something that it must investigate as it addresses its mind to the information that is put before it which has been obtained from the security services.
(b) The standard of proof
117. Guidance needs to be given on this point too. Do the facts need to be established beyond a reasonable doubt or do they need to be established only on a balance of probabilities? To answer this question we must know what it is that has to be established. It is at the point of defining what SIAC must inquire into that, with the greatest of respect, I begin to differ from Lord Bingham. He says that it is for SIAC to initiate or direct such inquiry as is necessary to enable it to form a fair judgment whether the evidence has, or whether there is a real risk that it may have been, obtained by torture or not. But it is one thing if what SIAC is to be required to do is to form a fair judgment as to whether the evidence has, or may have been, obtained by torture. It is another if what it is to be required to do is to form a fair judgment as to whether it has not, or may not, have been obtained by torture.
118. Lord Bingham then says that SIAC should refuse to admit the evidence if it is unable to conclude that there is not a real risk that the evidence has been obtained by torture. My own position, for reasons that I shall explain more fully in the following paragraphs, is that SIAC should refuse to admit the evidence if it concludes that the evidence was obtained by torture. I am also firmly of the view that, if it approaches the issue in this way, it should apply the lower standard of proof. The liberty of the subject dictates this. So SIAC should not admit the evidence if it concludes on a balance of probabilities that it was obtained by torture. In other words, if SIAC is left in doubt as to whether the evidence was obtained in this way, it should admit it. But it must bear its doubt in mind when it is evaluating the evidence. Lord Bingham's position, as I understand it, is that if it is left in doubt SIAC should exclude the evidence. That, in short, is the only difference between us.
(c) The test
119. I must now explain why I believe that the question which SIAC must address should be put positively rather than negatively. The effect of rule 44(3) of the Procedure Rules is that sources of all kinds may be relied upon, far removed from what a court of law would regard as the best evidence. SIAC may be required to look at information coming to the attention of the security services at third or fourth hand and from various sources, the significance of which cannot be determined except by looking at the whole picture which it presents. The circumstances in which the information was first obtained may be incapable of being detected at all or at least of being determined without a long and difficult inquiry which would not be practicable. So it would be unrealistic to expect SIAC to demand that each piece of information be traced back to its ultimate source and the circumstances in which it was obtained investigated so that it could be proved piece by piece, that it was not obtained under torture. The threshold cannot be put that high. Too often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages. Our revulsion against torture, and the wish which we all share to be seen to abhor it, must not be allowed to create an insuperable barrier for those who are doing their honest best to protect us. A balance must be struck between what we would like to achieve and what can actually be achieved in the real world in which we all live. Articles 5(4) and 6(1) of the European Convention, to which Lord Bingham refers in para 62, must be balanced against the right to life that is enshrined in article 2 of the Convention.
120. I would take as the best guide to what is practicable the approach that article 15 of the Torture Convention takes to this issue. The United Nations has adopted it, and it has the support of all the signatories to the Convention. So it deserves to be respected as the best guide that international law has to offer on this issue. First, the exclusionary rule that it lays down applies to statements obtained under torture, not to information that may have been discovered as a result of them. Logic might suggest that the fruits of the poisoned tree should be discarded too. But the law permits evidence to be led however it was obtained, if the evidence is in itself admissible: Kuruma v The Queen  AC 197. Secondly, the exclusionary rule applies to "any proceedings". Mr Burnett QC for the Secretary of State suggested that this phrase should be read as extending to criminal proceedings only, but I would not so read it. The word "any" is all-embracing and it is perfectly capable of applying to the proceedings conducted by SIAC.
121. Thirdly, and crucially, the exclusionary rule extends to any statement that "is established" to have been made under torture. The rule does not require it to be shown that the statement was not made under torture. It does not say that the statement must be excluded if there is a suspicion of torture and the suspicion has not been rebutted. Nor does it say that it must be excluded if there is a real risk that it was obtained by torture. An evaluation of risk is appropriate if the question at issue relates to the future: see Mamatkulov and Askarov v Turkey (Application Nos 46827/99 and 46951/99) 4 February 2005, para 71. The question in that case was whether there was a real risk for the purposes of article 3 of the European Convention at the time of their extradition that the applicants would be tortured. The rule that article 15 lays down looks at what has happened in the past. It applies to a statement that is established to have been made under torture. In my opinion the test that it lays down is the test that should be applied by SIAC. It too must direct its inquiry to what has happened in the past. Is it established, by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? If that is the position, article 15 requires that the information must be left out of account in the overall assessment of the question whether there were no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1) (a) or (b) of the Anti-terrorism, Crime and Security Act 2001. The same rule must be followed in any other judicial process where information of this kind would otherwise be admissible.
122. Support for this approach is to be found in a decision in the case of El Motassadeq of the Hanseatisches Oberlandesgericht (the Hanseatic Court of Appeals, Criminal Division), Hamburg of 14 June 2005, NJW 2005, 2326. El Motassadeq had been charged with conspiracy to cause the attacks of 11 September 2001 on the United States of America and with membership of an illegal organisation. The court had been provided by the US Department of Justice with summaries of statements of three witnesses which, subject to certain safeguards, were admissible under its Code of Criminal Procedure as equivalent to written records of statements by these witnesses. The court was, of course, aware from press articles and other reports that there were indications that suspected Al Qaeda members had been subjected to torture within the meaning of article 1 of the Convention, and it was contended that these statements should be excluded under article 15. Repeated requests to the competent US authorities for information about the circumstances of the examination of these witnesses met with no response, and attempts to obtain this information through the German authorities were blocked on the ground that the information had been given to them for intelligence purposes only and that a breach of the limitations of use would jeopardise the security interests of the Federal Republic of Germany. In this situation the court had no option but to base its assessment of the question whether torture had been used on available, publicly accessible sources. On the one hand the White House denied that it used or condoned torture. On the other hand it had admitted that it did not view Al Qaeda prisoners as coming under the protection of international human rights agreements on the treatment of prisoners of war. This was enough to raise the suspicion that torture had been used. There was a question to answer on this point.
123. The court's conclusions are to be found in the following paragraphs of the certified translation:
In a concluding paragraph the court said that it was mindful of the problems posed by the possible use of torture and would take this into consideration when assessing the information in the summaries, adding: "This does not imply legitimisation of the use of torture, even in view of the enormous scale of the attacks of 11 September 2001."
124. The significant points that I would draw from that case are these. The court was careful to distinguish between the generalised allegations of torture which were to be found in the press articles and other materials - sufficient, it might well be said, to raise a suspicion of torture - and the position of these three witnesses in particular. What it was looking for was evidence which established that the statements of these three witnesses in particular had been obtained under torture. The test which it was asked to apply was that laid down by the article. The evidence for assuming that torture had been used was said to be weak, and the contents of the statements tended to show that torture had not been used. The court did not go so far as to say that it was unable to conclude that there was not a real risk that the evidence had been obtained by torture. It was left in a state of doubt on this point. If it had applied the test which Lord Bingham suggests, the result would have been different because it had been denied access to information about the precise circumstances.
125. Article 15 of the Convention does not compel us to adopt the test which Lord Bingham suggests, and there are good reasons - as the case of El Motassadeq so clearly demonstrates - for thinking that the terms on which information is passed to the intelligence services would make it impossible for it to be met in practice. Your Lordships were provided with a statement by the Director General of the Security Service which indicates that the problems of obtaining access to the sources of information from foreign intelligence services are just as acute in this country as they appear to have been in Germany. In my opinion the public interest requires us to refrain from setting up a barrier to the use of such information which other nations do not impose on themselves and which is likely in practice to be insuperable. I do not believe that the test which I suggest is one that in the real world can never be satisfied. Nor do I believe that applying the test which the Convention itself lays down in the way I suggest would undermine the practical efficiency of the Convention. I think that we should adhere to what the Convention requires us to do, while making it clear that the issue as to whether torture has been used in the individual case is of the highest importance and that it must, of course, receive the most anxious scrutiny.
126. There is a fourth element in article 15 which ought to be noticed, although the issue has not been focussed by the facts of this case. The exclusionary rule that article 15 of the Torture Convention lays down extends to statements obtained by the use of torture, not to those obtained by the use of cruel, inhuman or degrading treatment or punishment. That is made clear by article 16.1 of the Convention. The borderline between torture and treatment or punishment of that character is not capable of precise definition. As John Cooper, Cruelty - an analysis of Article 3 (2003), para 1-02 points out, the European Committee for the Prevention of Torture are unwilling to produce a clear and comprehensive interpretation of these terms, their approach being that these are different types of ill-treatment, more or less closely linked. Views as to where the line is to be drawn may differ sharply from state to state. This can be seen from the list of practices authorised for use in Guantanamo Bay by the US authorities, some of which would shock the conscience if they were ever to be authorised for use in our own country. SIAC must exercise its own judgment in addressing this issue, which is ultimately one of fact. It should not be deterred from treating conduct as torture by the fact that other states do not attach the same label to it. The standard that it should apply is that which we would wish to apply in our own time to our own citizens.
127. For these reasons, although I take a different view from my noble and learned friend Lord Bingham as to the advice that should be given to SIAC, I too would allow the appeals and make the order that he proposes.
LORD RODGER OF EARLSFERRY
128. I have ultimately come to agree with your Lordships that the appeal should be allowed, but, I confess, I have found the issue far from easy. In resolving it, I have derived considerable assistance from the closely reasoned judgments in the Court of Appeal. Unfortunately, outside the courts, the decision of the majority, Pill and Laws LJJ, has been subjected to sweeping criticisms which to a large extent ignore their reasoning and the very factors which led them to their conclusion.
129. It should not be necessary to emphasise that the difficulties which troubled the majority in the Court of Appeal and which have troubled me do not arise from any doubt about the unacceptable nature of torture. That has long been unquestioned in this country. The history of the matter shows that torture has been rejected by English common law for many centuries. In Scotland, torture was used until the end of the seventeenth century. For the most part, when used at all, torture seems to have been employed to extract confessions from political conspirators who might be expected to be more highly motivated to resist ordinary methods of interrogation. Such confessions would often contain damning information about other members of the conspiracy. Eventually, section 5 of the Treason Act 1708 declared that no person accused of any crime can be put to torture. The provision is directed at those accused of crime, but this does not mean that Parliament would have been happy for mere witnesses to crime to be tortured. On the contrary, it is an example of the phenomenon, well known in the history of the law from ancient Rome onwards, of a legislature not bothering with what is obvious and dealing only with the immediate practical problem. By 1708, it went without saying that you did not torture witnesses: now Parliament was making it clear that you were not to torture suspects either. So the prohibition on the torture of both witnesses and suspects is deeply ingrained in our system. The corollary of the prohibition is that any statements obtained by officials torturing witnesses or suspects are inadmissible. Most of the considerations of public policy which lead courts to reject such statements are equally applicable to torture carried out abroad by foreign officials. The question for the House is whether that general approach applies to proceedings in SIAC under the Anti-terrorism, Crime and Security Act 2001 ("the 2001 Act").
130. Information obtained by torture may be unreliable. But all too often it will be reliable and of value to the torturer and his masters. That is why torturers ply their trade. Sadly, the Gestapo rolled up resistance networks and wiped out their members on the basis of information extracted under torture. Hence operatives sent to occupied countries were given suicide pills to prevent them from succumbing to torture and revealing valuable information about their mission and their contacts. In short, the torturer is abhorred as a hostis humani generis not because the information he produces may be unreliable but because of the barbaric means he uses to extract it.
131. The premise of this appeal is that, despite the United Nations Convention against Torture and any other obligations under international law, some states still practise torture. More than that, those states may supply information based on statements obtained under torture to the British security services who may find it useful in unearthing terrorist plots. Moreover, when issuing a certificate under section 21 of the 2001 Act, the Secretary of State may have to rely on material that includes such statements.
132. Mr Starmer QC, who appeared for Amnesty and a number of other interveners, indicated that, in their view, it would be wrong for the Home Secretary to rely on such statements since it would be tantamount to condoning the torture by which the statements were obtained. That stance has the great virtue of coherence; but the coherence is bought at too dear a price. It would mean that the Home Secretary might have to fail in one of the first duties of government, to protect people in this country from potential attack. Not surprisingly therefore, Mr Emmerson QC for the appellants was at pains to accept that, when deciding whether to issue a certificate, the Home Secretary was not obliged to check the origins of any statement and could take it into account even if he knew, or had reason to suspect, that it had been obtained by torture. But, he submitted, when SIAC came to discharge its functions under section 25 or 26 of the 2001 Act, in any case where the issue was raised, it could not take account of a statement unless the members were satisfied, beyond reasonable doubt, that it had not been obtained by torture.
133. On this approach there is a stark disjunction between what the Home Secretary can properly do and what SIAC can properly do. It is, of course, true that, because of public interest immunity or section 17(1) of the Regulation of Investigatory Powers Act 2000, a party to a litigation may not be able to lead evidence of a matter which it was nevertheless legitimate for him to take into account. Such analogies cast little light, however, on a situation where the disjunction arises between sections in the same Act.
134. Parliament gave jurisdiction in proceedings under sections 25 and 26 of the 2001 Act to SIAC, which had been established by the Special Immigration Appeals Act 1997 in order to meet the criticisms of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413. SIAC is tailor-made to deal with sensitive cases where intelligence material has to be considered. One member of the court will have had experience in handling such material. Section 18(1)(e) of the 2000 Act disapplies section 17(1) and so allows the Commission to consider the content of intercepts. Rule 44(2) of the Special Immigration Appeals Commission (Procedure) Rules 2003 allows the Commission to receive evidence in documentary or any other form, while rule 44(3) allows it to receive evidence that would not be admissible in a court of law. By giving jurisdiction to SIAC, Parliament must have intended that the appeal or review should be considered by a body that was not bound by the ordinary rules of evidence and that was, in general, free to consider all the material that the Home Secretary had taken into account when issuing his certificate. Not surprisingly, therefore, in section 29(1) Parliament provided that any action of the Secretary of State taken wholly or partly in reliance on a section 21 certificate could be questioned only in legal proceedings under section 25 or 26 or under section 2 of the 1997 Act - proceedings in other courts would not be satisfactory since they would not be able to consider the same range of material. Of course, after the certificate was issued, material might often come to hand which strengthened, or even superseded, the material on which the Home Secretary had relied. Conversely, new evidence, or criticism of the existing evidence during the hearing, might undermine the basis for the Home Secretary's decision. SIAC can take account of all that. What is not immediately clear, to me at least, is that Parliament would have contemplated that the specialist tribunal would have to shut its eyes to statements which the Home Secretary was entitled, or perhaps even bound, to take into account. Why should the Secretary of State be entitled to use such a statement to issue a certificate under section 21 if, in default of any additional information, SIAC is then bound to cancel that certificate under section 25 because the members cannot look at the critical statement?
135. My noble and learned friend, Lord Nicholls of Birkenhead, seeks to resolve the dilemma on the basis that the Secretary of State's certificate is in the nature of an essential preliminary step, which will be short-lived in its effect if SIAC considers that the necessary reasonable grounds do not exist. So the definitive decision is taken by SIAC, which is subject to the ethical rule that information obtained by torture is not admissible in court proceedings as proof of facts. Potentially attractive though such an analysis is, it is rather difficult to square with the fact that, if there is no appeal, SIAC is not required to review the Home Secretary's certificate for six months after it has been issued: section 26(1). A certificate which Parliament regards as sufficient warrant for a suspect's detention for six months is not, in essence, short-lived or a mere preliminary step. And, the appellants concede, such a certificate can properly be based on a statement obtained by torture.
136. According to the appellants, it is an abuse of process for the Home Secretary to produce evidence of a statement obtained by torture in proceedings before SIAC. In my view it is an abuse of language to characterise the Home Secretary's action as an abuse of process. He does not instigate the process before SIAC and seeks no order from the Commission: he merely seeks to resist an appeal brought against his decision or to withstand a review of that decision. It was perfectly proper for him to rely on the statement when issuing his certificate. There is therefore no abuse of executive power in this country for SIAC to punish by rejecting the statement and it is no part of the function of British courts to attempt to discipline officials of a friendly country. Besides anything else, the idea that foreign torturers would pause for a moment because of a decision by SIAC to reject a statement which they had extracted verges on the absurd.