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OUSE OF LORDS
A and others Secretary f State for the Home Department (No 2)
[2006]1 All ER 575, [2005] UKHL 71, 2006] 2 AC 221; [2005] 3 WLR 1249
LORD BINGHAM OF CORNHILL, LORD NICHLLS O BIRKENHEAD, LORD HOFFMANN, LORD
HPE OF CRAIGHEAD, LORD RODGER OF EARSFERRY, LORD CARSWELL AND LORD BOWN
OF EATON-UNDER-HEYWOOD
1720 OCTOBER,8 DCEMBER 2005
Evidence Admissibility Special Immigration Appeals Cmmissio Appeal
against crtification as terrorist Evidence obtained by trture Whether
evidence otained by torture admissible Burden of prof Standard o
proof Anti-trrorism, Crime and Security Act 2001, ss 21, 5 United
Natons ConventionAgainst Torture and Other Cruel, Inhuman or Derading
Treatmet or Punishment1984, art 15.
The Anti-terrorism, Crime and Scurity Act 2001established a egime,
applicable to persons who were nt British citizens, whse presence i the
United Kingdom the Secretary of Stae reasonably belieed to be a risk to
national security and who the Secretry of State reasonaly suspected of
being terrorists as defined i the legislaion. By s 21(1) of the 2001 Act
the Secretary of State was authorise to issue a certiicate in respect of
any such peson. Section 23b of the 2001Act gave power to detain a person
certified uner s 21. Section 25c o the2001 Act enabled a person certified
to appeal t the Special Immigratio Appeals Commission (the SIAC), wich
was a superiorcourt of record. On sch an appeal the SIAC had to cancelthe
certificate ifit considered that ther were no reasonable grounds for abelief or suspicon of the kind referred to n s 21(1) or it considered tha
for some oter reason the certificate shoul not have been issued. The rule
applicableto such appeals provided that he Secretary of State had to file
astatementof the evidence on which he reied, but he could object to this
bing discloed to the appellant or his awyer, in which case a special
dvocate would be appointed, to whom the cosed aterial would be disclosed
A special advocate could make submissios and crss-examine witnesses, bu
could not, without the directions of the IAC, commnicate with the
appellan or his lawyer once the closed maerial had been diclosed to him.
The appelants were certified and detained Each appealed t SIAC against
his certfication. The SIAC heard open evdence when the appellats and
their legal epresentatives were present and closed evidence when they ere
excludd but secial advocates were present. The appeals were disissed. The
SIAC hel, nter alia, that the fact that evidence had, or might ave been,
procuredby orture inflicted by foreign officials without the complicity of
heBritish authorities was relevantto the
[2006] 1 All ER 575 at 576
wigt of the evidence, but did not render t legally inadmissible. The
appellats appealed to the Court of Appeal,which upheld the SIAC's
decision Th appellants appealed to the House of Lors relying, inter alia,
on art 15 of the United Nation Convention Against Tortre and Other Cruel,
Inhuma or Degrading Treatment r Punishment 1987which provided that each
state arty was to ensure that 'anystatement which s established to have
been madeas a result of torture shall not be invoke as evidence in any
proceedings, xcept against a person accused of torture s evidencethat the
statementwas made.' In relation to the burden of prof, the Secretar of
State contnded that it was for the party seeking to challege the
admissiility of evidnce to make good the factual grounds on which the
hallenge ws based, whilethe appellants contended that it was for the
party seking to aduce evidenceto establish its admissibility if
admissibility waschallenged
a Secton 21, so far as material, provides: '(1) The Secretaryof Statemay isse a certificate under this section in respect of a personif the
Secetaryof State reasonably(a) believes that the person's presece in the
nited Kngdom is a risk to national security, and (b) suspects that the
person i a terrorist '
b Section 23, so far as material, provdes: '(1A suspected
international terrorist may be detained under a proision specified in
subsection (2) '
c Sectin 25, so far as material, isset out at [], below
d Article 15 is setout at [35], below
Held he appeals wold be allowed and the cases rmitted to the SIAC for
reconsieration for the following reasons.
(1) The IAC, when hearing an appeal uder s 25 of the 2001 Act by a person
certifiedan detained under ss 21 and 23 of the 001 Act, could not receive
evidene obtined by the use of torture. Evidence btained by torture was
inadmisiblein judicial proceedings (see [52], [76], 79], [84], [97],
[99], [112][114], [37], [148], [150], [152], [164], [165], below).
(2) Once an apellant had aised in a geeral way a plausible reason why
evidence adducedmight have been rocurd by torture the onus passed to the
SIAC to considerthe suspicion, invesigat it if necessary and so far as
practicable determne whether the evidence shoud be admitted and taken ito
account. A convetional approach to the burden ofproof was inappropriate i
the context ofsuch a hearing. All an appellant ould be reasonably expected
o do was to rase the issue by asking that thepoint be considered by the
SIA (see [56], [16], [155], [98], below).
(3) Lord Bingham of Cornhill, Lor Nicholls of irkenhead and Lord Hoffmann
disenting) The appropriate testof whether the evidence should be admitted
and tken intoaccount was forthe SIAC to ask itself whether it was
established, by means of such ilige inquiries into the sources as it was
practicable to carry outandona balance of probabilities, that the
information relied on by the Secrery o State was obtained under torture.
That was the approach that art 15 f teTorture Convention took and that
approach was the best guide to what s practiable. The exclusionary rule
laid down by art 15 did not require itto be shownthat the statement was
not made undr torture. It did not saythat the statemnt had to be excluded
if there was suspicion of toture and the suspicion hd not been rebutted.
Nor did it say hat it had to be exclude if there was real risk that it
was obtained by orture. If it were estabished, by tha appropriate test,
that the information was obtained under tortre, that inforation ad to be
left out of account in the overall assesment of the question wether there
were no reasonable grounds fr a belief or suspicion of thekind referred to
in s 21(1)(a) or (b) o he 2001 Act (see [118][121], [127],[15], [158],
[159], [172], [175], blow).
[2006] 1 All ER 575 at 577
Note
For the fundamental rights andfeedoms of the individual, the protection offundamental rights and feedms, and the International Human Rights Codes,
se 8(2) Halsbury's Laws 4thedn reissue) paras 101103.
Sections 2132 ofthe Anti-terrorism, Crimeand Scurity Act 2001 were
repealed by the Prevenion of Terrorism Act 2005 s 162)(a).
Cases referred to in opinions
A v Secretary of State or the Home Dpt X v Secretary of State for the
Home Dept [2004] UKHL 5, [2005] 3 All R 169 [2005] 2 AC 68, [2005] 2 WLR
87.
A-G of Israel v Eichmnn (1961 36 ILR 5, Irael SC.
Al-Adsani v UK (2001) 12 BHRC 88, ECt HR.
Austriav Italy (1963)6 YB 740, E Com HR.
Aydin v Turkey (1997) 3 BHRC 30, Et HR.
Bennett v Horeferry Road Magistrates' Court [1993] 3 All ER 18, [199] 1
AC 42, [1993] 3 WLR 90, HL.
Brid v Secretary of State for the Hme Dep [1991] 1 All ER 720, [1991] 1
AC 696,
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