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Separation of powers – evidence obtained by torture not admissible in any UK court – government arrangements not lawful

Friday 9 December 2005 at 7:39 am | In News | Post Comment

A and others v Secretary of State for the Home Department [2005] HL
D the Home Secretary who had allowed evidence obtained outside the UK by torture to be used as evidence at a hearing of the Special Immigration Appeals Commission (SIAC). The evidence was used to detain, without trial, 8 men at Belmarsh prison. The argument against the government was that the European Convention forbids torture and therefore any such evidence obtained through such treatment of anyone cannot be admissible in a British court.

Held: Unanimously, the common law developed over centuries should take precedence over SIAC’s practices. Lord Bingham: “But the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.”

D lost
Comment: The law has existed for hundreds of years that evidence obtained under torture was unable to be used in court. The question was whether such evidence was admissible in a Special Immigration Appeals Commission case. It is not.

The ruling will require Home Secretary to review all other cases where evidence used to convict terror suspects was obtained from sources kept secret.

This is a huge embarrassment for the Government for the second time in a year the Judiciary has ruled against the Government’s approach to terrorism. The Home Secretary Charles Clarke has tried to play down the significance of the ruling. The previous humiliation was over the indefinite detention of foreign nationals; such detention was found to be illegal and it forced ministers to draw up fresh legislation to replace it.