A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) (2004); A and other (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals)

Court	House of Lords, Great Britain (UK)
Case number	[2005] UKHL 71
Decision title	Opinions of the Lords of Appeal for Judgment in the Cause
Decision date	8 December 2005
Parties	A B C D E F G H Mahmoud Abu Rideh Jamal Ajouaou Secretary of State for the Home Department
Other names	A v. Secretary of State for the Home Department (No. 2)
Categories	Torture
Keywords	Torture (interrogation methods); terrorism; evidence
Links	Opinions of the Lords of Appeal for Judgment in the Cause: A (FC) and others (FC) v. Secretary of State for the Home Department

Summary

Ten men were certified by the Secretary of State as suspected international terrorists and were detained in the Belmarsh prison in London. The certification was made on the basis of information obtained by torture (infliction of severe pain or suffering on a person in order to obtain information). The men appealed their certification and claimed that the tainted information should not have been admitted. The House of Lords held that such information, indeed, should not have been admitted and allowed the appeals.

Procedural history

Between May and July 2003, the ten applicants appealed under section 25 of the Anti-terrorism, Crime and Security Act 2001 their certifications as ‘suspected international terrorist’. The applicants appealed on the ground that the common law forbids the admission of evidence obtained by the infliction of torture. They claimed that any court should dismiss such evidence as an abuse of its process.

On 29 October 2003, all appeals were dismissed. On 11 August 2004, the dismissals were upheld by the Court of Appeal.

Related developments

The Anti-terrorism, Crime and Security Act 2001 was replaced by the Prevention of Terrorism Act 2005 and the latter has been repealed by section 1 of the Terrorism Prevention and Investigation Measures Act 2011.

In 2013, the ECtHR held in Abu Qatada v. UK that Abu Qatada could not be deported to Jordan, because the trial that he faced there would likely involve the admission of torture evidence. Qatada was eventually deported from the UK to face retrial in Jordan not before a binding agreement between the two countries that evidence-obtained-by-torture would be discarded. In the event, it was discarded, and Qatada was freed of all charges in 2014.

Legally relevant facts

Eight applicants were certified and detained in December 2001. The other two were certified and detained in February and April 2002 respectively. All of them appealed their certification as suspected international terrorist.

The Special Immigration Appeals Commission (SIAC) is required to review every certificate and form its own view on whether there are reasonable grounds to believe that a person’s presence poses a risk to national security and for suspecting this person of being a terrorist (sections 25-26 of the Anti-terrorism Crime and Security Act).

Core legal questions

Could an English court admit information extracted under torture as evidence in its proceedings? (para. 67)

Specific legal rules and provisions

Anti-terrorism, Crime and Security Act, 2001, UK:

Section 22 - Deportation, removal

Section 23 - Detention
Section 25 - Appeal
Section 26 - Periodic review

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 3 - Prohibition of torture
Article 6 - Right to a fair trial

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, UN General Assembly:

Article 1 - Definition of torture
Article 2 - Effective measures
Article 3 - Non- refoulement principle
Article 4 - Torture as offence under criminal law
Article 15 - Statements obtained by the infliction of torture
Article 16 - Prevention

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1975, UN General Assembly:

Article 1 - Definition of torture
Article 2 - Torture and ill-treatment as offence to human dignity
Article 3 - No justification for torture or ill-treatment
Article 4 - Effective measures
Article 12 - Statements obtained by torture or ill-treatment

Convention on the Prevention of Terrorism, 2005, Council of Europe:

Article 3 - National prevention policies

Court's holding and analysis

The House of Lords discussed in length the prohibition of torture and the use of evidence obtained through torture, and decided to allow the appeals.

Lord Bingham of Cornhill held that the SIAC must act on lawfully obtained information when deciding whether a person could be certified as suspected international terrorist (paras. 49-50).

Lord Nicholls of Birkenhead further said that in countering terrorism, police and security forces might use information obtained by torture in ticking time bomb situations. However, the use of tainted information in legal proceedings was considered to be different because the executive and the police usually ‘do not impinge upon the liberty of individuals’ when exercising their powers, and often there is an urgent need for them to act (paras. 68-72). In addition, Lord Nicholls of Birkenheadalso held that SIAC exercises judicial functions when it reviews certificates of suspected international terrorists and therefore, the prohibition on the use of evidence obtained by torture applied (paras. 74-76).

Lord Carswell pointed out that the rationale for the prohibition of admission of evidence obtained by the infliction of torture is twofold. Firstly, he held that the evidence is inherently unreliable, and secondly, that the prohibition is based on the ‘morality of giving any countenance to the practice’ (para. 147).

Further analysis

F. Bennion, ‘Evidence Obtained by Torture’, Constitutional Crisis: Special Report 4, 2005, pp. 989-995.

B. Gasper, ‘Examining the Use of Evidence Obtained Under Torture: The Case of the British Detainees May Test the Resolve of the European Convention in the Era of Terrorism’, American University International Law Review, 2005, Vol. 21(2), pp. 277-325.

T. Thienel, ‘The Admissibility of Evidence Obtained by Torture under International Law’, The European Journal of International Law, 2006, Vol. 17(2), pp. 349-367.

T. Thienel, ‘Foreign Acts of Torture and the Admissibility of Evidence: The Judgment of the House of Lords in A and Others v. Secretary of State for the Home Department (No. 2)’, Journal of International Criminal Justice, 2006,Vol. 4(2), pp. 401-409.

S. Shah, ‘The UK's Anti-Terror Legislation and the House of Lords: The Battle Continues’, Human Rights Law Review, 2006, Vol. 6 (2), pp.416-434.

A. Lynch, ‘Use of overseas evidence in terrorism offences: The implications of the Commonwealth’s new scheme for defendants and the courts’, Australian Bar Review, 2006, Vol. 27, pp. 288-313.

J. Duberstein, ‘Excluding Torture: A Comparison of the British and American Approaches to Evidence Obtained by Third Party Torture’, North Carolina Journal of International Law & Commercial Regulation, 2007, Vol. 32, pp. 159-194.

K. Ambos, ‘The Transnational Use of Torture Evidence’, Israel Law Review, 2009, Vol. 42, pp. 362-397.

Instruments cited

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe

Special Immigration Appeals Commission Act, 1997, UK

Anti-terrorism, Crime and Security Act, 2001, UK

Resolution 1433 on the Lawfulness of Detentions by the United States in Guantanamo Bay, 2005, Parliamentary Assembly of the Council of Europe

Resolution 49/60 (1994), UN Security Council

Resolution 51/210 (1996), UN Security Council

Resolution 1269 (1999), UN Security Council

Resolution 1373 (2001), UN Security Council

Resolution 1566 (2004), UN Security Council

Resolution 59/290 (2005), UN Security Council

Additional materials

‘Torture evidence inadmissible in UK courts, Lords rules’, The Guardian, 8 December 2005.

‘Lords reject torture evidence use’, BBC News, 8 December 2005.

‘U.K.: Highest Court Rules Out Use of Torture Evidence’, Human Rights Watch, 8 December 2005

S. Lyall, ‘British Court Rules Against Evidence Gained in Torture’, The New York Times, 8 December 2005.

‘Landmark House Of Lords Decision In Torture Evidence Case’, Redress, 8 December 2005.

N. Morris, ‘Law lords ban evidence gained under torture’, The Independent, 9 December 2005.

‘UK: Law Lords confirm that torture ““evidence”” is unacceptable’, Amnesty International, 10 December 2005.

C. Marsden and J. Hyland, ‘Britain’s law lords reject use of torture evidence’, World Socialist Web Site, 14 December 2005.

‘Terror suspect wins control case’, BBC News, 4 April 2007.

‘Mahmoud Abu Rideh’, Amnesty International, 19 June 2008.

Social media links

’UK May Not Use Torture Evidence - Lords' Ruling’, Daily Kos, 8 December 2005.

‘The UK House of Lords Says Evidence Obtained Under Torture is Never Admissible in Judicial Proceedings’, OMCT, 9 December 2005.

‘The Lords say "no" to torture’, No Right Turn, 9 December 2005.

‘Separation of powers – evidence obtained by torture not admissible in any UK court – government arrangements not lawful’, Law Weblog, 9 December 2005.

‘Non-Admissibility of Evidence Extracted by Torture: “The Tainted Fruit of the Poisonous Tree”’, Atlas of Torture, 3 February 2009.

‘Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws’, Andy Worthington, 3 July 2009.

A. Wagner, ‘Fruit of the poisoned tree: evidence obtained under torture in the UK’, UK Human Rights Blog, 7 October 2010.